DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 27^th day of August 2020

Present: Sri.V.P.Anantha Narayanan, Member(President I/c)  

              : Smt.Vidya.A, Member                                                                                     Date of Filing: 07/06/2018

CC /75/2018

Prasanth. N.R,

S/o. N.V. Rajan,

Nambillythodi House,

Paruthipully Post, Palakkad Dist.-Complainant

Kerala State - 678 573.

1. Flipkart Internet Private Limited,                                                             

Vaishnavi Summit, No. 6/B, 7^th Main,

80 Feet Road, 3^rd Block,

Koramangala, Bangalore - 560 034.

2. The General Manager,
3.  

Office No.1004, Regus Bridgade IRV Center,

Whitefield, Bangalore -560 102.

3. The General Manager,

Jeeves Consumer Service Private Limited,-Opposite parties

L-169, 6^th sector, 13^th Cross,

Next to Bhagawathi Hospital,

Bangalore - 560 102.

4. The General Manager,

Jeeves Consumer Service Center,

Near SBI ATM, Near Sub Registrar Office,

Olavakkode, Palakkad - 678 002

(Opp. parties 1,2,3 & 4 By Adv.Manoj Ambat)

O R D E R

By Smt.Vidya.A, Member

Brief facts of the complaint  

The complainant purchased a moto E4 plus mobile through the 1^st opposite party’s online platform for an amount of Rs.7,999/- on 17/04/2018.  The 2^nd opposite party, Konde Product & Service Private Limited is the seller of this product.  The 1^st opposite party, Flip cart provided 10 days replacement policy for the mobile purchased by the complainant.  On 20/04/2018, while using the phone, it became totally off and the complainant contacted the customer care of 1^st opposite party.  The customer care executive told the complainant that he had to make a replacement request and after their technical team visit, he will get the mobile replaced.  As per their advice the complainant made a replacement request and their technical team(opposite party 3 & 4) visited on 21/04/2018.  They did hard rebooting and the mobile became on and they assured the complainant that they will update his issue to 1^st opposite party, then he will get the mobile replaced.  Again the mobile showed the same complaint and he contacted the customer care on 22/04/2018 and they asked him to wait till 23/04/2018 as the technical team did not update their status.  Again he contacted the customer care on 23/04/2018 and they informed him that as the technical team did not update their status, the complainant’s replacement request was cancelled.  Then he requested to connect him to the senior executive and after awaiting for long time the complainant could talk to the senior executive.  The complainant explained the facts to him and the senior executive asked him to put the replacement request again and assured him that the replacement will be effected before the expiry of the replacement policy.  The complainant again made a request on 23/04/2018 and the technical team visited on 24/04/2018.  The technical team informed him that they have already informed the customer care senior about the problems of the mobile and he did not update the status and so they cannot do anything.  They assured him that they would take up the issue to Flip cart so that he will get a replacement.  The complainant again contacted the customer care and they asked him to wait till 25/04/2018 for the reason that the technical team did not update their status about his request over phone.  The complainant called the customer care executive on 25^th and 26^th.  On 26^th, they informed the complainant that the technical team has updated their status that the complainant’s mobile is perfect and it has no problem.  Then he again contacted the ‘senior executive‘ of customer care and told him about the continued problems in the mobile phone from the date of purchase and they promised to resolve his problem within 24 hours and informed him that he will get a call from their expert team and also as SMS to confirm the same.  But they did not call him.  Again the complainant called the customer care on 27/04/2018 and after a long wait talked to the Manager who assured him to solve the problem before 01/05/2018 and told him that he will get a replacement.  But nothing happened.  The complainant is working in Indian Army and he was on leave for one month which got over on 29/04/2018 and the complainant was forced to extend his leave as the opposite party asked him to wait till 01/05/2018.  The complainant had to attend a course in Java in his Army unit which was scheduled to be held on 10^th May, 2018 and due to his leave extension, his Unit Commander asked him to undergo the course from any college in his home town so that he can do the projects of his unit once he joins.  On account of that he lost the opportunity to attend a free course having course fee about Rs.45,000/- and had to join NIIT, Palakkad by paying an amount Rs.11,210/- from his pocket.  Because of the acts of the opposite parties, the complainant was subjected to financial loss and mental agony. The complainant was forced to extend his leave on account of his purchase of the mobile phone and suffered financial loss and mental agony.  Even after his repeated requests, the opposite parties did not do anything to solve the complainant’s issue.  On 10^th May 2018 the complainant received a call from Flip cart team asking about the details of his mobile phone and assuring him that it will be set right within 24hours and got affirmation regarding that. Thereafter he was contacting them continuously and on 17^th May, they asked him to approach Jeeves Consumer Service Pvt. Ltd. Which is the technical team of Flip cart for getting the mobile repaired.  When he approached them they informed him that they cannot do anything as their technical team had already reported that the complainant’s phone is completely in working condition and asked to approach Flip cart.

