By Sri. MOHAMED ISMAYIL.C.V, MEMBER
The averments of the complainant are in brief:-
1. The complainant was holding an account with the opposite party and on 04/08/2023, he had received an IVR call informing that his Flipkart account was going to be inactive. On the basis of direction given from the other side of the phone, the complainant pressed 1 on the Keypad on the phone. Subsequently he was asked to send OTP number received on the phone. So the complainant had attempted to send OTP number, for several times. Finally OTP number was sent. At that time the complainant had received a message stating that he had successfully paid Rs.4,854/- by using Flipkart Pay Later on Flipkart. Suddenly the complainant understood that a fraud was committed by misusing his Flipkart account. So the complainant contacted the Customer Care centre of the opposite party and requested to cancel the order. Moreover, the complainant asked for details of product purchased by misusing his Flipkart account. But the opposite party did not provide details of transaction. The customer care centre of the opposite party had informed that four days are required for cancellation. But the opposite party closed the complaint without taking any action. The complainant repeatedly made complaints before the opposite party, but the opposite party did not respond properly. It is alleged that the opposite party did not provide details of the product purchased through his account. On 20/09/2023, the complainant had submitted a complaint before Cyber Crime Department. But the opposite party did not provide details of Flipkart pay later wallet. It is averred that the opposite party had repeatedly contacted the complainant to make repayment of due amount resulted in fraud transaction. The act of the opposite party caused mental agony and hardship to the complainant. Hence the complainant prayed for a direction to the opposite party to pay Rs. 4,00,000/- as compensation.
2. The opposite party appeared on notice and submitted written version.
3. The opposite party denied allegations of deficiency in service and contended that the complaint is frivolous and it lack merit. It is contended that the Cyber Police had registered a complaint and investigation is going on, hence there is no scope to entertain the complaint before this Commission. The opposite party is an intermediary as per the provision of Information Technology Act, 2000. It is contended that the grievance of the complainant is pertained to fraud perpetuated by his wallet led to purchase of product from the website of the opposite party. According to the opposite party, the complainant himself had shared OTP on the phone call which led to fraud transaction. There was no role to the opposite party in the alleged fraud transaction. There is no document from the side of the complainant to show that he had contacted with the opposite party for cancellation of alleged fraud transactions. It is contended that the wallet of the complainant was used to purchase the Flipkart product and the same was delivered to the buyer. As per Section 79 of Information Technology Act, 2000 intermediary shall not be liable for any third party information, data, communication link made available or hosted by him. Moreover Rule 5 (1) of Consumer Protection E-commerce Rules also provide exemption to market place entity.
4. The complainant and the opposite party have submitted proof affidavits in support of their respective contentions. The documents produced by the complainant are marked as Ext.A1 to A9. Ext. A1 document is the copy of receipt showing particulars of complaint submitted before Police Authority. Ext. A2 document is the copy of Whatsapp message received by the complainant showing successful payment of Rs.4854/-by using Flipkart Pay Later on Flipkart. Ext.A3 document is the copy of bill issued by the opposite party showing demand of due amount by the opposite party. Ext.A4 document is the copy of message received from the opposite party showing cancellation of subsequent order made by the complainant himself. Ext. A5 document is the copy of complaint reported to Cyber Crime Department. Ext. A6 document is the copy of Foreclosure letter issued from IDFC First Bank to the complainant. Ext. A7 document is the copy of Account statement issued by IDFC First bank. Ext.A8 document is the original complaint dated 29/04/2024 submitted before IDFC first Bank along with reply. Ext. A9 document is the DVD drive containing voice call transactions between the complainant and the customer care centre of the opposite party. The documents produced by the opposite party are marked as Ext B1 and B2 documents. Ext. B1 document is copy of resolution passed by the Board of Directors of the opposite party. Ext. B2 document is copy of relevant portion of terms and conditions for using online platform of the opposite party.
5. Heard the complainant and the opposite party in detail. Perused documents and affidavits thoroughly. The Commission considered the following points to adjudicate the matter:-
- Whether the opposite party has committed deficiency in service towards the complainant?
- Relief and cost?
6. Point No(i):-
The grievance of the complainant is that on 04/08/2023 he had received an IVR Call warning him of imminent threat of closure of his Flipkart account and thereafter he had pressed one on the phone as per the direction, later he had also given OTP number to the other end, as result Rs. 4,854/- was debited from his Wallet of Flipkart Pay Later on Flipkart. Subsequently it was understood that a fraud was committed on him by using his wallet by unknown person. It is argued that even though the complainant had requested for cancellation of order, but no action was taken by the opposite parties. In addition, the opposite party also failed to provide transaction details to the complainant. The complainant produced Ext. A2 document to show debit of Rs. 4,854/- from his wallet. It is further argued that as per Ext. A3 document the opposite party is demanding repayment of amount debited from wallet. Moreover the opposite party also denied service by cancelling order made as per Ext.A4 document. It is also argued that the complainant had submitted complaint before Cyber Crime Department as per Ext.A5 document. The complainant that the opposite party is obliged to provide details of transaction and also cancel the transaction made on 04/08/2023. But the opposite party denied the request of the complainant and the same are which amount to deficiency in service on the part of the opposite party.
