CC No.517.2015

Filed on 19.03.2015

Disposed on 27.07.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 027.

DATED THIS THE 27^th DAY OF JULY 2016

CONSUMER COMPLAINT NO.517/2015                                                                                                                                                                                           

PRESENT:

     Sri.   H.S.RAMAKRISHNA

                                PRESIDENT

                        Smt. L.Mamatha, B.A., (Law), LL.B.

                                 MEMBER

                                              V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1.        This Complaint was filed by the Complainant on 19.03.2015 u/s 12 of the Consumer Protection Act, 1986 and praying to pay a sum of Rs.50,000/- as damages, Rs.50,000/- towards the mental stress, agony suffered by the complainant with legal expenses and other reliefs.  

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that on 6^th day of October 2014, the Opposite Parties had hosted ‘THE BIG GILLION DAY’ in their Company Website i.e., www.flipkart.com and as per the policy of their Company, there was no cancellation or refunds for the bookings/orders placed on that day.  The Opposite Parties had made various representations to the public in general over the website by giving discounts on various products listed in the Website. On the basis of the representations of the Opposite Parties, the complainant had placed several Orders of various products from the Opposite Parties company Website i.e., www.flipkart.com on 6^th day of October 2014 on the occasion of ‘THE BIG BILLION DAY’.  The orders placed by the complainant have been accepted and approved by the Opposite Parties.  The details of the Orders placed by the complainant are given herein below.

All of a sudden at about 10.38 pm, to the shock and surprise, the complainant has received an SMS from the 1^st Opposite Party that an amount of Rs.500/-has been credited to the complainant’s account in Flipkart as a token of appreciation. In order to ascertain he exact reason for unilaterally depositing he amount in the complainant’s Flipkart Account, the complainant called upon the Flipkart customer care for about 6 times but all the customer support executives gave a vague and evasive reply that there was duplicate orders from his account and others gave a reason that there was a technical glitch in the website and a price error for those products and hence they have cancelled the Orders placed by the complainant causing undue hardship and great loss. Even though, 1^st Opposite Party had accepted and approved the orders/offer placed by the complainant, the 1^st Opposite Party has unilaterally cancelled the Orders without assigning a proper reason and without eh knowledge and consent of the complainant.   The details of the Orders that have been unilaterally cancelled by the 1^st Opposite Party as under.