            The complainant purchased the mobile phone for gifting it to his girl friend, and because of the defective phone, he had to bow his head before her and suffered great mental agony.        

The acts of the opposite parties in selling this defective phone and not replacing it within time, the complainant had to suffer a lot.  He extended his leave and had a financial loss of about Rs.1,00,000/-, the course fee of Rs.45,000/- and the course of the fee amounting to Rs.11,210/- which he had to spent from his own pocket and lost his valuable time and effort.

            All these happened because of the deficiency in service on the part of the opposite parties.  Hence this complaint is filed for getting an order directing the opposite parties to give a new mobile phone and an amount Rs.2,00,000/- as compensation for the financial loss, mental agony and other inconveniences caused to him.

            Complaint admitted and notice issued to all opposite parties. The opposite parties appeared and filed their version.

The main contentions raised in 1^st opposite party ‘s version are

The 1^st opposite party is mere an intermediary having limited role of providing an online platform between the seller and buyer of the product through its website and it is neither a seller nor a manufacturer of the product.  The buyers purchase goods from various third party sellers registered on ‘Flip kart platform’ by their own free will and 1^st opposite party does not sell any product at its own either directly or through any 3^rd party seller nor provide any replacement of the product.  The 1^st opposite party has not charged any amount from the complainant as consideration for using its online platform and the amount paid by the complainant is the cost of the product and not for using 1^st opposite party’s platform.  The complainant is not a consumer of the 1^st opposite party as there is no privity of contract between the complainant and 1^st opposite party.  The complainant had placed a replacement request on 20/04/2018 and as per that the seller had arranged a technician visit at complainant’s address which was refused by the complainant. So the demand of the complainant for replacing the mobile was duly denied by the 2^nd opposite party.  Thereafter the complainant raised another replacement request on 23/04/2018 and as per that a technician visit was arranged by 2^nd opposite party and the alleged issue of the phone was resolved and the same was communicated to the complainant through e-mail on 03/05/2018.  As the complainant was again demanding replacement, he was asked to contact the authorized service centre(OP4) for redressal of his grievance.  Thus 1^st opposite party had provided all possible assistance to the complainant in order to solve his issues with regard to the mobile phone.  1^st opposite party denied the complainant’s occupational and personal details due to want of knowledge.  Moreover according to them complainant had not produced any material evidence to substantiate the averments in the complaint and so it has to be dismissed.  1^st opposite party is not a seller and cannot be held responsible for the replacement, return warranty or after sale service of the product and it is the responsibility of the independent seller, manufacturer or its authorized service centre.  Further as per the technical visit executed by opposite party 3 and 4, the mobile phone was working properly without any defect.  Any kind of return or replacement of product is offered by the seller only and the terms and conditions of such policy are also determined by the seller.  The 1^st opposite party being an intermediary does not play any role in deciding such policies and it is the sole discretion of the seller.  All the correspondences related to the product sent by 1^st opposite party is on behalf of the seller and because of the above mentioned reasons, the complainant’s replacement request of the product was rejected and it was communicated to the complainant.  So the complainant has to be dismissed against the 1^st opposite party with costs.

Version of 2^nd opposite party

The 2^nd opposite party is carrying on the business of sale of goods manufactured or produced by others.  The 2^nd opposite party is a registered seller on the website “flipkart.com and sells products of other manufacturers, manufactured under their own brand names, through the website.  It is not engaged in sale of any goods manufactured or produced by its own.  The products sold by 2^nd opposite party carriers manufacturer’s warranty and as a reseller 2^nd opposite party’s involvement in the transaction is limited only to selling the products of various manufacturers.

In this case the complainant had raised a replacement request of the product on 20/04/2018, but rejected to allow the technician visit by opposite party 3 and 4, as a result his replacement request was cancelled.  Thereafter on 23/04/2018, another request was placed by the complainant and as per that the technician visit was arranged to inspect the product on which the product was found to be perfect and the replacement request was duly rejected.  The 2^nd opposite party being a mere re-seller, its role ends as soon as the product is delivered at the address of the customer in a sealed and untampered manner.  The 2^nd opposite party cannot be made liable for the alleged defects in the product and no specific allegation is made against them.  The present complaint is filed with the malicious intention to extort money illegally from 2^nd opposite party.  Further all the offers, discounts, warranty and after sale service are provided by the manufacturer and authorized service centers appointed by the manufactures and here the complainant has failed to implead the manufacturer in the party array.  Manufacturer is a necessary party in the complaint and for that reason itself the complaint is liable to be dismissed.  The occupational and personal details of the complaint are denied due to want of knowledge and the complainant has failed to substantiate the averments made in the complaint by evidence and it has to be dismissed in that respect.

