DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

North 24 Pgs., BARASAT

C.C. No.306/2022

Date of Filing                                   Date of Admission               Date of Disposal

23.09.2022                                      11.10.2022                              25.07.2024

P R E S E N T                                     :- Sri. Daman Prosad Biswas……….President.

                                                :- Sri.  Abhijit Basu…………………. Member.

JUDGMENT /FINAL ORDER

            Complainants above named filed this complaint against the aforesaid opposite parties praying for direction to the opposite parties to replace the machine with a new one, compensation amounting to Rs. 2,00,000/-, litigation cost amounting to Rs. 50,000/- and other reliefs.

            Complainant alleged that he bought a new Air-conditioned machine from Flipkart and paid the consideration money through credit card on 28.04.2022. Said machine was delivered to his house. Complainant asked the Flipkart to install the said machine. On 29.04.22 Blue Star Service Centre called him and asked to install the machine. He requested for installation of the machine on 01.05.2022 and they were agreed and they told that they would come on 01.05.2022.

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On that date technicians had arrived in his house and started to install the machine. Long time was taken to set up the machine and it went up to evening. Finally the machine was started. They charged Rs. 2,454/- for installation. They left the house of the complainant.

            After running of the machine for one hour cold air were not coming out from the machine. On the next day it was informed them but they did not come. On 03.5.2022 complainant got a call from Blue Star and they want to know about the installation of the machine. Complainant told them that machine was installed but the cold air was not coming out from the machine. They stated that your complaint has been accepted and technician will go on tomorrow. Next day technician came to the house of the complainant and checked the machine and told that there is no gas in the machine. Gas must be filled in but gas was not available with them. Next day they did not come. When complainant called them they said there is no gas now. They came on 07.05.2022 and filled the machine with gas and started the machine and cold air were started to come out after a while technician left.  

            After running of the machine for an hour the cold air stopped to coming out. Thereafter the complainant called the technician who came to repair the machine. Said person told the complainant to call on Monday and inform the Service Centre. Thereafter complainant booked a complaint. Technicians were supposed to come on 09.05.2022 but they did not come.

            On 11.05.2022 technician come and checked the machine and said the machine is bad with internal leakage. They further stated that since it is a new machine, the machine will be changed from where complainant bought the same.

            Thereafter the complainant sent a message to Flipkart Customer Centre. They called him back and informed about the matter. Said person told that as per their information the machine was installed on 01.05.2022 and complaint was lodged on 11.05.2022 so it cannot be returned.

            Complainant again called the Flipkart then they told the complainant that technician would go to the house of the complainant and shall submit a test report. It was informed that the technician would visit the house of the complainant on 14.05.2022. Subsequently, it was informed that the technician would visit on 15.05.2022. Later on it was informed that technician would visit on 18.05.2022. But no technician visited the house of the complainant.         

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Thereafter the complainant sent a notice through E-mail to the Flipkart on 28.05.2022. He also sent e-mail to the Blue Star on 30.05.2022. He also sent a letter to Principal Secretary, Consumer Affairs Department. He also sent a letter to Blue Star through e-mail. He further stated that he purchased the new machine but it was defective from the first moment and it will be cleared from the report of technician. He also stated that Flipkart and its nominee did not take any proper step. He also stated that all the works from opening of packet to setting up of machine was done by the technician of authorized service person i.e. Blue Star Company. Technician told that machine will be returned. But it was not done subsequently. Service Centre told that Flipkart will change the machine and Flipkart told that the manufacturer would change the machine. But no one change the same. Hence the complainant filed this case praying for aforesaid reliefs.

            O.P. No.1 appeared in this case record and submitted W.V and denied the entire allegations contending interalia that the complainant has suppressed the material facts and hence the complaint is not maintainable. He further stated that complainant might have mistakenly considered the O.P.No.1 as seller of the product. O.P.No.1 is not the seller of the product but he is an online intermediator and providing a common platform to the purchaser and independent 3^rd party seller and for that reason present complaint is bad for non-joinder of the party.

            He further alleged that O.P. No.1, Flipkart Internet Pvt. Ltd is engaged in providing training / selling facility over the internet through its Website namely rd party seller who had sold the product to the complainant through 3^rd party logistic service provider. O.P. No.1 never came in possession of the actually order product. As per update provided by the seller product was in intact condition in a sealed packet and had been delivered to the complainant and it was also confirmed by the Courier Service Provider. After receive of the grievance of the complainant on 11.05.2022 it was learnt that installation of the alleged product was not done and on 12.05.2022 product was allegedly found defective and hence demand of return was claimed.