(In respect of Sl.No.8 of the 2^nd table, the final cost of the refrigerator after 10% cash back comes to about Rs.12,195/-, as the said order was placed through Citibank credit card and at the time of placing the order for refrigerator, an additional offer of 10% cash back was provided).  The 1^st Opposite Party had invited the general public to buy various products at discounted prices and now all of a sudden 1^st Opposite Party has cancelled the products ordered by the complainant unilaterally and without his knowledge and consent.  When enquired about the same from the customer executives of the 1^st Opposite Party, the complainant was given a vague and evasive reply, which is totally unreasonable and unacceptable and even the calls made to 1^st Opposite Party customer support executives were rejected/disconnected in middle of conversation.   This unilateral decision of the Opposite Parties, cancelling the Orders placed by the complainant and that too without the complainant’s consent and knowledge and also having received the payment from the complainant in one of the Order has caused great hardship and loss to the complainant.  This act of the Opposite Party has caused a mental agony to the complainant.   on 07^th day of October 2014 at about 3.30 p.m the complainant had been to 1^st Opposite Party head office located at Koramangala and discussed this issue with one Hashima Bakshi and Anushree saxsena and they assured the complainant that they would rectify and resolve the issue at the earliest. On 8^th of October 2014 at about 11.01 pam the complainant has received an email from flipkart that they would deliver the product ordered or even a better product at the same price and sought time till 10.10.2014.   The complainant had called up 1^st Opposite Party’s head office over the phone and he was told to wait for a call back from Anushree Saxsena, but however neither there was a phone call from Anushree Saxsena nor from a customer support team of the 1^st Opposite Party.   on 13.10.2014 at about 9.20 pm, the complainant received an email from flipkart that they would deliver he refrigerator within 24 to 48 hours but the complainant haven’t received the product from the 1^st Opposite Party.   Further at about 10.54 p.m of the same day the 1stop sought time till 15.10.2014 to update about the status of the product delivered.   However, the complainant again placed an order separately and bought the product which is unconnected to the issue on hand.   On 13.10.2014, again the complainant spoke to a person from the flipkart head office and he was assured about the delivery of the products described in the 2^nd table and also asked him to wait till 15.10.2014.  On 14.10.2014, the complainant spoke to customer support team of the 1^st Opposite Party in respect of all the orders placed by him but all his efforts went in vain as they failed to provide a proper resolution in respect of those orders.   Further, he has all the supporting documents to show that the orders placed by him were approved, before the said orders were cancelled unilaterally.   On 15.10.2014, the complainant spoke to a customer support executive of the 1^st Opposite Party and he was asked wait for a day more i.e., till 16.10.2014 to give an exact update in this regard and also assured him that the issues will be resolved.  Further, when enquired with the executive as to whether there was any technical issues on 6.10.2014 in respect of Moto E cellphone orders,   the customer support executive said that there was no technical issues but the product was out of stock due to heavy bookings from the customers.   It is pertinent to note that, at the time booking the products as mentioned in table 1 & 2, the products were in stock.  Only and only if the product is in stock, a customer can place an order, otherwise it would ask for an email id to notify the customer as soon as the products are in stock.  On 15.10.2014 one of the order i.e., Micromax LED TV of 40 inches was delivered to the complainant after rescheduling the delivery date and timings unilaterally from the Opposite Parties side without the complaint’s consent and opinion, even though the product was scheduled to be delivered on 6.10.2014 itself.   The said product was rescheduled for about 3 to 4 times without bringing he same to complainant’s notice, causing great hardship and loss, as the complainant had to wait to receive the product from the logistics. However, the said product was delivered on 15.10.2014 in the morning and the Opposite Parties advised the complainant to wait for installation and demo from their authorized personals.  The authorized personals came in the afternoon and opened the product but to the shock and surprise, the said product had a broken panel and immediately it was complained by the complainant and the authorized personals to the 1^st Opposite Party for replacement.  The said act of delay in providing the product and replacement has caused mental agony and hardship.   On 16.10.2014, the complainant spoke to the legal executive of flipkart in the afternoon and also in the evening and the said legal executive replied him that the matter has been escalated and the matter is resolved at the earliest.  As per the policy of the Flipkart on the occasion of the ‘THE BIG BILLION DAY’ there is no option to either cancel the Order placed or to refund the amount received on the Order placed.  However, the act of the Opposite Parties is totally contrary to the policy made by them only.   Hence, having no other option the complainant was constrained to issue a Legal Notice on 16.10.2014 calling upon the Opposite Parties to resolve the issue.  The Legal Notice dt.16.10.2014 calling upon the Opposite Parties to resolve the issue.  The Opposite Parties No.1 & 2 gave evasive separate replies, but not comply with the Legal Notice.  Hence, this complaint.