The 2^nd opposite party provides 10 days replacement as a good will gesture subject to the technician visit and their updates.  Here the complainant refused the technician visit at his 1^st request and insisted on replacement of the product.  On his second request, technicians visited and found the product fully functional and hence the replacement request was rejected by 2^nd opposite party.  Hence there is no deficiency in service on the part of 2^nd opposite party as they directed the complainant to approach the authorized service centre for availing after sale services from the authorized service centre as the product was found in working condition by the technician and 10 days replacement warranty had expired.  The complainant had failed to establish any cause of action against 2^nd opposite party and hence it is to be dismissed against 2^nd opposite party with costs.

Version of opposite party 3 and opposite party 4:

The 3^rd and 4^th opposite parties are different office address of the same entity and any reference to 3^rd opposite party includes 4^th opposite party as well.  The 3^rd opposite party, Jeeves Consumer Services Pvt. Ltd. is a company and engaged among others in providing after sale support to major brands or online portal or large retail store like installation, repair services during warranty and out of warranty for electronic appliances etc.  The 3^rd opposite party acts only as an independent third party service provider who provides after sale service.  It does not manufacture or sell any product on its own or provides any kind of medium to the public to facilitate transaction for sale and purchase of any product.  The complainant in this case does not have any privity of contract with 3^rd opposite party.  The complainant purchased the product from 2^nd opposite party and online platform was facilitated by 1^st opposite party and 3^rd opposite party had no role in the entire transaction.

Further any kind of assurance like warranty on the products, after sale services, replacement, refund etc. are offered and provided by the seller or manufacturer of the product.  Role of 3^rd opposite party is to provide after sale services for household products as per the agreement between 3^rd opposite party and manufacturer.  The 3^rd opposite party is not responsible for any kind of manufacturing defects in the product whether inherent or occurred after that.

It is admitted that the complainant purchased a Moto E4 plus mobile from 2^nd opposite party through online platform of 1^st opposite party on 17/04/2018.  The averments regarding the replacement policy and complainant’s further communications with 1^st opposite party is denied due to want of knowledge.  The averment that the technicians of 3^rd opposite party visited the complainant on 21/04/2018 and the alleged communication between the complainant and technicians of 3^rd opposite party is denied being false.  The complainant had raised a replacement request on 20/04/2018, but refused to allow the visit of technicians to inspect alleged defect in the product and insisted on replacement of the product and as a result, the replacement request was cancelled by the seller.  The complainant again raised a replacement request on 23/04/2018 and the technicians of opposite parties 3 and 4 visited the complainant and found that the product is fully functional without any defect and the matter was communicated to the complainant as well as the seller.  The complainant had never approached the opposite party 3 and 4 directly for redressal of his alleged grievances and opposite party 3 and 4 have duly attended the complainant’s issue as per the instructions of 2^nd opposite party and hence they cannot be held liable for any deficiency in service.  The 3^rd opposite party had submitted its report as to “no defect” to 2^nd opposite party and the decision to accept or reject any replacement lies upon 2^nd opposite party.

The complainant had failed to support his averments with substantial evidence and the complaint has to be dismissed against opposite parties 3 and 4.  Further any kind of return or replacement of the product is offered by the seller of the product on the conditions determined by the seller and 3^rd opposite party being an independent third party service provider has nothing to do with that.  They have duly conducted the inspection of the product and submitted the report.  The complainant had failed to establish any cause of action against 3^rd opposite party and hence it is to be dismissed against opposite parties 3 and 4 with costs.

Complainant filed chief affidavit and Ext.A1 to A14 were marked.  Exts.A13 and A14 marked subject to proof.  Opposite parties also filed affidavit and Ext.B1 and B2 marked from their side. No witness was examined from both sides.

Main issues arising for consideration:

1. Whether there is any deficiency of service on the part of the opposite parties?
2. If so, what is the relief as to cost/Compensation?

Issues 1&2

Heard both parties.  We have perused the affidavits and other documents on record produced by both parties.

