Date of Filing:16/08/2017

Date of Order:16/05/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 16^THDAY OF MAY 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.2284/2017

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT

1. This is the complaint filed by the complainant against the Opposite Party(hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986  praying this Forum to direct the O.P to pay a sum of Rs.13,408/- and compensation of Rs.5,000/- per day till 09.08.2017 for the occupation of the space by the bed and Rs.1,000/- per day from 10.08.2017 till the O.P removes the same from his house and Rs.15,000/- per day for the time spent  regarding the issues with O.P and for mental pain and sleepless night.

2.   The contention raised by the complainant is that, he ordered for a bed from O.P on 14.05.2017 by paying Rs.13,408/-.  After the waiting period of 20 days, the same was delivered on 3.6.2017. Since the colour of the bed ordered and the one supplied, was significantly different he raised a complaint with O.P on 3.6.2017 and he was informed on 5.6.2017 that their technician would attend on 8.6.2017. Again he was told that they will visit on 14.6.2017. On 16 .6.2017 he was informed that return has been accepted and return of the money will be done on 30.06.2017. Inspite of it, O.P did not return the same.  They were promising to send the vehicle for reverse pickup of the material. He was made to wait for two months. On 27.08.2017 he got a call from O.P that the bed was installed and it was complete and the status of refund was also cancelled.  He informed them in writing that he would file a case before the Consumer Forum in case they do not settle the refund. Inspite of it, they have not refunded the same and hence the complaint. 

3.   Upon the service of notice, O.P appeared before the Forum admitting that the complainant booked the bed through their web site and made the payment. It is the specific case that, they are only facilitators and not suppliers or manufacturers and not engaged in selling of goods manufactured on its own and at no point of time they become the owner of the products over their platform.  They are protected under Section 79 of the Information Technology Act 2000. The complaint is bad for non-joinder of party as the person who supplied the material has not been made as a party. The buyer under their platform or bound by the terms and conditions of the company. The contract of sale is bipartite contract between the buyer and the seller only, and O.P has no role to play and is not a party to it. All the contractual commercial terms are offered buy and agreed between the buyer and the seller alone. The complainant is not a consumer with him. He is not a trader or a service provider. In a market place model of e-commerce (such as Flipkart.com.) any warranty/guarantee of goods and services sold will be the responsibility of the seller.  The complainant purchased the bed from a third party seller i.e. Home Town stark engineered wood queen bed.  Hence there is no privity of contract between them and the complainant. He acts as an intermediary in the entire transaction and is limited to providing only an  online platform and nothing beyond that.   Any complaint regarding shortage of supply or deficiency in service or wrong supply of the material has to be with the supplier.  At no stretch of imagination, it can be held that they have involved in unfair business practice and deficiency in their service.  The complainant is bound by the terms of use, Flipkart does not at any point of time during any transaction between buyer and seller on the website come into or take possession of any of the products or services offered by sellers nor does it at any point, gain title too or have any rights or claims over the products or services offered by sellers on all these grounds.

4.  Though he brought to the notice the deficiency in service as complained by the complainant to the seller/manufacturer through its customer support, the said seller/manufacturer denied to provide the replacement and refund. Hence pray the Forum to dismiss the complaint by imposing compensatory cost on the complainant.

5.   In order to prove the case, both the parties have filed their affidavit evidence along with supporting documents by reiterating the facts of the complaint and the version respectively. After hearing their counsel, the following points arise for our consideration:-  

1. Whether the complaint is bad for non-

joinder of necessary party?

2)  Whether the complainant has proved

                       deficiency in service on the part of the

    Opposite Party?

3)  Whether the complainant is entitled to

the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT 1): Negative.

POINT 2): Affirmative.

POINT 3): Partly in the affirmative

as per the final order.

REASONS

ON POINTS No.1 to 3:-

7.     The complainant and the O.P have reiterated the facts of the complaint and the version in their affidavit filed in lieu of evidence respectively. There is no dispute regarding documents relied on by the respective parties.

8.     It is the contention of the complainant that he booked the bed through O.P on online i.e. Flipkart and the bed was also supplied to him.  He complained to O.P that the delivery of the bed was not inconformity with the order he had placed and requested O.P to cancel the order, take back the material and repay the amount. He has also produced the screenshot which clearly shows that he has ordered for a walnut coloured bed whereas the one supplied is of black colour and according to him which do not suits to the interior of his room.  It is also the case of the complainant that O.P agreed for taking back the said article and even  in fact he instructed him to get the said article repacked and that he will sent men for retransportation which he did not do.  Even the correspondences and emails clearly shows that the O.P has agreed to take back the said article and even informed the complainant that they will refund the amount on 30.6.2017, but to his astonishment on 28.7.2017 he received the email from the O.P that the installation of the bed has been reported successful and refused to return the amount. Hence he had to file this complaint.

9.    The contention of the O.P is that he is only a facilitator or a media or platform between the complainant the purchaser and the manufacturer or supplier and he do not handle the materials and there is no liability on him.  It is the supplier who has to take back the material in case of wrong delivery and has to return the same.  In this case since the manufacturer did not agree to take back and refund the same, he is not liable to refund the same and that since the supplier/manufacturer is not made a party to the proceedings, the same is liable to be dismissed. He has also produced the relevant rules and procedure for taking back the article supplied to the consumers, which runs into several pages.  On perusing the same  the  said rules provides for him to take back the articles supplied wrongly and to make the refund to the consumer. He cannot absolve his responsibilities.

