Versus
M/s. Flipkart Internet Private Ltd., Ozone Manay Tech Park, 56/18 & 55/09, 7th Floor, Garvebhavipalya, Hosur Road, Bangalore, Karnataka, India-560068. …..Opposite party
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
SH. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Bhavuk Bhalla in person.
For OP : Sh. Vinod Kumar, Advocate.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Briefly stated, the facts of the case are that the complainant is a Plus Member#8603407058 of OP and on 22.09.2022, he ordered an iPhone13 128 GB (Blue) for Rs.48,119/- on Big Billion Days Sales 2022 of the OP started on 23.09.2022. The order shown out for delivery for 26.09.2022 at the address given by the complainant as per SMS received on his phone. The complainant stated that he received another SMS that order could not be delivered on 26.09.2022 and delivery time lines were extended many times to 02.10.2022, 07.10.2022 and finally the order was cancelled by the OP. The customer Service Team of the OP advised the complainant to place a fresh order and as such, he placed a new order for iPhon13 128GB (Green) for Rs.55,519/- at the higher price of Rs.7400/- more. In the end, the complainant prayed for grant of compensation of Rs.7400/- towards the higher paid amount for purchase of iPhone13 along with compensation of Rs.15,000/- and litigation expenses of Rs.10,000/-.
2. Upon notice, the OP appeared and filed written statement by taking preliminary objections that the complaint is not maintainable; suppression of material facts by the complainant; lack of cause of action; mis-joinder of party etc. The OP stated that he is an electronic platform which acts as an intermediary to facilitate sale transactions between the sellers and the customers. In this manner, the OP has acted only as an intermediary as per Section 2(1) (w) of the Information Technology Act, 2000 and as per Section 79 of the Information Technology Act, 2000, the function of the intermediary is limited to providing access to a communication system. All the products on Flipkart platform are sold by the third party seller and the OP does not offer or provide any warranty to the end buyers of the product through its platform. The OP further stated that it does not directly or indirectly sell any products on Flipkart Platform rather all the products on Flipkart Platform are sold by third party sellers, who avail the online market place services provided by the OP on terms decided by the respective sellers only. The OP further stated that it neither offers any after sale service, offers/discounts, nor provides any assurance and warranty to the end buyers of the product. Moreover, the product purchased by the complainant had not been sold by the OP and it has no role in providing replacement/refund/delivery of the product sold by an independent seller through OP platform and as such, it is not a necessary party in the present complaint.
The OP further stated that the user(s) of the Flipkart Platform are bound by the Terms of Use enumerated on the Flipkart Platform i.e. the contract of sale is a bipartite contract between the buyer and the seller only and it is not a party to the same. The complainant purchased the product from one of the sellers listed on the Flipkart Platform as evidence from the seller tax invoice. The OP is not involved in the entire transaction executed between the seller and the complainant and as such, there is no privity of contract between the complainant and the OP. The OP further stated that the grievance of the complainant should have been only against the seller of the product or the third party courier service provider (which has not been impleaded as party) as product was sold by third party seller and delivery was to be done by third party courier service provider. Further the product delivery and replacement/refund is only provided by the seller and the product was sold by an independent third party seller and not by the OP. Even the liability to deliver the product at the address provided by the complainant was with Seller and further for defects in the product or service issue was with the manufacturers, which has also not been made a party.
The OP further stated that it being an intermediary has assisted the complainant on each and every occasion whenever the complainant approached it. As per the information received by the seller, the complainant was informed that the order was cancelled by logistics due to unforeseen reason on 08.10.2022 and the seller had processed the refund on 09.10.2022 i.e. on the very next day and the details of refund were shared to the complainant. There is no deficiency in service of unfair trade practice on the part of the OP.
On merits, the OP reiterated the crux of averments made in the preliminary objections. The OP has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.
3. In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered Ex. E1 is the copy of Email dated 03.11.2022, Ex. E2 and Ex. E3 are the copies of SMS, Ex. E4 and Ex. E5 are the copies of screen shots of order details, Ex. E6 is the copy of credit card statement dated 17.10.2022, Ex. E7 is the copy of credit card statement dated 13.10.2022, Ex. E8 is the copy of screen shot regarding sale on Flipkart, Ex. E9 is the copy of tax invoice dated 09.10.2022, Ex. E10 is the copy of news item and closed the evidence.
4. On the other hand, the counsel for the OP tendered affidavit Ex. OP1 of Ms. Sanchi Chhabra, Authorized Signatory of the OP along with documents Ex. A is the copy of guidelines issued by Government of India, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion (FC Section) and closed the evidence.
5. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavits and annexed documents and written reply along with affidavit and documents produced on record by both the parties.
6. Tempted and attracted by widely publicized Big Billion Sale 2022 (as depicted in Ex. E8), the complainant ordered an Apple iPhone13 (128GB, Blue). The order was accepted and confirmed by the OP, the details of which are in Ex. C4 and the same is reproduced as under:-
“Order confirmed: Thu, 22nd Sep 22”
Price Details
List price Rs.69,900
Selling price Rs.69,900
Extra Discount -Rs.19,910
Special Price Rs.49,900/-
Shipping fee + Secured Packaging Fee Rs.69
Shipping discount -Rs.40
Exchange Value for Old Devise -Rs.2000
Pick up charge Rs.100
Total Amount Rs.48,119
Notably, the OP charged shipping fees + secure package fees from the complainant as well. The OP processed the order and it was shown out for delivery vide Email Ex. E2 for 26.09.2022 at the given address of the complainant. However, the same could not be delivered on the appointed day and was promised to deliver the same on following date i.e. 27.09.2022 as mentioned in Email Ex. E2. Again on 27.09.2022, the OP felt sorry for delay in delivery. However, there was an inordinate delay in delivery of the product for which the representative of the OP apologized. However, finally on 08.10.2022, the order was unilaterally cancelled. The complainant who was in need of a new phone, so an order was placed on 09.10.2022 and which was delivered within 3 days of the date of order, but the complainant was made to shell out an extra Rs.7400/-.