It is clear from Ext.A2 ‘Tax Invoice’ that the complainant purchased a Moto E4 plus mobile from the 2^nd opposite party through the online platform of 1^st opposite party.  The main contention raised by the 1^st opposite party is that they act as an intermediary which provides an online platform to various independent sellers to sell their products; all the products are sold by third party sellers and the 1^st opposite party do not directly or indirectly sell any product.  The complainant is not a consumer of the 1^st opposite party as there is no privity of contract between the complainant and 1^st opposite party. 

It is admitted fact that 1^st opposite party provide an online platform for 3^rd party sellers to sell their product.  “Online Market Place Company” earns revenue each time a consumer purchases on its website.  Moreover, the same is being done as per the terms and conditions between the online portal company and the sellers for a “consideration”.  It is the duty of the online portal company which acts as an intermediary that it should verify the bonafides of the seller who sells the articles and products.  Intermediaries are entities and provide service enabling delivery of online contents to the “end user”.   So the 1^st opposite party is a co-seller and it was acting as a representative or agent of 2^nd opposite party.  All the transactions are routed through the 1^st opposite party and contract also concluded between the complainant and 2^nd opposite party through the 1^st opposite party.  Hence we are of the view that the complainant is a consumer of 1^st opposite party and the 1^st opposite party is answerable to the deficiency of service and harassment caused to the complainant if any. 

In this case a ten days replacement policy was offered by the 2^nd opposite party as confirmed in their version.  As per the complaint, the complainant’s newly purchased mobile phone became defective within three days of its purchase, so he contacted the customer care of 1^st opposite party and they advised him to make a replacement request.  As per the request of the complainant the 2^nd opposite party arranged a technician visit and the technical team of 1^st opposite party visited his place on 21/04/2018 and they did hard rebooting and the mobile became on and they assured him to update his issue for getting replacement.  But nothing was done by them and his request got cancelled.  So he made a 2^nd request on 23/04/2018 and as per that, the technical team arranged by 2^nd opposite party again visited his place on 24^th April and informed that they have already reported the issue of the mobile phone to their senior and they did not update their status. But according to the opposite parties, the reason for the cancellation of his replacement request was the refusal of the visit of technical team by the complainant.  Ext.A4(a), A4(c) are the customer care feedback e-mails from  Flip kart.  Ext.A4(a) dated 20^th April 2018 shows that the complainant had contacted the customer support team on the nearby date.  Further Ext.A13, messages sent by Jeeves Service Centre (Opposite party        3 & 4) to the complainant shows that they have rescheduled the Technical visit to 21/04/2018, 12.00 am and the Engineer details would be communicated to the complainant shortly.  In Ext.A4(c) nothing has been mentioned about the replacement request made on 21/04/2018 or cancellation of that request on account of the refusal on the part of the complainant to allow technical team visit.  In Ext.A12, the e-mail from Flip kart customer support dated 5^th May 2018 only they admit that the technician visit update was fake and they tried to contact the complainant to discuss about that.  But nothing about this has been mentioned by the opposite parties in their version as well as in their affidavit. So there is a deficiency in service on their part by making a fake update. Because of that the complainant’s first replacement request got cancelled and he had to make another replacement request on 23/04/2018.  

The e-mail sent on 23^rd April, 2018 which is marked as Ext.A4(d) shows that 1^st opposite party has escalated the complainant’s issues to the concerned team and assured to solve his problem by 26^th April.  Ext.A6 the e-mail dated 26^th April 2018 showing update from Flip kart customer support shows the request from 1^st opposite party for extension of time upto 27^th April to solve the issue. Ext.A7 dated 26^th April, the feedback on the tech-visit from Flip kart states that as per the technical visit arranged by them, the engineer tried to fix the issue with the device to the complainant’s satisfaction.  If that be the case, they could have stopped there by updating their status and informed the complainant that his mobile is perfectly functional and his replacement request cannot be accepted.  But on 1^st May 2018 again there was an update from Flip kart customer support which is marked as Ext.A8(d) apologizing for taking longer time and requesting the complainant for extension of time upto 3^rd May for solving his issue.  In Ext.A8(c), the e-mail dated 3^rd May only they update that the mobile issue had been resolved by the technician on 25^th April itself and if still he is facing the same problem, he can contact the service centre of 1^st opposite party ie. opposite party 3 and opposite party 4.

If the technical team of the 1^st opposite party had updated their status on 25^th April itself, they could have informed this to the complainant earlier itself and there was no need for the complainant to contact them again and again. 

Ext.A9(b), the e-mail sent by flip kart on 4^th May shows the reply from Flip kart asking the complainant to contact  their service centre (opposite party 3 and  4) for further service if any.  As per the complaint, the complainant contacted the service centre of 1^st opposite party who informed him that their technical team had already reported that the complainant’s phone is in working condition.  So they cannot do anything further in this matter.  But it can be seen that they had not updated their status in time.  So there is a deficiency of service on the part of the opposite parties for which they have to compensate the complainant.

