IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 28th day of January, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M. Anto, Member
CC No. 22/2022 (Filed on 01/02/2022)
Complainant : Renjith Jose, S/o T.A.Ouseph,
residing at Kayyalaparambil House
Umbidi P.O, Thottekkad,
Kottayam-686539.
Vs
Opposite party : Flipkart Internet Pvt.Ltd
Tower 5A, 5B, 5C
Embassy Tech Village Rd
Devarabisanahalli
Bellandur, Bengaluru
Karnataka-560103.
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under section 35 of the Consumer Protection Act 2019.
Brief facts, as averred in the complaint are that the complainant purchased 2 shirts worth Rs.1,594/- on 07-01-2022 vide order ID OD2238420538381710000 and 6 shirts vide order ID OD2238644318117450000 dated 10.01.2022 for an amount of Rs.5,612/-. The products were delivered in time by the opposite parties. On opening the parcel, the complainant found that the products in the box were of inferior /sub standard quality and were not the same products as shown by the opposite parties on its web site portal. While ordering the products it was clearly mentioned on the website that the products can be returned and they will be refunding the amount without fail. When the complainant tried to log in his Flipkart account it was showing the message as “Account Blocked, contact customer care” The complainant approached customer care of the opposite party, but no proper explanation for blocking his account was given instead that he got automated message from opposite party that “your return request has been cancelled as our system have detected an unusual high number of returns in your purchase history”. It is averred in the complaint the same could have been informed to the complainant before ordering the products. Hence this complaint is filed by the complainant praying for an order to refund the price of the product along with compensation of Rs.10,000/-.
Upon notice, opposite party appeared through its counsel and filed its version, taking preliminary objections that opposite party is an electronic platform which acts as intermediary to facilitate sale transactions between independent third party sellers and independent end customers. Further submitted that the business of answering opposite party falls within the definition of an "intermediary" under Section 2 (1) (w) of the Information Technology Act, 2000. The answering opposite party does not directly or indirectly sells any products on Flipkart Platform. Rather, all the products on Flipkart Platform are sold by third party sellers, who avail online marketplace services provided by it, on terms decided by respective sellers only; that any kind of assurance, price, discounts, promotional offers, after sale services or otherwise etc. are offered and provided by the manufacturer of the products sold on Flipkart platform. The opposite party neither offers nor provide any assurance or offers warranty to the end buyers of the product. The complainant is not a consumer of opposite party. There is no privity of contract between complainant and opposite party.
On merits, it was pleaded that with respect to the order ID OD2238644318117450000 the complainant has placed an order for multiple products on 10-01-2022 which were delivered to the complainant on 12-01-2022 and 13-01-2022. On 17-01-2022 the complainant contacted the opposite party through its customer care service and raised an issue in relation to products that some products received by the complainant are fake and have fittings issues. When the opposite party was initiating the resolution of the complaint it was observed that there ware unusual high number of return requests in the purchase history of the complainant and the account of the complainant is blacklisted. With respect to order Id OD2238420538381710000 the complainant has purchased two ARROW men solid formal black shirt on 02-01-2022 which was delivered to the complainant on 10-01-2022 and the complainant has never raised any issue regarding these products. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint.
Complainant filed proof affidavit in lieu of chief extermination and marked exhibit A1 to A4 from the side of the complainant. Sheetal Tiwari who is the legal counsel of the opposite party filed proof affidavit in lieu of chief examination for and on behalf of the second opposite party. No documentary evidence from the side of the opposite party.
On the basis of the contention of the rival parties we framed the following issues for consideration.
- Whether the opposite parties committed any deficiency in service as alleged.
- Regarding the relief and costs?
Point number 1and 2.
We have also carefully gone through the record as well as written arguments filed by the parties.
Learned counsel for the opposite party vehemently argued that the product was not sold by the opposite party, rather the same was sold by third party seller. The specific case of the opposite party is that the opposite party owns and operates an online web portal namely flip kart.com and is engaged in the business of online marketplace, providing platform/technology and/or other mechanism/services to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers and enables dealing in various categories of goods and there is no direct link in sale of goods. There is no contractual obligation of the opposite party towards the complainant and hence neither any liability can be attributed to the opposite party nor any relief can be claimed against the opposite party. There is no deficiency in service or unfair trade practice committed on the part of the opposite party.
