BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.197 of 2021
Date of Instt. 01.06.2021
Date of Decision:07.09.2022
Inderjit Singh Dr. B. R. Ambedkar, NIT Jalandhar.
Present Address:- Inderjit Singh 464-A, Surya Enclave, Jalandhar. Mobile No.7814378072
..........Complainant
Versus
1. Flipkart Internet Pvt. Ltd. Embassy Tech Village 8th Floor Block B Deverbee Samahalli Village Varthur Hobli Bengaluru East Taluk Bengaluru Distt. Karnataka, India-560103.
2. Ekart Near Easy Day Garha Road, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Complainant in Person.
Sh. A. S. Sohal, Adv. Counsel for OP No.1.
OP No.2 exparte.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that on 16.04.2021, the complainant booked an order of mobile handset Oppo F19 Pro + 5G, wherein he gave his old mobile phone Vivo VII amounting to Rs.8250/- and Rs.1780/- in cash on 18.04.2021 and received the box. At the time of opening the box, there was no mobile phone in the box, but only other accessories like Charger, Head Phone and Date Cable. Then on the same day, he registered a complaint on Flipkart site and contacted with the customer care through phone call and they gave assurance to solve the problem within 30.04.2021, but they failed to do so. The complainant had contacted with the customer care 2 or 4 times in a day, but all in vain. On the asking of the OP, the complainant gave his PAN Card and Aadhar Card to them, but they failed to return the same to the complainant. Due to the above said act and conduct of the OPs, the complainant suffered mental pain and harassment and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the damages/compensation to the complainant to the tune of Rs.1,00,000/- and to return the price of the old mobile and the cash amount, which was paid by the complainant.
2. Notice of the complaint was given to the OPs, but despite service OP No.2 failed to appear and ultimately OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the complainant has suppressed true and material facts from this Commission and trying to mislead this Commission. Hence the present complaint is not maintainable and liable to be dismissed against the OP No.1. It is further averred that the complainant might have mistakenly considered the OP No.1 as the seller of the product and this is complete negligence on the part of the complainant. The OP No.1 is not the seller of any product and the same is evident from the copy of Tax Invoice as attached by the complainant himself in the present complaint. The OP No.1 is merely an online intermediary providing a common platform to the buyer and independent third party seller. It is further averred that the whole grievance of the complainant pertains to receiving of an alleged empty box without the mobile phone. The fact need to be recorded here is that the product was purchased from the third party seller who had sold the product to the complainant through the third party Logistic Service Provider. The same is evident from the copy of the Tax Invoice attached by the complainant in his complaint. Thus, the OP No.1 never came in possession of the actually ordered product or the alleged empty box at any point of time. The complainant is cooking all crooked stories against the OP No.1 based on whims and fancies. It is further averred that the OP No.1 Flipkart Internet Private Limited is a company engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application. The OP No.1 is an online marketplace e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection Act Rules, 2020. On merits, the factum with regard to book a mobile handset by the complainant is admitted, but the other allegations as made in the complaint by the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. .
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OPs, very minutely.
6. It is proved and admitted that the complainant booked a mobile handset Oppo F19 Pro + 5G for Rs.25,990/-. The complainant paid Rs.8250/- in the shape of exchange of his old mobile phone and remaining amount paid in cash, which is evident from Ex.C-2 i.e. Tax Invoice. At the time of opening the box, there was no mobile phone in the box except other accessories like Charger, Head Phone and Data Cable. Despite number of complaints and requests made by the complainant, the grievance of the complainant was not resolved. Request has been made to accept the complaint.
7. The contention of the OP is that the OP is not liable to pay any amount as the OP is just an intermediary i.e. to provide online platform to facilitate the transaction in the whole transaction of sale and purchase of goods by the respective sellers and buyers of its website. The OP is not engaged in selling the goods manufactured on its own. In case of any defect in the goods sold by sellers, it is the seller who is liable for the consequences. The OP is not involved in entire transaction except for providing the online platform for transaction. There is no privity of contract between the complainant and the OP. The OP No.1 is an online marketplace e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection Act Rules, 2020. The OP falls within the definition of intermediary as defined under Information Technology Act, 2000 and OP is protected by the provisions of Section 79 of the IT Act. Request has been made to dismiss the complaint.
8. The complainant has proved on record the documents Ex.C-1 which shows about the messages regarding the delivery of the product and in this document, on 25.05.2021 it is mentioned that ‘You returned this order because an item was missing from the package.’ From this document, it is also proved that the complainant sent his Aadhar Card and PAN card to the OP No.1 and also in this document as per Refund Request, it is stated that ‘We will contact you within 72 hrs to clarify your request. Please note your request will be accepted only if it falls within the flipkart return policy. Rs.17,740/- will be refunded to your Bank account within 1 business day (Bank holidays not included) after pick up is completed. You will be given a Flipkart Gift Card worth Rs.8250/- for your old device.
9. On the other hand, the OP has produced on record the terms and conditions of flipkart, guidelines for foreign direct investment (FDI) on E-commerce and Section 79 of Information Technology Act.
10. It is not disputed that the OP provided a platform to the complainant to purchase the mobile handset from the concerned company. But the fact remains that the complainant has made the payment to the flipkart for onward giving to the seller or manufacturer as the OP was intermediary of the platform provided for both seller and buyer. Flipkart cannot escape or run away from its liability on the ground that there was no privity of contract between the buyer and the seller. As per record and the proved documents from Ex.C-1 and Ex.C-2, it is proved that the entire transaction and correspondence was done through the flipkart online portal i.e. www.flipkart.com. It is proved that the complainant purchased the product through flipkart website, therefore there exist the relationship of a consumer and the service provider between the complainant and the OPs. The OPs opted to provide the services of selling mobile handset by giving online platform through their website, therefore the complainant becomes consumer. There is no correspondence between the manufacturer, seller and the buyer, nor the name of the seller or manufacturer was ever brought to the knowledge of the complainant. The correspondence, proved on the file, is between the complainant and the Flipkart i.e. OP.
11. As per the record the complainant has booked the order through OP which was accepted by the OP and the payment was received by the OP. The product was also allegedly delivered by the OP. All the correspondence was carried on between the OP and the complainant. It is proved that the missing product i.e. only box with accessories, but without phone was delivered by the OP. Despite the request made number of times by the complainant, the issue has not been resolved by the OPs, thus, it amounts to deficiency in service and unfair trade practice on the part of the OPs and therefore, the complainant is entitled for the relief as claimed.
12. In the light of above detailed discussion, the complaint of the complainant is partly allowed. Though the complainant in his complaint has alleged the cash payment of Rs.1780/-, but as per invoice Ex.C-2, Rs.17,740/- were paid by the complainant in cash alongwith exchanged phone of Rs.8250/-. This fact has not been denied by the OP. Thus, the OP No.1 is directed to refund the price of the mobile i.e. Rs.17,740/- alongwith price of exchanged mobile i.e. Rs.8250/-, total Rs.25,990/- to the complainant. Further, the OP No.1 is directed to pay compensation of Rs.5000/- to the complainant for causing mental tension and harassment. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
07.09.2022 Member Member President