As per the complaint, the complainant purchased the mobile phone for gifting it to his girl friend and because of this defective phone, he had to bow his head before her and suffered mental agony.  It is true that when a brand new mobile which is given as a gift to someone became defective within three days, definitely he would have suffered mental agony for which the opposite parties had to compensate him. 

As per his contention, the complainant is working in Indian Army and he purchased the mobile when he came to his home town for one month leave from 31/03/2018 to 29/04/2018 and he had produced the leave certificate to that effect.  The complainant had produced another leave certificate which is marked as Ext.A14 which shows that he had extended his leave from 30^th April 2018 to 29^th May 2018.  According to the complainant, as per the request of the opposite parties he had to wait for resolving the mobile issue and so he extended his leave but nothing happened and as per the Army unit policy the complainant was forced to take leave for another 30 days which caused financial loss to him.

According to him, the reason for his extension of leave was the deficiency in service on the part of the opposite parties to solve the problem with regard to the newly purchased mobile.  The e-mails sent by 1^st opposite party to the complainant clearly show that they had asked extension of time for solving his issue.  On 25^th April itself if the technical team had updated their status and informed the complainant about the cancellation of his request, this would not have happened.  Eventhough the complainant contacted the service centre of the   1^st opposite party, they did not provide him any service as their technical team had already reported that the complainant’s mobile phone is in working condition.  But they failed to update their status in time.  So there is a clear deficiency of service on the part of the opposite parties in solving his issue and acting upon his request on replacement of the phone as per their policy.  

The complainant contends that because of his extension of leave due to the acts of the opposite parties, he missed the chance to attend a free course in his army unit having a course fee of Rs.45,000/- and he had to attend the course in his home town by spending his own money and suffered financial loss.  But no evidence was adduced in support of this claim.  So that cannot be taken into account in assessing the compensation. The complainant spend his valuable time and effort in conducting the case.

During the course of argument the complainant was asked by the Forum about the custody and condition of the mobile phone in issue and he submitted that, the mobile phone is with his wife and it is working but has some problems with its speaker. So it can be seen that the phone is in working condition even after two years of its purchase.  So the first prayer in the complaint regarding replacing the mobile with a brand new mobile cannot be accepted and it is dismissed. 

As pointed out above, there is a deficiency of service on the part of the opposite parties in solving his issues on time and informing the complainant about his replacement request and related matters without delay.  Because of these the complainant had suffered mental agony and financial loss.

In the result the complaint is partly allowed.  We direct the opposite parties to pay jointly and severally a sum of Rs.5,000/-(Rupees Five Thousand only) to the complainant as compensation towards the mental agony and financial loss suffered by him.  

Order shall be complied within one month from the date of receipt of this order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.  

Pronounced in the open court on this the 27^th day of August 2020.    

                                                                                                                                                                      Sd/-

                 V.P.Anantha Narayanan

                   Member(President I/c) 

                                                                                                                          Sd/-            

                                                                                                                                      Vidya.A

                                  Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Original bill

Ext.A2 – Tax invoice received from Flip kart

Ext.A3 – Delivery detail email received from Flip kart 17^th April 2018

Ext.A4 series (a &c) – Customer care feedbacks

Ext.A4(b) – Invoice order E-mail.

Ext.A4(d) – E-mail message from Flip kart customer support stating their assurance to solve the issue.

Ext.A5 – Invoice order e-mail received from Flip kart on 22^nd April2 018

Ext.A6 – E-mail message from Flip kart customer support dated April 26^th requesting more time to

 resolve the issue.

Ext.A7   - Feedback email for technician visit on 26^th April 2018

Ext.A8 series (a, b & c)- Customer care feedbacks email

Ext.A8(d) – E-mail message from Flip kart customer support dated 1^st May 2018 requesting extension of

      time to resolve the issue.

Ext.A9 series (a &b)-  E-mail message from Flip kart

Ext.A10 - Customer care feedback email from flip kart

Ext.A11 - Invoice order email received from Flip kart on 15^th May 2018

Ext.A12 - Customer care feedback email from flip kart dated 5^th May

Ext.A13 - Call details collected from idea customer care

Ext.A14 - Leave Certificate (Subject to proof)

Exhibits marked on the side of Opposite parties

Ext.AB1                - Guidelines for Foreign Direct Investment (FDI) on E-commerce

Ext.B2   - Flip kart terms of use

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost :   NIL