DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Monday the 28th day of November 2022
C.C. 81/2017
Complainant
Priyesh. M,
S/o Valsan,
Webenlive, Room No. 1/4996 P,
Kamala Building,
Nadakkavu Cross Road,
Calicut – 673008.
(residing at ‘Sreevalsam’,
Kaniyan Kunnummal,
Kollam. P. O, Koyilandy,
Kozhikode – 673307).
(By Adv. Sri. K. Shahzad)
Opposite Parties
- Flipkart Internet Private,
Vaishnavi Summit, Ground Floor,
7th Main, 80 Feet Road,
3rd Block, Koramangala Industrial Layout,
Bangalore, Karnataka – 560034.
(By Adv. Sri. Jeril Babu. P)
- VSER VEONLINE,
Sree Balaji Business Park – 312,
Badu Road, Digberia Madhyamgram,
Kolkata, West Bangal – 700128.
- VSER VEONLINE,
2 Saklat Place, 1st Floor,
Kolkata, West Bengal – 700072.
- Ekart Logistic (Flipkart),
22/1108, Flipkart House,
Gandhi Road, 1st Floor,
Near Sriram Transport Finance,
Opposite Regal Bakery,
Kozhikode – 673007.
(By Adv. Sri. Jeril Babu. P)
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant, in brief, is as follows:
The first opposite party is an e-commerce business company which sells the products through online booking. The second opposite party is one of the trade partners of the first opposite party through which, the first opposite party conducted the sale of the product involved in this case. The third opposite party is the registered office of the second opposite party. The fourth opposite party is the logistic and courier partner of the first opposite party at Kozhikode.
3. On 13/01/2016 the complainant ordered a mobile phone of the make Lenovo S-660 which was available with the first opposite party for a sum of Rs. 6,695/-, through e-mail of his friend Sreelal. The first opposite party delivered a mobile phone to the complainant through the fourth opposite party on 18/01/2016. But when he opened the courier delivered to him, it was found that mobile phone of the make P-780 of the same manufacturer was delivered to him instead of the one ordered by him and in fact it was a used one and not in a working condition and did not have a headset.
4. The complainant immediately registered a complaint with the first opposite party. Later some persons claiming to be from the first opposite party contacted him over phone and assured that they would replace the phone and he was asked to send the bank account details to the first opposite party. Since the complainant did not have a bank account, he furnished the bank account number of his friend Arundas. But thereafter the first opposite party did not replace the phone or refund the price. On 27/01/2016 the complainant sent an e-mail to the customer care of the first opposite party. Then he received a reply on 30/01/2016 that they had disapproved the refund/replacement request of the complainant.
5. The opposite parties have cheated and committed unfair trade practice by collecting the full consideration amount from the complainant and by delivering a different phone and that too a substandard one. Apart from that, the complainant had to incur heavy mental and physical agony. Hence the complaint to direct the opposite parties to refund the purchase price of Rs. 6,695 with interest along with compensation of Rs. 15,000/-
6. The opposite parties resisted the complaint by filing written version.
7. The contention of the first opposite party is that as an intermediary, their involvement in the entire transaction is very limited and they do not sell any products of their own. They only provide online platform where different registered sellers sell their products and visitors/buyers purchase such products from the respective sellers on the online market place website. The contract of sale and purchase is between the seller and the buyer.
8. The complainant purchased the mobile handset Lenovo S-660 for Rs. 6,695/- from the third opposite party seller through the first opposite party. The first opposite party is neither the seller nor the manufacturer of the product. The seller is opposite parties two and three. The complainant has concealed the real facts. The first opposite party had arranged for refund of the price from the seller of the product. But the act of the complainant was found to be suspicious since two different persons were co-ordinating with the first opposite party and both were providing different reasons for raising fund request. Both of them were providing different bank account numbers and trying to obtain refund in their own bank account. Hence the request for refund was cancelled by the seller. There is no privity of contract between the complainant and the first opposite party. The complainant is not a consumer of the first opposite party. None of the reliefs sought for is allowable. It is, therefore, prayed to dismiss the complaint with costs.
9. The second and third opposite parties, in their version, has contended that the complainant never contacted them at any point of time during the period from the date of booking of order till filing of this complaint. They are absolutely in dark regarding the delivery of non-identical and used goods to the complainant. There is no specific allegation against them in the complaint. According to them, the delayed complaint is ill-motivated and liable to be dismissed.
10. According to the fourth opposite party, they act as a logistic partner only to facilitate logistic transactions between independent third party sellers and independent end customers. They do not sell any goods of their own. The complainant purchased the product from one of the sellers listed on the online market place website flipkart.com. They are not involved in the transaction. There is no privity of contract between the complainant and the fourth opposite party. The complainant is not a consumer of the fourth opposite party. The fourth opposite party has delivered the seal packed product to the complainant as it was received from the opposite parties two and three without any delay or any kind of tampering with the package. If the product was defective or damaged or not found to be as per the ordered specifications, the fourth opposite party cannot be held liable. The request for replacement / refund can be entertained by the seller only. With the above contentions, the fourth opposite party also prays for dismissal of the complaint.
11. The points that arise for determination in this complaint are;
(1). Whether there was any deficiency of service on the part of the opposite parties?
(2). Reliefs and costs.