3.      In response to the notice, the Opposite Parties 1 to 4 put their appearance through their counsel. The Opposite Parties 1 & 2 have filed in their separate version. In the version of OP1 pleaded that the Opposite Party No.1 operates its trading facility platform over the internet under the domain name www.flipkart.com and has developed a website under the said name and is engaged in the business of online marketplace, providing platform/technology and other mechanism to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers, enables dealing in various multiple categories of goods including but not limited to movies, music, games, mobiles, cameras, computers, apparels, footwear, healthcare and personal products, home appliances and electronics, etc. The Opposite Party No.2 does not sell any products on its own.   The Opposite Party No.3 & 4 are the employees of Opposite Party No.1.  The complainant is not a consumer of this answering Opposite Party No.1 under the provision of the Consumer Protection Act.  There is no privity of contract between the complainant and Opposite Party No.1 and therefore, the complaint is not maintainable either in law or on facts and is liable to be dismissed in limine against Opposite Party No.1.  As an intermediary involvement of Opposite Party No.1in the entire transaction only providing the online platform and nothing beyond this.   The Opposite Party No.1 does not sell any products on its own.   The Opposite Party No.1 provides online platform where different registered sellers sell their products and visitors/buyers shall purchase such products from the respective sellers on the aforesaid website.  Services of Opposite Party No.1 are similar to a shopping mall where various shops are rented out to various sellers and in case of any issued with the goods sold by such shop owners in the shopping mall; it is the shop owner who is held liable for any deficiency in service and not the shopping mall.  This Opposite Party No.1 is like a shopping mall and the registered sellers are like the various shop owners in the mall.  The Opposite Party No.1 is not involved in the entire transaction except for providing the platform and the contract is only between the seller and the complainant and hence this Opposite Party No.1 cannot be held liable for any liability owing to such bilateral contract.  The users of the website are bound by the Terms of Use enumerated on the website which clearly state that the contract of sale is between the buyer and the seller. The uses of the Website are bound by the Terms of Use enumerated on the Website at

 4.   The Opposite Party No.2 filed a separate version.  In their version pleaded that the Opposite Party No.2 is an online reseller and one of the registered sellers on the marketplace website www.flipkart.com and has acquired good market reputation for its range of products and exceptional customer support.  The said complaint has been filed with malafide intentions to harass the Opposite Party No.2.  The complaint is not maintainable either in law or on facts and is liable to be dismissed in limine.  The complaint is devoid of merits, there is no dispute as contemplated under the Consumer Protection Act between the complainant and the Opposite Party No.2 and the reliefs prayed for being unreasonable and unsustainable in law.  The orders mentioned from Sl.No.1 to 7 were cancelled by the Opposite Party No.2 since there was an inadvertent price error on the Website while listing the Moto E Cellphones.  The Opposite Party No.2 sells on very thin margins and in the instant case, it was not possible for this Opposite Party No.2 to sell the Moto E Cellphone at such a low price of Rs.1,500/- was an error and not intentional.   Further the Order in Sl.No.8 in the complaint was cancelled due to some technical issues.   As per the Disclaimer in the Terms of Use of the website www.flipkart.com, orders may be cancelled by the seller in an event of price error due to technical issue or typographical error amounts of Rs.1,500/- in case of orders placed from Sl.No.1 to 7 and Rs.2,000/- in case of Sl.No.8 were credited to the complainant’s Flipkart wallet balance for the inconvenience caused to the complainant.  There has been any deficiency in service on the part of the Opposite Party No.2. Hence prays for dismissal of the Complaint.

5. The Opposite Party No.3 & 4 on 26.06.2015 filed a Memo adopting the version filed by the Opposite Party No.1.

6.      The Complainant filed his affidavit by way of evidence and closed his side. On behalf of Opposite Party No.1, the affidavit of one Sri.Anushree Saksena has been filed.  On behalf of the Opposite Party No.2, the affidavit of one Sri.Panduranga Acharya has been filed.   Heard the arguments of both parties.  

7.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainant is entitled?

8.      Our findings on the above points are:-

                   POINT (1):- Affirmative

                   POINT (2):- As per the final Order

REASONS

9.      POINT NOs. 1 & 2:        It is the case of the complainant that on 6^th day of October 2014, the Opposite Parties had hosted ‘THE BIG GILLION DAY’ in their Company Website i.e., www.flipkart.com and as per the policy of their Company, there was no cancellation or refunds for the bookings/orders placed on that day.  The Opposite Parties had made various representations to the public in general over the website by giving discounts on various products listed in the Website. On the basis of the representations of the Opposite Parties, the complainant had placed several Orders of various products from the Opposite Parties Company.  The orders placed by the complainant have been accepted and approved by the Opposite Parties.  The details of the Orders placed by the complainant as under. 

