DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

 

Complaint Case No : CC/127/2021

Date of Institution : 07.06.2021

Date of Decision : 24.11.2023

Dr. Rohit Bansal aged about 45 years son of Dr. Roop Chand Bansal resident of near Punjab State Electricity Board, Dhanaula, Tehsil and District Barnala, Pin-148105. …Complainant

Versus

1. Flipkart Internet Private Limited, Embassy Tech Village, 8th Floor Block B, Devarabeesanahalli village, Varthur Hobli, Bengaluru East Taluk, Bengaluru District, Karnataka-560103, India through its Responsible Person/Authorized Signatory. 

2. Tech-Connect Retail Private Limited, 703-704, 7th Floor, Magnum Tower 1, Archview drive, Sector-58, Golf Course extension Road, Gurugram, Haryana-122011 through its Responsible Person/Authorized Signatory.

…Opposite Parties.

Complaint under Section 35 of Consumer Protection Act, 2019

Present: Sh. Chander Bansal Adv counsel for complainant.

Sh. Anuj Mohan Adv counsel for opposite party No. 1.

Opposite party No. 2 exparte.

Quorum.-

1. Sh. Jot Naranjan Singh Gill : President

2. Smt. Urmila Kumari : Member

3. Sh. Navdeep Kumar Garg : Member

(ORDER BY URMILA KUMARI MEMBER):

    The complainant Dr. Rohit Bansal filed the present complaint under Section 35 of the Consumer Protection Act 2019 against Flipkart Internet Private Limited and another. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that the opposite party No. 1 is Indian e-commerce company which provides platform for online sale of various products electronic market place and the opposite party No. 2 is seller who sells its products through the electronic market place of the opposite party No. 1. The complainant was a regular customer of opposite party No. 1 and had purchased many goods on routine basis on different occasion especially on Diwali festival through the opposite party No. 1 in lacs of rupee. 

3. It is further alleged that recently the complainant had ordered a Ray-Ban Sunglasses on 6.11.2020 vide order ID No. OD220151919986253000 invoice dated 6.11.2020 against Rs. 6,109/- through the electronic market of opposite party No. 1 from the opposite party No. 2 but the opposite party No. 2 had delivered a different model to the complainant due to which the complainant requested the opposite parties to replace the wrong model delivered to him. After receiving request to change the wrong model from the complainant the opposite party No. 1 blocked the account of the complainant without any of his fault. The complainant requested to the opposite party No. 1 that he is old customer of company and purchased various goods and fault at the end of opposite party No. 2 who delivered wrong item but to no effect. 

4. It is further alleged that the complainant was having Rs. 5000-6000 in his account with the opposite party No. 1 which the opposite party No. 1 had blocked and illegally retained the money of the complainant. The act of the opposite party No. 1 is unfair trade practice and deficiency in service. The complainant many times requested the opposite parties by sending emails and also sent a registered notice dated 15.4.2021 to the opposite party No. 1 but the opposite parties did not give any satisfactory reply which is deficiency in service and unfair trade practice on their part. Hence the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to change the wrong model of Ray-Ban Sunglasses with the model ordered by the complainant. 

2) To unblock the account of the complainant so that the complainant can access the amount lying in the account. 

3) To pay Rs. 50,000/- as compensation for humiliation and harassment. 

4) To pay Rs. 10,000/- as litigation expenses.  

5) Any other fit relief may also be given. 