7. On the other hand, the opposite party argued that the transaction is purely related to commission of fraud by a third party and investigation is going on with respect to the said alleged transaction. According to the opposite party, it is admitted by the complainant that he had voluntarily given OTP number to an unknown third party. Thereafter alleged fraud was happened. Hence, argument of the opposite party is that they are not responsible for loss of money. It is further argued that the complainant did not take any proper steps to cancel the illegal transaction. In addition, the opposite party also claimed protection under Section 79 of Information Technology Act, 2000 and also as per Rule 5 (1) of the Consumer Protection (E-Commerce) Rules. Hence there is no deficiency in service on their part.
8. In the analysis of evidence adduced by the parties, it is evident that a fraud was
committed by using wallet of the complainant which resulted loss of Rs. 4,854/-. It has come out in evidence that the amount was illegally collected only after revealing OTP by the complainant on the basis of direction received from IVR call. It is admitted by the complainant that, he had pressed 1 on keypad and thereafter received an OTP number and the same sent to other end of the phone after many attempts. The amount was deducted only after revealing OTP. So the Commission find that there is no involvement by the opposite party in the alleged act of fraud committed by unknown third party. Hence there is no deficiency in service on part of the opposite party in connection with alleged commission of fraud.
9. But, at the same time the Commission find that the opposite party cannot keep aloof as a spectator by claiming protection under Section 79 of Information Technology Act, 2000 as well as Rule 5(1) of Consumer Protection (E-commerce) Rules 2020 from rendering proper service to the complainant. The Commission consider the fact that the complainant has every right to know details of transactions. It is true that the opposite parties has got protection as per law related to E-commerce entity. The Commission examined Rule 5(3) (a) which details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage: Provided that a market place e-commerce entity shall, on request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution. In addition, the Commission also gone through sub clause (c) of Rule 5(3) which explicitly tell that “Information relating to returns, refund, exchange, warranty and guarantee, delivery and shipment, modes of payment and grievance redressal mechanism, and any other similar information which may be required by consumers to make informed decisions”. But, here, the Commission find that the opposite party has even failed to deliver the proper information with regard to alleged transactions even though the complainant made request for the same. The specific case of the complainant is that the opposite party did not provide any details with regard to the transactions made on 04/08/2023 by misusing wallet of the complainant. Hence, the Commission find that the act of non- serving of details of transaction is amounted to deficiency in service on the part of the opposite party.
10. Point No.(ii):-
It is find that, the act of opposite party has caused mental agony and inconvenience to the complainant. The prayer of the complainant seeking compensation for huge amount cannot be accepted. So the opposite party is liable to pay compensation to the complainant in a reasonable manner. Hence, the opposite party is liable to pay Rs. 10,000/- as compensation for the sufferings of mental agony and inconvenience caused due to the deficient service. Moreover the complainant was compelled to adapt legal proceedings due to the deficiency in service committed by the opposite party. Hence the opposite party is liable to pay Rs. 5,000/- to the complainant as cost proceedings. On the basis of deliberations made above the complaint is allowed in the following manner:-
- The opposite party is directed to pay Rs. 10,000/-(Rupees Ten thousand only) to the complainant as compensation for the sufferings of mental agony and inconvenience caused due to deficient service.
- The opposite party is directed to pay Rs.5000/-(Rupees Five thousand only) to the complainant as cost of proceedings.
The opposite party shall comply this order within 30 days from the date of receipt of copy of this order otherwise entire amount shall carry interest at the rate of 9% per annum from the date of this order till the date of realisation.
Dated this 30th day of October, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A9
Ext. A1 : Document is the copy of receipt showing particulars of complaint submitted
before Police Authority.
Ext. A2: Document is the copy of Whatsapp message received by the complainant
showing successful payment of Rs.4854/-by using Flipkart pay later on
Flipkart.
Ext. A3: Document is the copy of bill issued by the opposite party showing demand of
due amount by the opposite party.
Ext. A4: Document is the copy of message received from the opposite party showing
cancellation of later order made by the complainant himself.
Ext. A5: Document is the copy of complaint reported to Cyber Crime Department.
Ext. A6: Document is the copy of Foreclosure letter issued from IDFC first Bank to
the complainant.
Ext. A7: Document is the copy of account statement issued by IDFC First bank.
Ext. A8: Document is the original complaint dated 29/04/2024 submitted before
IDFC First Bank along with reply.
Ext. A9: Document is the DVD drive containing voice call transactions between the
complainant and the customer care centre of the opposite party.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext.B1 and B2.
Ext. B1: Document is copy of resolution passed by the Board of Directors of the
opposite party.
Ext. B2: Document is copy of relevant portion of terms and conditions for using
online platform of the opposite party.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