7. Now the complainant has raised a grievance with regard to unfair trade practices adopted by the OP which has caused mental tension and harassment as well as monetary loss to the complainant.
8. On the other hand, the OP has emphasized that it is an electronic platform marketplace mode E-Commerce which acts as an intermediary to facilitate the sale transactions between the independent third party seller and independent end customers and it cannot be held liable being “Intermediary”.
9. Before adverting to the merits of the case, it will be imperative to refer the Consumer Protection (E-Commerce) Rules 2020 which were framed to protect the rights and interest of consumer and to prevent unfair trade practice in ‘e-commerce’ business. Section 2(16) of the Consumer Protection Act defines as under:-
16. “e-commerce” means buying or selling of goods or services including digital products over digital or electronic network.
Further rule 3(b) and 3(g) of the Consumer Protection (E-Commerce) Rules, 2020 (hereinafter called as ‘Rules 2020’) provides the definition of ‘e-commerce entity’ and ‘marketplace e-commerce entity’
“3(b) “e-commerce entity” means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce, but does not include a seller offering his goods or services for sale on a marketplace e-commerce entity.
3 (g) “marketplace e-commerce entity” means an e-commerce entity which provides an information technology platform on a digital or electronic network to facilitate transactions between buyers and sellers.”
10. Rule 4 of Rules 2020 enlists the duties of e-commerce entitles wherein it is mandated that every e-commerce entity will provide all information related to its business operations on its platform and shall also establish “Consumer Grievance Redressal Mechanism” which shall redress the consumer complaint within one month from the date of receipt of the complaint. Further 4(3) of Rules 2020 also provides that no e-commerce entities shall adopt any unfair trade practice whether in the course of business on its platform or otherwise. Rule 4(11) (a) of the Rules 2020 also prohibits the ecommerce entities from manipulating the price of goods or services offered on its platform in order to gain unreasonable profit by imposing unjustified price on the consumers in prevailing market conditions. It is further stipulated against the discrimination between the customers of some class or any arbitratory classification of customers affecting their rights under the Act.
Further rule 5 of the Rules, 2020 enlists liability of marketplace e-commerce entities that such e-commerce entities are bound to ensure the quantity and quality of nature of product and services, information with regard to return, refund, delivery and shipment etc. Rule 5(3) (a) of Rules 2020 provides that every market place e-commerce entities shall provide an information with regard to the details about seller offering goods and services including the name of their business, whether registered or not, their geographic address, customer care number etc. in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform. These rules have been provided so that the consumer can make informed the decision at the pre-purchase stage.
Further Rule 8 of the Rules, 2020 provides that any contravention of provisions of these rules would entail an action as per Consumer protection Act.
11. Perusal of order details Ex. E4 shows that the OP did not disclose in clear and unambiguous terms about the name, details and address of the seller which is an infringement of the Rules 2020 mentioned hereinbefore. Even the particulars of their logistic partners has not been mentioned and prominently displayed. This violation assumes greater significance when OP had charged for shipping and package of Rs.69/-as mentioned in the confirmation order Ex. E4. Now the OP is estopped from pleading and contending that the seller and the logistic partner has not been made party in the present complaint. Section 2(9) (ii) of the Consumer Protection Act, 2019enlists the various rights of the consumer and by withholding material information, the consumer right of the complainant ‘to be informed’ has been violated.
12. It can also be seen that once the order was out for delivery and the address of the complainant remains same, the OP or its representatives were not authorized to cancel the order unilaterally. No reasons for cancellation were provided to the complainant. After few days, the identical order was delivered at the same address with the enhanced price of Rs.7400/- to the complainant. It appears that the OP like e-commerce entities firstly publicize the sales of the product with ulterior motive to trap the potential customers and thereafter, extend concession of the sale to favour fewer persons only and thereby compelling or forcing the potential users to purchase same product at enhanced price as did by the complainant in the present complaint. This amounts to manipulation of the price by the OP which is violation of aforesaid rules 2020. The aforesaid acts and conduct of the OP also amounts to unfair trade practice. As such, in the given facts and circumstances of the case, it would be just and appropriate if the OP is directed to refund Rs.7400/- along with interest @8% per annum from the date of purchase i.e. 09.10.2022 till date of actual payment. The OP is also burdened with composite costs of Rs.10,000/-.
13. As a result of above discussion, the complaint is partly allowed with an order that the opposite party shall refund Rs.7400/- along with interest @8% per annum from the date of purchase i.e. 09.10.2022 till the date of actual payment. The opposite party shall further pay a composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of the above order be made within 30 days from the date of receipt of copy of order Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
14. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Sanjeev Batra)
Member President
Announced in Open Commission.
Dated:01.08.2024.
Gobind Ram.
