IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of February, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member,
Sri. K.M. Anto, Member
C C No. 149/2020 (filed on 01-10-2020)
Petitioner : Gijo G. Thomas,
Nechicattu House,
Chelacompu P.O.,
Karukachal,
Kottayam – 686540.
Vs.
Opposite parties : (1) Flipkart Internet Pvt. Ltd.,
Building Alyssa,
Begonia and Clove,
Embassy Tech,
Village Outer Ring Road,
Devarabeesanahalli Village,
Bangaluru -560103,
Karnataka.
Adv.Thomas Joseph)
(2) MarQ by Flipkart,
Vaishnavi Summit No.6/B
7th Main 80 Feet Road 3rd Block,
Kanamaangala Bangaluru – 560034.
O R D E R
Sri. Manulal V.S. President
Filed under Section 12 of the Consumer Protection Act, 1986.
Crux of the complaint is as follows:
The complainant purchased MarQ109cm 43 Ultra HD LED Smart Android TV for Rs.23,999/- from the first opposite party. The TV was delivered to the complainant on 16-9-2019 and installed by the persons of authorized serviced centre on 17-09-2019. According to the complainant the said TV became defective on 02-12-2019 and informed the same to the authorized service centre of the first opposite party. The technicians of the authorized service centre after inspecting the TV informed the complainant that the panel board of the TV became defective and request him to inform the same to the second opposite party. When the complainant intimated the defect of the TV to the Flipkart, they informed him that they will contact him within 72 hours. But there was no response. When the complainant repeatedly contacted the second opposite party on 28-2-20 they asked the complainant to send the screen shot of the TV to the phone number provided by them. Even though the complainant send the screen shot as demanded, the opposite parties did not care to rectify the defect. Thereafter on 16-6-2020 the complainant send another screen shot along with copy of invoice to the second opposite party as demanded by them. Even though the opposite party assured that they will take necessary action within 5 days, they did not take any initiative to rectify the defects. According to the complainant he had suffered much mental agony and hardship due to the deficiency in service and unfair trade practice on the part of the opposite parties.
Upon notice first opposite party appeared before the commission and filed version. The notice send to the second opposite party returned with an endorsement that the addressee left without instruction. So as per settled law it is considered as served to the addressee and hence the second opposite party set ex-parte.
The brief of the version of the first opposite party is as follows;
The first opposite party is a registered company having its registered office at Bangalore engaged in providing trading/selling facility over the internet through its website ww.flipkart.com and mobile application. The first opposite party is an online market place e-commerce entity as defined under Consumer Protection Act 2019.
The first opposite party have no role in the transaction between the complainant and the independent third party seller. The first opposite party falls within the definition of an intermediary under section 2(1)(w) of the Information Technology Act. The first opposite party neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale. All the products on Flipkart platform are sold by third party sellers on terms decided by the respective sellers only.
The first opposite party never made any representation or assurance about any products on the website. Any kind of assurance, whether in terms of specifications, warranty on the products , delivery ,price , after sale service etc. are offered and provided by the seller. The product purchased by the complainant has not been sold by the first opposite party. The first opposite party has no role in the transaction between the complainant and the seller.
It is admitted in the version that the complainant had purchased the product through the first opposite party. The seller and the manufacturer of the product provide warranty, not by the first opposite party. It is further submitted that the complainant paid the consideration to the seller. The TV became defective after a while and as such was covered under the manufacturer’s warranty. As in intermediary first opposite party has provided all due assistance and asked the complainant to contact the manufacturer or service centre as they are the authority to redress the grievance. On receipt of the complaint, first opposite party duly escalated it to the seller and every communication was provided on the basis of information received from the seller only.
The first opposite party has not violated any provision of law. There is no deficiency in service from the part of the first opposite party and no cause of action has arisen against the first opposite party. The complainant is not entitled to claim any reliefs from the first opposite party.
Evidence part of this case consists of proof affidavit of the complainant in lieu of chief examination and Ext. A1 to A2 from the side of the complainant.
One Rahul Sundaram who is the authorized signatory of the first opposite party filed proof affidavit in lieu of chief examination. No documentary evidence from the side of the first opposite party.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
- Whether the complainant had succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs?