At about 10.38 pm, to the shock and surprise All of a sudden at about 10.38 pm, to the shock and surprise, the complainant has received an SMS from the 1^st Opposite Party that an amount of Rs.500/-has been credited to the complainant’s account in Flipkart as a token of appreciation. In order to ascertain the exact reason for unilaterally depositing the amount in the complainant’s Flipkart Account, the complainant called upon the Flipkart Customer Care for about 6 times but all the customer support executives gave a vague and evasive reply that there was duplicate orders from his account and others gave a reason that there was a technical glitch in the website and a price error for those products and hence they have cancelled the Orders placed by the complainant causing undue hardship and great loss. Even though, 1^st Opposite Party had accepted and approved the orders/offer placed by the complainant, the 1^st Opposite Party has unilaterally cancelled the Orders without assigning a proper reason and without the knowledge and consent of the complainant.   The details of the Orders that have been unilaterally cancelled by the 1^st Opposite Party as under.

10. In order to establish the same, the complainant in his affidavit reiterated the same and also produced the orders placed by the complainant.   As looking into these orders, it clearly reveals that on 06.10.2014 the complainant booked Micromax 40T2820FHD 40 inches LED TV for a sum of Rs.18,040/-, OD300942647867025500 Moto E Cellphone for Rs.5499/-, OD200944819381628100 Moto Cellphone E for Rs.1500/-, OD100944825139151500 for Rs.1500/-, OD000944827049420100 Moto Cellphone E for Rs.1500/- , OD000944850563223700 Moto Cellphone E for Rs.1500/-, OD300944852286167100 Moto Cellphone E for Rs.1500/-, OD300944855517962800 Moto Cellphone E 1500/-,  OD000944859256726300 Moto Cellphone E for Rs.1500/-, OD000946814011037400 Godrej GDE 23 BXTM 221L Single Door Refrigerator For Rs.1500/- .  Further it reveals that the said amount has to be paid through cash on delivery and with respect to the item No.2 Moto E Cellphone Colour Black date of order 06.10.2014 at 10:22 a.m and ordered will be delivered by 10.10.2014 for a sum of Rs.5,499/- cash on delivery.  

11. The orders mentioned in Column No.2, Serial No.1 to 7 with respect to booking of Moto E-Colour Black Cellphone the date of order 06.10.2014 and the amount is for Rs.1,500/- cash on delivery.  The date of delivery 15.10.2016 and with respect to the orders placed, the orders ID.No.0D200944819381628100, the date of delivery is 14.10.2014 and in respect of this item refund to Flipkart wallet, we are refunding this amount as a token of appreciation from our end, refund successful Rs.500/- has been remitted through flipkart wallet and Opposite Party No.1 was cancelled all these booking orders placed by the Complainant.  Even though in the said document, it clearly mentioned that no cancellation or refund.  In spite of that Opposite Parties without informing the complainant and without consent of the Complainant unilaterally cancelled the booking orders.   The defence of the Opposite Party No.1 is that, the orders mentioned from Sl.No.1 to 7 were cancelled by the seller due to price error on the Website.   The Order in Sl.No.8 was cancelled by the seller due to some technical issues.  As per the Disclaimer in the TOU, orders may be cancelled by the seller in an event of price error due to technical issue or typographical error published by seller.  An amount of Rs.1,500/- in case of orders placed from Sl.No.1 to 7 and Rs.2,000/- in case of Sl.No.8 were credited to the complainant’s wallet balance for the inconvenience caused to the complainant.  The same is also taken by the Opposite Party No.2 in their version, but except interested version of the Opposite Party No.1 and Opposite Party No.2, they have not placed any supporting evidence to substantial their defence.  One Mr.Panduranga Acharya filed affidavit on behalf of the Opposite Party No.1, another one Mr.Anushree Saksena filed affidavit on behalf of Opposite Party No.2.  In their affidavit, it is reiterated the same, but they have not placed any material evidence.  On the other hand, as looking into the orders placed by the Complainant with respect to Serial No.1 to 7 and column No.2, it clearly goes to show that no cancellation or refund.  As the defence taken by the Opposite Parties Serial Nos.1 to 7 were cancelled by the seller due to price error on the website, in that event there is a mistake of price error on the website, the same can be intimated to the complainant before cancelling the orders placed by the Complainant and before cancel of the orders Opposite Parties ought to have clarify, whether the complainant is agreed for the correct rate of the goods instead of doing so without intimating the complainant, unilaterally and abruptly cancelled orders placed by the complainant, apart from that there is no document to show that the Opposite Parties have Authority to cancel the Orders, in the event of price error, if it is so it should be reflected the orders placed by the complainant.  On the other hand in the orders placed by the complainant it has mentioned that no cancellation or refund, thereby it is not proper to accept the defence taken by the Opposite Parties. 