12. Evidence consists of the oral evidence of PW1 and Exts A1 to A3 on the side of the complainant. MO1 and Ext C1 were also marked. The second and third opposite parties remained absent at the time of evidence. No evidence was let in by the opposite parties.
13. We heard both sides. Brief argument notes were filed by the opposite parties one and four.
14. Point No. 1 : The complainant has approached this Commission seeking refund of the purchase price along with compensation from the opposite parties with the allegation that after collecting the full consideration from him, the mobile phone of the make Lenovo P780 was delivered to him instead of the make Lenovo S-660 and that too not in a working condition and there was neglect on the part of the opposite parties to redress his grievance.
15. In order to substantiate his case, the complainant got himself examined as PW1, who has deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the bill dated 15/01/2016, Ext A2 is the print out of order details and Ext A3 is the print out of the email communications between the parties. MO1 is the mobile handset in question. MO1 was examined by an expert who is none other than the Lecturer, Department of Electrical and Electronics Engineering, Government Polytechnic College, Kozhikode and the report filed by him was marked as Ext C1. In Ext C1 it is stated that on visual inspection there were scratches on MO1 and it was found as a used product. The mobile phone was not getting charged and so it was unable to operate the device for checking the basic functions.
16. Ext A1 proves that the complainant had ordered a Lenovo S-660 mobile handset worth Rs. 6,695/-. Evidence tendered by PW1 coupled with MO1 and Ext C1 would prove that the mobile handset delivered to the complainant was a different one than what he had ordered and it was not working. The opposite parties have not seriously disputed this aspect. The opposite parties 2 and 3, who are the sellers, have chosen to remain absent at the time of evidence and did not cross-examine PW1. The opposite parties have not produced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked by the complainant.
17. It is also noticed that the first opposite party has expressed their willingness to arrange reimbursement of the price from the seller of the product. But they have taken quite contrary stand in the version and in the email communications. The reason for refusing the refund of the price stated in the version is that the acts of the complainant were found to be suspicious since two different persons were co-ordinating with them and they were providing different reasons for raising the refund request and they provided different bank account numbers. But in the email communication dated 30/01/2016 produced by the complainant, the stand of the first opposite party is that the request for refund /replacement of the mis-shipment item has been disapproved as their courier partner had confirmed delivery of the item to the complainant with the product being intact. Thus the first opposite party has inconsistent stand. However, from the averments in the version it is evident that the first opposite party had arranged for refund of the price. This itself would prove that the opposite parties were aware of the fact that a different product than what was ordered was delivered to the complainant and there was negligence and deficient service on their part, otherwise refund would not have been offered. Moreover, the opposite parties could not prove that what was actually delivered to the complainant was the product ordered by him. The act of the opposite parties 1 to 3 in delivering a different handset to the complainant than what he had ordered after collecting full consideration and that too a product not working, amounts to unfair trade practice and deficiency of service. The second and third opposite parties have taken a stand that they were totally unaware of the delivery of non-identical and used product to the complainant. It is seen that on 27/01/2016 itself the complainant had informed the first opposite party about the incident through email and they had agreed to resolve the problem by 28/01/2016 as can be seen from email communication dated 27/01/2016. If there was no deficiency of service on the part of the first opposite party, they would not have agreed to solve the issue. It was the duty of the first opposite party to inform the second and third opposite parties regarding the complaint raised by the customer. The averments in the version of the second and third opposite parties indicate that they were not informed by the first opposite party. There were latches on the part of the first opposite party as well. No satisfactory explanation is not forthcoming for not honouring the offer of refund/replacement. The complainant is entitled to get refund of the price of the product. Besides, he was put to mental agony and hardship due to the act of the opposite parties 1 to 3. He was not supplied with the product ordered in spite of paying the full price. The complainant is entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 5000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 3000/- as cost of the proceedings. The role of the fourth opposite party is only to provide a carrier to various sellers to deliver their products to the users of the online platform and hence they cannot be held liable and consequently entitled to be exonerated.
18. Point No.2: In the light of the finding on the above points, the complaint is disposed of as follows;
a) CC 81/2017 is allowed in part.
b) The opposite parties 1 to 3 are hereby directed to pay a sum of Rs. 6,695/- (Rupees Six thousand six hundred and ninety five only) to the complainant, being the price of the handset.
c) The opposite parties 1 to 3 are directed to pay a sum of Rs. 5000/- (Rupees five thousand only) as compensation to the complainant.
d) The opposite parties 1 to 3 are directed to pay a sum of Rs. 3,000/- (Rupees three thousand only) as cost of the proceedings to the complainant.
e) The payment as aforestated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 6,695 shall carry an interest of 6% p.a from the date of this order till actual payment.
f) The fourth opposite party is exonerated.
Pronounced in open Commission on this, the 28th day of November, 2022.
Date of Filing: 02/03/2017.
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PRESIDENT
Sd/- MEMBER
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MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of the bill dated 15/01/2016.
Ext. A2 – Copy of the order details.
Ext. A3 – Copy of the email communications between the parties.
Exhibits for the Opposite Party
Nil.
Commission Exhibits
Ext. C1 – Experts report.
Witnesses for the Complainant
PW1 – Priyesh. M (Complainant).
Witnesses for the opposite parties
Nil.
Material objects
MO1 – Mobile handset.
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PRESIDENT
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MEMBER
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MEMBER
Forwarded/By Order
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Assistant Registrar