5. The opposite party No. 1 filed written version taking preliminary objections that the complainant has repressed true and material facts from this Commission and trying to mislead this Commission. The opposite party is not a seller of the product and seller of the product is Tech Connect Retail Private Limited so complaint is bad for non joinder of necessary parties. The whole grievance of the complainant pertains to receiving of wrong product rather than the ordered product. The opposite party never came in possession of the delivered product or the ordered product at any point of time. When the complainant raised his grievance with the opposite party the same was duly escalated to the seller but the seller rejected the return request of the complainant stating that he has sold the right product on intact condition to the complainant as also confirmed by the courier service provider. The complainant has not alleged any tampering with the package delivered to the complainant. After receiving alleged grievance of the complainant the opposite party conducted its own independent investigation and found that the complainant is habitual abuser of the seller's return policy and so his account was blacklisted for any further transaction which was duly intimated to the complainant. The dispute is only between the complainant and the independent third party seller. The opposite party tried to solve the grievance of the complainant in its capacity of any intermediary and in no way is responsible to provide any replacement to the complainant in any case, so there is no cause of action against the opposite party. The opposite party is providing trading/selling facility over the internet through its website and mobile application called Flipkart platform which acts an an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. These sellers are separate entity being controlled and managed by different persons and any act of seller the marketplace e-commerce platform or its operating entity cannot be held liable. Further, the opposite party is by the provisions of Section 79 of the Information Technology Act 2000 vide which an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him. The opposite party does not directly or indirectly sells any products on Flipkart Platform, rather the same are sold by third party sellers who avail of the online marketplace services provided by the opposite party on terms decided by the respective sellers only. Any kind of assurance, whether in terms of specifications, warranty on the products, delivery, price, discounts, promotional offers, after sale services, return and refund or otherwise are offered and provided by the seller of the products sold on Flipkart Platform. The opposite party neither offers nor provides any assurance and/or offers pick up or refund facility to the end buyers of the product. The Department of Industrial policy and promotion, ministry of Commerce and Industry, Government of India vide its Press Note No. 3 in Clause 2.3 clarified that in a marketplace mode of e-commerce any warranty/guarantee of goods and services sold by the responsibility of the seller. It further clarify that seller is responsible for delivery of goods to the customers, customer satisfaction and post sales. The services of the opposite party similar to a shopping mall where various shops are rents out to different sellers who independently carry out sale proceedings with the customers and in case any deficiency in service related to the goods sold by such shop owners in the shopping mall it is the shop owner who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. Further, the users of the Flipkart Platform are bound by the terms of use enumerated on the Flipkart Platform which clearly state that the contract of sale is a contract between the buyer and the seller only and the opposite party is not a party to it. It is clearly mentioned that All contractual/commercial terms are offered by and agreed to between the buyer and the seller alone. The contractual/commercial terms include without limitation price, shipping cost, payment method, payment terms, date, period and mode of delivery, warranties related to products and services and after sale services related to products and services. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such contractual/ commercial terms between the buyer and the seller. Further it is mentioned on the website that Flipkart is not responsible for any non performance or breach of any contract entered into between buyers and sellers. Flipkart shall not and is not required to mediate or resolve any dispute or disagreement between buyers and sellers. 

6. On merits, it is submitted that complainant is not a consumer of the opposite party as opposite party neither a trader nor a service provider and there does not exists any privity of contract between the complainant and the opposite party. The contentions mentioned in the preliminary objections may also be read as part of this para. After receiving the grievance of the complainant the answering opposite party conducted its own independent investigation in the present matter and complainant was found to be the habitual abuser of the seller's return policy and thus his account was blacklisted for any further transaction and the same was duly intimated to the complainant. The opposite party tried to solve the grievance of the complainant in capacity of an intermediary and in no way is responsible to provide any replacement to the complainant in any case. It is further submitted that the answering opposite party has not retained any amount of the complainant illegally. The answering opposite party has not committed any criminal breach of trust, cheating, unfair trade practice or deficiency in service against the complainant. When the complainant raised his grievance with the opposite party the same was duly escalated to the seller but the seller rejected the return request of the complainant stating that he sold the right product in intact condition to the complainant as also confirmed by the courier service provider. The complainant has not alleged any tampering with the package delivered to the complainant. The opposite party is not liable for any replacement of the product. The opposite party has not received any legal notice from the complainant. The dispute if any is between the complainant and the independent third party seller. Lastly, the opposite party No. 1 prayed for the dismissal of the present complaint with costs. 

7. The opposite party No. 2 preferred to remain exparte. 

8. In support of his case the complainant tendered into evidence his own affidavit Ex.C-1, copy of bill Ex.C-2, copy of email conversation Ex.C-3, legal notice Ex.C-4, postal receipt Ex.C-5, acknowledgment Ex.C-6, sunglasses in question Ex.C-7, copy of screenshot showing Flipkart account status as blocked Ex.C-8 and closed the evidence.

9. To rebut the case of the complainant, the opposite party No. 1 tendered in evidence affidavit of Sheetal Tiwari Ex.OP-1/1, copy of press note issued by DIPP Ex.OP-1/2, copy of terms of use for using online portal Ex.OP-1/3 and closed the evidence. 