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            Thereafter seller arranged a technician for visit but complainant was not ready for the same and hence return request was rejected by the seller and in by the O.P. No.1.

            Complainant on 03.06.2022 raised the return requests for the alleged product and same has been denied by the seller as the return policy provided by the seller had lapsed. Seller of product provided 10 days replacement policy in addition to the manufacturer’s warranty wherein buyers can claim replacement of the product if the product qualifies the quality check test arranged by the seller from the expert technicians. Thus, if the product is actually found defective by the seller within the said 10 days replacement policy and the seller provides the same to the buyer. It is evidently clear that complainant has miserably failed to avail the 10 days replacement policy that is provided by the seller of the product. If the 10 days replacement policy lapses away the sole responsibility to replacement lies upon the manufacturer and its authorized service centre. So, O.P. No.1 cannot be held liable for any deficiency in service on the part of the seller. So the present complaint is liable to be dismissed against the O.P. No.1without any consideration. ‘Flipkart Platform’ is electronic marketplace model E-commerce platform which acts as on intermediatory to facilitate sale transactions between independent third party seller and independent customers. He referred the Section 2(1)(w) of Information Technology Act, 2000. He also referred Section 79 of the Information Technology Act, 2000. He further stated that as per Section 5(1) of Consumer Protection (E-Commerce) Rules 2020 which provides for exemption to marketplace e-commerce entity under sub-Section 1 of Section 79, who complies with sub-Section 2 and 3. He further stated that O.P. No.1 neither offer nor provided any assurance for refund facility. He further stated that product purchased by the complainant had not been sold by the O.P. No.1 O.P. No.1 has no role in providing warranty of the product sold by an independent seller. He mentioned that department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India vide its press Note No.3(2016 series) in Clause 2.3 (viii) has clarified that in a marketplace model of e-commerce (such as Flipkart.com), any warranty of goods and services sold by responsibility of the seller.

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The aforesaid Press Note interalia also clarifies that seller is responsible for delivery of goods to the customers, customer satisfaction and post sales.  

            O.P No. 2 files a separate W/V denying all the material allegations contending inter-alia that the case is not maintainable, Complainant has no cause of action and Complainant suppressed the actual fact and tried to mislead this Commission. He further contended that the role of Opposite Party No. 2 is limited to providing delivery of sealed product / package as provided by the seller to the address specified by the Complainant. Complainant has not raised any averment related to tampering with the package delivered and that means the same parcel was handed over to the Complainant as it was received from the seller of the product.

He further contended that O.P No. 2 is a logistic partner only to facilitate logistic transaction between independent 3^rd party seller and independent customers. He further contended that there is no deficiency in service on his part and he is not liable to provide any replacement or pay any refund in favour of the Complainant and Complainant is not entitled to any relief against him.

            O.P No. 3 files a separate W/V denying all the material allegations made in the petition of complaint contending inter-alia that the case is not maintainable, same is misconceived and liable to be dismissed.

            O.P No. 3 is engaged in business of manufacturing and selling room Air Conditioners, Chillers, Cold Rooms and Refrigeration products and has its stores within and beyond India. He is not the guilty of deficiency in service and unfair trade practice. He at the material time had taken all necessary precautions in accordance with the practice rules and regulations as required by a Financial Service provider. He admitted that Complainant had purchased the aforesaid product from the website of O.P No. 1 on 25/04/2022. He is the manufacturer of the said product. He further contended that to prove the manufacturing defect is lying upon the Complainant but he failed to do so.

            He prayed for dismissal of the case.

Trial

During Trial Complainant filed affidavit-in-chief. O.P No. 1 filed questionnaire, Complainant filed answer. O.P No. 2 filed questionnaire, Complainant filed answer. O.P No. 3 also filed questionnaire, Complainant gave answer.

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O.P No. 1 also filed affidavit-in-chief.

O.P No. 2 also filed affidavit-in-chief.

                                                            Documents

            Complainant filed the following documents:-

1. Copy of Tax Invoice dated 27/04/2022…2 sheets…..xerox.
2. Copy of email….2 sheets…..xerox.
3. Copy of Job Card dated 01/05/2022…1 sheet…..xerox.
4. Copy of email….3 sheets…..xerox.
5. Copy of Job Card…1 sheet…..xerox.
6. Copy of document of Flipkart…….2 sheets…..xerox.
7. Copy of email….3 sheets…..xerox.
8. Copy of email of Complainant dated 28/05/2022 addressed to
9. Copy of postal receipt along with track report…..3  sheets.
10. Copy of Job Card dated 02/06/2022…1 sheet…..xerox.
11. Copy of complaint addressed to Principal Secy., Consumer Affairs Department dated 10/06/2022…1 sheet….xerox.
12. Copy of reply issued by Asstt. Director dated 25/07/2022 addressed to Complainant………1 sheet….xerox.
13. Copy of email of Complainant dated 28/08/2022….1 sheet…Xerox.
14. Copy of email of Complainant dated 29/08/2022….1 sheet…Xerox.
15. Copy of email of Complainant dated 05/09/2022….2 sheets…Xerox.