12. Since, the Opposite Parties have cancel the orders placed by the complainant unilaterally without consent of the complainant and informing the complainant, on the other hand, the complainant made best effort to resolve the issue amicably by meeting the executives of the Opposite Parties.  In spite of that they are not resolving the issues amicably.   Even before filing this complaint, the complainant got issued Legal Notice dt.16.10.2014.  Even though notice was served on the Opposite Parties No.1 & 2, but they have not resolve the issues.  On the other hand, they issued reply on 05.11.2014.  Even though, Opposite Party No.1 in their reply issuing the complainant that they were looking into the issues and shortly send the detail response with positive resolution.  In spite of this both Opposite Party No.1 & 2 fails to resolve the issues, thereby it clearly goes to show that there is deficiency of service on the part of the Opposite Party Nos.1 & 2.  Hence, this point is held in the affirmative.  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is allowed holding that there is deficiency of service on the part of the Opposite Party No.1 & 2. The Opposite Party No.1 & 2 are directed to deliver 7 Moto Sell Phone by receiving he consideration of Rs.1,500/- each within 15 days from the date of this order and also to pay compensation of Rs.25,000/- towards damages caused to the Opposite Party No.1 & 2 for unilaterally cancelling the Order and to pay a sum of Rs.2,000/- towards cost of the litigation. 

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 27^th day of July 2016)

      MEMBER                                                                     PRESIDENT         

LIST OF WITNESSES AND DOCUMENTS

Witness examined on behalf of the Complainant:

1. Chethan Annadani Manjunatha, who being Complainant has filed his affidavit.

List of documents filed by the Complainant:

1. The order/offer placed by the complainant bearing No. OD300942111595286000
2. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing

No. OD300942647867025500

3. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing No.OD000946814011037400
4. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing

No.OD100944825139151500

5. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing

No. OD000944827049420100

6. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing

No.OD000944850563223700

7. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing

No.OD300944852286167100

8. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing

No. OD300944855517962800

9. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing

No. OD200944819381628100

10. The order/offer placed by the complainant and unilaterally cancelled by the 1^st Opposite Party bearing

            No. OD000944859256726300

11. The printout of the news article
12. The Legal Notice dt.16.10.2014

13. Reply Notice dt.05.11.2015
14. Postal Receipt
15. Reply Notice dt.05.11.2015
16. Postal Receipt.

Witness examined on behalf of the Opposite Party:

1. Panduranga Acharya, has filed his affidavit on behalf of the Opposite Party No.1.
2. Anushree Saksena, has filed his affidavit on behalf of the Opposite Party No.2.

List of documents filed by the Opposite Parties:

          No documents are produced.

MEMBER                                                      PRESIDENT