Point Number 1 and 2
There is no dispute on the fact that the complainant had purchased a MarQ109cm 43 Ultra HD LED Smart Android TV for Rs 23,999/- through the web site of the first opposite party. The complainant had spent Rs.23,999/- for the same vide Ext. A1. The complainant deposed before the commission that the said TV became defective on 2-2-2019 and informed the same to the authorized service centre of the first opposite party. According to the complainant though he had contacted the opposite parties on several times and send the screen shot and tax invoice to the second opposite party they did not cared to rectify the defect of the TV. It is submitted in the version of the opposite party that the TV became defective after a while and as such was covered under the manufacturer’s warranty. On going through Ext.A2 series e-mail communications we can see that the second opposite party instead of rectifying the defect was in a habit of giving assurance that they will contact the complainant later.
The complaint was resisted by the first opposite party mainly on the ground that they neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective listing and products that are listed on the website.
The next objection of the first opposite party is that it is an online market place e-commerce entity as defined under consumer protection act (e-commerce rules 2020) and also an intermediary, as defined under Section 2(1) (w) of the IT Act. It is neither a manufacturer nor a seller of the product in question.
Under the E-commerce Rules 2020 E-commerce entity has been defined to mean 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
Section 3(g) of Consumer protection (E-Commerce Rule 2020) defines the 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.
The E-commerce Rules 2020 apply to all goods and services bought or sold over the digital or electronic network including digital products. However, they do not apply to any activity carried out in personal capacity not being part of any professional or commercial activity undertaken on a regular or systematic basis.
Section 5 of Consumer protection (E-Commerce Rule 2020) cast some liabilities upon market place e-commerce entities who seeks to avail exemption from liability under section (1) of Section 79 information technologies act.
Under E-commerce Rules 2020, every marketplace e-commerce entity must provide information such as the legal name of the seller, principal geographic address of its headquarters and all branches, names and details of its website and contact details, in a clear and accessible manner on its platform and such information should be displayed prominently to its users. Moreover market place e-commerce entity is bound to provide a ticket number for each complaint lodged through which the consumer can track the status of the complaint.
Every marketplace e-commerce entity is also required to provide information relating to return, 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.
Furthermore, every marketplace e-commerce entity also must provide information relating to available payment methods, the security of those payment methods, any fees or charges payable by users, the procedure to cancel regular payments under those methods, charge-back options, if any, and the contact information of the relevant payment service provider.
The E-commerce Rules 2020, certainly give more power to the consumers and further strengthen their rights.
No doubt, the role of first opposite party is that of intermediary in the present case, but it cannot be said that it has no role to play in the harassment and loss caused to the complainant by not rectifying the defect of the TV purchased from them. Online market place Company earns revenue each time a consumer clicks and visits 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 every marketplace e-commerce entity that it should verify the bona fides of the seller, who sells the articles and products.
In the present case, the complainant had purchased a MarQ109cm 43 Ultra HD LED Smart Android TV for Rs. 23,999/- through the web site of the first opposite party. The receipts came from Flipkart- first opposite party vide Ext.A1. So Flipkart is a co-seller. Moreover on perusal of Ext. A1 and A2 series we cannot see that first opposite party has provided the details of the seller, information relating to return, refund, exchange, warranty and guarantee, and grievance redressal mechanism, and any other similar information which may be required by consumers to make informed decisions, and ticket number for the complaint lodged through them by which the complainant can track the status of the complaint. Without discharging the liability which is casted upon the first opposite party under section 5 of Consumer protection (E-Commerce Rule 2020) the first opposite party can seek Protection which is subject to restrictions mentioned in Sub-Sections (2) and (3) of Section 79 of the Information and Technology Act, 2000.
Intermediaries are entities and provide service enabling delivery of online contents to the end user. "Intermediary" has been defined in Section 2(w) of the Information Technology Act, 2000 and thereafter the guidelines have been issued in the form of the Information Technology (Intermediary Guidelines) Rules, 2011. For providing protection to the intermediaries, general conditions have been framed as Safe Harbour Protection subject to restrictions mentioned in Sub-Sections (2) and (3) of Section 79 of the Information and Technology Act, 2000.