O.P No. 1 filed the following documents:-

1. Copy of Press note…22 sheets.

O.P No. 3 filed the following documents:-

BNA

            Complainant filed BNA. O.P No. 1 filed BNA. O.P No. 3 filed BNA.

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Decisions with Reasons:-

            We have carefully gone through the petition of complaint filed by the Complainant, W/V filed by the O.P No. 1, W/V filed by the O.P No. 2 and W/V filed by the O.P No. 3, affidavit-in-chief filed by the Complainant, questionnaire filed by the O.P No. 1, questionnaire filed by the O.P No. 2 and questionnaire filed by the O.P No. 3, reply filed by the Complainant, affidavit-in-chief filed by the O.P No. 1and affidavit-in-chief filed by the O.P No. 3.

We have heard the Ld. Advocate for both the sides at length.

Ld. Advocate for theComplainant argued before this Commission that the aforesaid product is not functioning properly since the date of installation because it bears manufacturing defect. Defects of the product not yet been cured properly inspite of visit of technician of the Opposite Parties on several dates.

In this situation replacement of product is highly essential.

In reply Ld. Advocate for the O.P No. 1 argued that technical person not yet been appointed for examination of the product and there is no report before this Commission about the manufacturing defect of the product. So Complainant is not entitled to any relief as per his prayer.

Ld. Advocate for the O.P No. 3 argued that there is no deficiency in service on their part so Complainant is not entitled to any relief as per his prayer.

In this context, we have carefully gone through the petition of complaint and dates of all the incidents, mentioned by the Complainant with the petition of complaint.

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Let us see the W/V of O.P No. 1. He stated in para 5:-

“That it is pertinent to note here that it is the Seller of the Product that provides 10 days replacement Policy in addition to the manufacturer’s warranty wherein buyers can claim replacement of the product if the product qualifies the quality check test arranged by the seller from the expert technicians. Thus, if the product is actually found defective by the seller within the said 10 days replacement policy, the seller provides replacement to the buyer. It is evidently clear that the Complainant has miserably failed to avail the 10 days replacement Policy that is provided by the Seller of the Product.”

Regarding sale of aforesaid type of product, seller used to give the sealed packet, thereafter, technician used to visit the house of the purchaser and he opened the sealed box and install the product.

In the present case, representative of O.P No. 1 visited the house of the Complainant and installed the product on 01/05/2022, so it is clear that sale was effected on that date. From the very beginning of installation i.e. on 03/05/2022 product was found defective because product was not functioning properly by giving cool air. Accordingly we find that regarding the defect of the product was reported before the O.P No. 1 within 10 days. So Complainant was entitled to replacement of the product as per the policy to return the product within 10 days which described by the O.P No. 1 in his W/V. It was the duty of the O.P No. 1 to replace the same immediately after receiving the complaint. But he did not do so. Even he could not cure the defect of the product by arranging repairing by his technician. His technician visited the house of the Complainant on 04/05/2022, 07/05/2022 and 11/05/2022 but problems remain in the same stage.

Knowing the said fact O.P No. 1 did not take any steps to replace the product.

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On careful perusal of the job sheet issued by the technician at the time of examination of the product, we find that on 04/05/2022 he found gas leakage, he also noted that Complainant wants to replacement.

On careful perusal of another job sheet issued by the technician at the time of examination of the product, we find that he stated “no cooling issue”. He further stated that machine has internal leakage problem.

As the O.P NO. 1 sent the said technician to the house of the Complainant to solve the problem so it is clear before us that said person definitely an expert relating to the said product. When the said technician opined that aforesaid product is suffering with “no gas,” “no cooling” and “machine has internal leakage problem”. These remarks clearly indicates that aforesaid product suffers with manufacturing defect because those problems started from the very beginning of installation of the product. When such technical report is available on the record, so there is no doubt about the manufacturing defect of the product.

In such a situation we do not find any reason for appointment of further technician for any examination of the said product.