10.   As stated above,  it is his contention that, he is only a facilitator and do not handle the materials and the manufacturer has to be made as a party and since he is not made as a party to the complaint, complaint is bad for non-joinder of necessary party. On perusing the documents filed and the correspondences between the complainant and the O.P., it becomes clear that the complainant placed an order for walnut bed whereas the O.P has supplied with black colour bed which the complainant refused to receive and want to return back to O.P. Nowhere, O.P has informed the complainant to lodge the return request and the refund request to the manufacturer/supplier. In fact only when the material was sent and invoice was raised, the complainant came to know that the supplier is one Home Town Future Retail Limited. The period for return of the goods is fixed as 10 days. The amount of Rs.13,408/- was paid by the complainant through his credit card with HDFC Bank. O.P has acknowledged the receipt of return claim on 3.6.2017.  O.P has also written to the complainant email dated 5.6.2017 regarding sending the technicians for instructions and on 16.6.2017 O.P has informed the complainant that “return created for items in your Flipkart order- OD 109158746987776000”. And the pick-up date is mentioned as 30.6.2017. It is also mentioned therein that we have accepted return request of the said item, they have mentioned the conditions for packing and handing over the material. The order details also mentions that return approved on 16.6.2017.  on 28.06.2017 O.P has again sent a letter requesting the complainant to keep the product along with original product box and tags ready for pickup by June 30.2017. On 28.07.2017 O.P has informed that the installation and demo of your home town stark engineered wood queen bed with storage was successfully done. 

11.   When all these facts and circumstances and correspondences are taken in to consideration, as soon as the complaint regarding the wrong delivery of the goods  other than the ordered one, the O.P has not at all informed the complainant to lodge a complaint for refund with a supplier of the material. All along, when the correspondences are considered, it is the O.P who has taken the responsibility of taking back the wrongly delivered goods and further informing the complainant that refund has been accepted and will be made on 30.6.2017. When such being the case, it cannot be held that the manufacturer and supplier should be a necessary party to the proceedings and that the complaint is bad for non-joinder for necessary party.

12.  He has raised a contention that the complainant is not a consumer and that he is only a facilitator making a platform for the buyer and seller. Though it may be true, only on the advertisement on the platform of the O.P the purchasers/buyers after searching for the requirements over the O.Ps website/app has placed order.  Merely the O.P do not handle the materials, that itself  will not absolve O.P from the responsibility of placing all and full details of the products and the quality of it.  If he had any doubt regarding the quality of the material and the standard of the material, he should not and ought not to have put it on his website/app.   Merely saying that he is not responsible for the defects in the material that may be supplied will not absolve him from responsibilities and which amounts to unfair trade practice. Had he informed the quality and details of the materials advertised in his website, the buyers would have thought twice before placing order or purchasing the same.  Hence in view of the non-refund of the amount by the O.P to the complainant though he agreed to pay the same on 30.06.2017 clearly amounts to deficiency in service and also practicing the trade in an unfair manner.

13.   The complainant has claimed the cost of the material i.e. Rs.13,408/-. He has also claimed Rs.5,000/- per day since the material occupied his bed room and Rs.1,000/- per day till the O.P takes out the material and Rs.15,000/- per day for the time he has spent in corresponding with O.P and also in spending time in approaching this Forum.

14.   Assuming for the moment that the material as ordered by him is delivered, he would have kept the same in his bed room for which he need not spent any money.  So also he has kept the material sent by O.P which according to him is not the one ordered by him. For keeping the same also he has not spent any money and hence he is not entitle for the relief asked in that respect.  Even he has not substantiated his claim for seeking Rs.15,000/- per day regarding spending time in respect of this case.  No doubt, he has incurred some inconvenience and may be not happy with the material supplied to him and could not enjoy the same as soon as the same was delivered, for which he has not lost financially though he has lost his enjoyment in his life. In view of the above, we are of the opinion that if interest at the rate of 12% per annum on Rs.13,408/- if ordered to be given to the complainant by the O.P and a sum of Rs.10,000/- towards the compensation for mental and physical sufferance and Rs.5,000/- towards litigation expenses would meet the ends of justice.  Hence we answer Point No.1 in the Negative, Point No.2 in the affirmative and Point No.3 Partly in the affirmative and pass the following order.

ORDER

1.  The complaint is partly allowed with cost.

2.  O.P. i.e. Flipkart represented by its Authorized Signatory is hereby directed to pay a sum of Rs.13,408/- being the cost of the bed purchased by him along with interest at 12% per annum on the above from 30.06.2017 till repayment of the entire amount. Upon the payment of the above amount complainant is directed to return the bed which has to be taken back by the O.P on his own cost.

3.  O.P  is also directed to pay a sum of Rs.10,000/- towards damages for physical and mental harassment and Rs.5,000/- towards the litigation expenses.

4.  The O.P No.1 to 3 are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 16^thDay of MAY 2018)

MEMBER                        PRESIDENT

*RAK

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1: Syam Madanapalli - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1:Copy of Invoice from Flipkart.

Doc.No.2:Copy of Credit card statement.

Doc.No.3:Copy of picture showing the colour of the produce.

Doc.No.4:Copy of the first complaint on 3.06.2017.

Doc.No.5:Copy of Technician Visit notification by O.p.

Doc.No.6: Copy of return acceptance from O.P.

Doc.No.7: Copy of order status.

Doc.No.8: Copy of concern and assurance from OP.

Doc.No.9: Copy of response for missing the return pickup by O.P.

Doc.No.10: Copy of claiming installation.

Doc.No.11: Copy of notice to O.P.

Doc.No. 12: Copy of O.P response.

Doc.No. 13: Copy of complaint against bed installation.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Mr.Amit Pratap Singh, Authorized Signatory of O.P.

Copies of Documents produced on behalf of Opposite Party/s

Doc: No.1: Copy of Terms of Use

Doc.No.2: Copy of Press Note 3 (2016 series).

MEMBER                        PRESIDENT