Section 79 of the Information and Technology Act, 2000, is a safe harbour provision subject to restrictions imposed in sub- sections (2) and (3) thereof. If an online intermediary has specific knowledge or has reasonable belief based on information supplied by the right holder about the contents and the intermediary fails to act despite such knowledge, online intermediary can be held liable for infringement.
Admittedly, users carry out activities on market place platform of the portal. Thus, they play an active role in facilitating the infringement conduct. Apparently, online marketplace operator portals appear to be responsible for infringements carried out by the users on their platform. The liability and exemption of the e-commerce portal acting as hosting service provider, in relation to posting of information provided by the recipients of its services, needs to be examined in the light of statutory provisions and the facts of present case arising from the consumer complaint.
Notice to the second opposite party which is send to the address shown in the A1 invoice which is issued by the first opposite party returned as addressee left without instruction. It is the bounden duty of Flipkart to publish the entire details of the seller who list their products and the seller of the products in their website to enable the customer to raise their grievances before the company who list their products and sold it.
The first opposite party has not placed on record the terms and conditions or any agreement, which must have been executed between it and second opposite party for allowing its marketplace/portal for selling the products and in the absence of the same, an adverse inference is to be drawn against first opposite party and the benefit of safe harbour protection subject to restrictions as provided under Sub-Sections (2) and (3) of Section 79 of the Information and Technology Act, 2000 cannot be given to first opposite party.
The liability of marketplace e-commerce Company arises from the concept of secondary/contributory infringement. In case in hand Flipkart facilitated infringement by the second opposite party-Seller and provided a space for sale of infringing product. Flipkart had actual or constructive knowledge of such infringement and has reason to believe that an infringement had occurred at its place as the product was packed in its box and delivered by it to the complainant. As such, it is also personally and jointly liable. Flipkart is not a neutral or passive, instead it optimizes, promotes and offers for sale and its duties are in the nature of pro-activeness.
Perusal of evidence on record clearly establishes that first opposite party is not a mere broker or intermediary as considered in the commercial world. We have no doubt, whatsoever, that it was acting as a representative or agent of second opposite party during the negotiation. All transactions routed through first opposite party and contract also concluded between the complainant and second opposite party through it. The delivery of product to the complainant was also through it. In view of this, first opposite party is personally answerable for the supply and delivery of goods and would be liable for the consequences arising out of the breach of contract.
In identical circumstance, State Consumer Disputes Redressal Commission, U.T., Chandigarh in First Appeal No.27 of 2017 (Amazon Sellers Service Private Limited v. Gopal Krishan and others) decided on 17.2.2017 while holding Amazon Sellers Service Private Limited liable has held as under:-
"8. Contention of Counsel for the appellant that as per terms and conditions of sale, no liability can be fastened upon the appellant is liable to be rejected. An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product."
It was so held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as "Emerging India Real Assets Pvt. Ltd. & Anr. Vs Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016" that it was bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability.”
In case in hand it is proved by Ext. A2 series that TV have some defects .
In the light of above discussion, we hold that the first opposite party being market place e-commerce entity and co-seller of second opposite party and is not merely an intermediary. Therefore, the opposite parties are held personally and jointly liable for the deficiency in service and harassment caused to the complainant.
In these circumstances, we allow the complaint and pass the following order.
We herby direct the opposite parties to rectify the defects of the TV or replace MarQ109cm 43 Ultra HD LED Smart Android TV with a defect free new one or in alternative to refund Rs.23,999/- to the complainant.
We herby direct the opposite parties pay Rs. 15,000/- as compensation to the complainant for deficiency in service committed by them.
Opposite parties are opposite party is joint and severally liable to pay the awarded amount to the complainant.
The order shall be complain within 30 days of receipt of this notice failing witch the awarded amounts will carry 9% interest from the date of order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 24th day of February, 2022.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1-Tax Invoice amounted to Rs.23,999/-
A2-Series – Email communication between complainant and op (7 Nos.)
Exhibits marked from the side of opposite party
Nil
By Order
Assistant Registrar