Hon’ble S.C.D.R.C Punjab & Chandigarh in First Appeal No. 321/2019 decided on 22/02/2022 (Flipkart Internet Pvt. Ltd. Vs. Arish Juneja) held:-

“The other plea taken by the appellant / opposite party that the business of appellant falls within the definition of an “intermediary” u/S 2 (i)(w) of the Information Technology Act, 2000. There is no privity of contract with the complainant, as it merely provides an online marketplace where the independent third party sellers can list their products for sale; therefore, the sellers themselves are responsible for their respective listing of products on the website and Opposite Party is neither responsible for the products that are listed on the website by various third party sellers as well as their delivery. The payment has been received by the appellant / opposite party, therefore, it cannot be said that there is no privity of contract between the respondent / complainant and appellant / opposite party.

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Once the appellant / opposite party no. 1 has accepted the payment, then the appellant / opposite party No. 1 also along with respondent / opposite party No. 2 is responsible for delivery of short products and of the quality of products. Therefore, the ground taken in the appeal is not justified.”

In this context we find that Hon’ble N.C.D.R.C in R.P No. 1407 of 2015 (Joshi Autozone Pvt. Ltd. Vs. Col. SK Gawari) reported in ii 2016 CPJ 381 (NC) held:-

“The mere fact that a newly purchased vehicle had to be taken to the workshop on a no. of occasion is per se tantamount to deficiency in service.”

In the present case we have stated earlier that the disputed product is not functioning properly since the date of installation.

Having considered the facts and circumstances of this case, materials on record and keeping in mind the aforesaid decisions it is clear before us that the aforesaid product suffers with manufacturing defect and for that reason Complainant is entitled to replacement of the product by new one but inspite of series of communications Opposite Parties did not take any steps to replace the same. Their such type of act are nothing but deficiency in service.

            On perusal of record we find that Complainant is the consumer and O.P No. 1 to 4 are the service provider.

            Having regard to the aforesaid discussion it is clear before us that complainant has able to established his grievance by sufficient documents beyond reasonable doubt and accordingly complainant is entitled to relief as per his prayer.

            In the result the present case succeeds.

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Hence,

                        It is

                                    Ordered:-

               That the present case be and the same vide no. C.C./306/2022 is allowed on contest against the O.P. Nos. 1 to 3 and allowed exparte against the O.P No. 4 with cost of Rs. 5,000/- (five thousand) to be paid by the O.P. Nos. 1-4 to the Complainant.

            O.P No. 1-4 jointly and severally are directed to replace the aforesaid product i.e. A.C. machine by similar product i.e. similar A.C. machine after taking back the disputed A.C. machine within 45 days from this day alternatively O.P No. 1-4 jointly or severally are directed to refund the cost of the product amounting to Rs. 29,740/- (twenty nine thousand seven hundred and forty) along with interest @ 9% p.a. from the date of receipt of the amount i.e. on 27/04/2022 to till the date of actual payment in favoaur of the Complainant preferably within next 45 days, failing which complainant shall have liberty to put this order into execution.

            O.P No. 1-4 jointly or severally are directed to pay Rs. 10,000/- (ten thousand)  as compensation in favour of the Complainant for his harassment, mental pain and agony within 45 days from this day failing which Complainant shall have liberty to put this order into execution.

Let a copy of this order be supplied to both the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                                                                  President

C.C. No./306/2022

Order No: 14

Dated:-25.07.2024

Today is fixed for final order / judgment. Complainant in person is present. Ld. Advocate for the O.P No. 1, 2 is  present. Ld. Advocate for the O.P No. 3 is present.

Final Order / Judgment is ready and same is pronounced in open Ejlash.

Final Order / Judgment is kept with the record. As per Final Order / Judgment.

              It is

                                    Ordered:-

               That the present case be and the same vide no. C.C./306/2022 is allowed on contest against the O.P. Nos. 1 to 3 and allowed ex-parte against the O.P No. 4 with cost of Rs. 5,000/- (five thousand) to be paid by the O.P. Nos. 1-4 to the Complainant.

            O.P No. 1-4 jointly and severally are directed to replace the aforesaid product i.e. A.C. machine by similar product i.e. similar A.C. machine after taking back the disputed A.C. machine within 45 days from this day alternatively O.P No. 1-4 jointly or severally are directed to refund the cost of the product amounting to Rs. 29,740/- (twenty nine thousand seven hundred and forty) along with interest @ 9% p.a. from the date of receipt of the amount i.e. from 27/04/2022 to till the date of actual payment in favoaur of the Complainant preferably within next 45 days, failing which the Complainant shall have liberty to put this order into execution.

            O.P No. 1-4 jointly or severally are directed to pay Rs. 10,000/- (ten thousand)  as compensation in favour of the Complainant for his harassment, mental pain and agony within 45 days from this day failing which Complainant shall have liberty to put this order into execution.

Let a copy of this order be supplied to both the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                                                                  President