10. We have heard the learned counsel for the parties and have gone through the record on the file. Written arguments also filed by both the parties. 

11. Learned counsel for the complainant argued that the complainant had order original Ray-Ban Sunglasses model No. FSN: SGLF6NDBABXQY6VY HSN/S AC 90041000 on 6.11.2020 vide order ID No. OD220151919986253000 dated 6.11.2020 against Rs. 6,109/- through the electronic market of opposite party No. 1 from the opposite party No. 2 but opposite party No. 2 had delivered different model vide invoice No. FAAAE82101669521 to the complainant and now the complainant came to know that the said Ray-Ban Sunglasses are not original one and are copy/duplicate and due to that reason the complainant requested to the opposite parties to replace the wrong model delivered by the opposite party No. 2 and to deliver the right model to the complainant as per order. After receiving the request to change the wrong model from the complainant, the opposite party No. 1 had blocked the account of the complainant without any fault of the complainant. The complainant was having Rs. 5000-6000 in his account having with the opposite party No. 1, which the opposite party No. 1 had blocked and hence the opposite party No. 1 had illegally retained the money of the complainant. The complainant many times requested the opposite party by sending it email and had also sent a registered notice dated 15.4.2021 but the opposite parties did not give any satisfactory reply. 

12. Learned counsel for the opposite party No. 1 argued that the whole grievance of the complainant pertains to receiving of an alleged wrong product rather than the ordered product. The product was purchased from the third party seller (Tech Connect Retail Pvt. Ltd.) and the same is clear from the copy of Tax Invoice attached by the complainant himself in the present complaint. The independent third party seller had sold the product to the complainant through the third party logistic service provider. The opposite party never came in possession of either the delivered product or the ordered product at any point of time. Thus, the opposite party is not in a position to ascertain the authenticity of the grievance raised by the complainant. Further, it is submitted that when the complainant raised his grievance with the opposite party, the same was duly escalated to the seller. However, the seller rejected the return request of the complainant stating that he has sold the right product in intact condition to the complainant. After receiving the alleged grievance of the complainant the opposite party conducted its own independent investigation in the instant matter and the complainant was found to be the habitual abuser of the seller's return policy and thus, his account was blacklisted for any further transaction and the same was duly intimated to the complainant. The opposite party is not liable to provide any relief to the complainant as the dispute if any is only between the complainant and the independent third party seller. The opposite party tried to solve the grievance of the complainant in its capacity of an intermediary and in no way is responsible to provide any replacement to the complainant in any case. 

13. We have gone through all the documents on the file very carefully. The opposite party No. 1 in the affidavit of Ms. Sheetal Tiwari Ex.OP-1/1 admitted in the written version that on investigation in the present matter it was found that the complainant is in violation of the policy of the platform as the system has detected an unusual high number of returns in the complainant's purchase history so in order to protect the interest of the platform the opposite party blocked the account of the complainant and same was intimated to the complainant. But the opposite party No. 1 has not filed any document to prove that the complainant returned high number of products to the opposite party No. 1 after purchase. The opposite party No. 1 could not justify its stand of blocking the account of the complainant.

14. Secondly, the submission of the opposite party No. 1 that it only acts as an intermediary through its web interface www.flipkart.com and provides a medium to various sellers of all over India to offer for sale and sell their products to the users of Flipkart is dismissed. If this is declared business of the Flipkart it cannot be permitted to claim that it is providing purely gratuitous service to its customers. It is not the case that it is a charitable organization involved in e-commerce with no business returns for itself.

15. From the above discussion it is clear that there is deficiency in service and unfair trade practice on the part of the opposite party No. 1. So the present complaint is partly allowed against the opposite party No. 1 and opposite party No. 1 is directed to refund the amount of Rs. 6,109/- to the complainant after taking back the sunglasses from him and also unblock the account of the complainant so that the complainant can access the amount lying in the account. The opposite party No. 1 is further directed to pay Rs. 3,300/- to the complainant as consolidated amount of compensation for mental tension, harassment and litigation expenses. The Reader of this Commission is directed to return back the sunglasses to the complainant which were tendered as evidence in the court, after taking proper receipt. Compliance of the order be made within the period of 45 days from the date of the receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN COMMISSION:

        24th Day of November 2023

 

 

            (Jot Naranjan Singh Gill)

            President

              

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member