There is no dispute on the fact that vide order ID OD2238644318117450000 the complainant has placed an order for 4 Allen solly anti-Bacterial Men Solid Casual shirts and 2 Roadster Men Solid Casual Dark Green Shirts on 10-01-2022 which were delivered to the complainant on 12-01-2022 and 13-01-2022 and vide order ID OD2238420538381710000 the complainant has purchased two ARROW men solid formal black shirt on 02-01-2022 which was delivered to the complainant on 10-01-2022. It is proved by exhibit A2 that the complainant had paid Rs.5,612/- to the opposite party for six shirts which were ordered by him vide order ID OD2238644318117450000.
According to the complainant the products were of inferior / sub-standard quality. Despite approaching number of times, the opposite party did not bother to get the return of the sub-standard products from complainant and the flip cart account of the complainant was blocked. Due to the act and conduct of the opposite party, the complainant suffered a great mental tension and harassment.
We have given our thoughtful consideration to the contentions raised by the parties and have carefully gone through the record of the case.
A complaint was also lodged with the Customer Care of the opposite party. However, in version, opposite party has mentioned nothing about the quality of the products supplied.
The other plea taken by the opposite party that the business of opposite party falls within the definition of an "intermediary" u/S 2(i)(w) of the Information Technology Act, 2000. There is no privity of contract with the complainant, as it merely provides an online marketplace where the independent third party sellers can list their products for sale; therefore, the sellers themselves are responsible for their respective listing of products on the website and opposite party is neither responsible for the products that are listed on the website by various third party sellers' as well as their delivery. The payment has been received by the opposite party, therefore, it cannot be said that there is no privity of contract between the complainant and opposite party. Once the opposite party has accepted the payment, then the opposite party also along with third party seller is responsible for the quality of products. Therefore, the ground taken in the version is not justified.
Herein are the excerpts of the provisions of Consumer Protection Act, 2019: “Deficiency” means as per Section-2 (11) of Consumer Protection Act, 2019, any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes – i)any act of negligence or omission or commission by such person which causes loss or injury to the consumer and ii)deliberate withholding of relevant information by such person to the consumer.
Section-2(17), i.e. Electronic Service Provider means a person who provides technologies or processes to enable the product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites.
Section-2(38), Product Service Provider means the person who provides any service in respect of such product.
Section-2(47) “Unfair Trade Practice” means a trade practice which for the purpose of promoting the sale, use of supply of any goods or for the provision of any service, adopts unfair method or unfair or deceptive practice namely; i) making any statement whether orally or in writing or by visible representation including by means of electronic record which – a) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model etc.
The Consumer Protection (E-Commerce) Rules, 2020 provides Under Section-4 (11), no e-commerce entity shall – a)manipulate the price of goods or services offered on its platform in such a manner as to gain unreasonable profit by imposing on consumers any unjustified price having regard to the prevailing market condition, in the essential nature of the good or service, any extra ordinary circumstances under which the good or service is offered and any other relevant consideration in determining whether the price charged is justified.
Unfair Contract means a contract between a manufacturer or trader or service provider on one hand and the consumer on the other, having such terms which cause significant change in the rights of such consumer. Imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage. The Opposite Party is the agents who sells the 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, as held by the Hon’ble National Commission in Revision Petition No.756/2016 between Emerging India Real Assets Limited and another Vs.Kamer Chand and another. The Opposite Party is in contract and agreement with the manufacturer and are service providers through e-commerce entity and are bound by the contract between the manufacturer product seller, i.e. Opposite Party and the consumer and are bound to provide the information and details about the product to the sellers offering goods. The Opposite Party come within the purview of the above definitions of Consumer Protection Act, 2019 with regard to deficiency in service and unfair trade practice committed by them and also the consequences of the same. The Complainant has not made the manufacturer, as one of the Opposite Parties, who originally packaged and sold the product to the Opposite Party. There is tripartite contract between the seller, service provider, i.e. the Opposite Party and the consumer. As such, the seller and service provider are liable for any defect, deficiency of service and unfair trade practice on the services provided or good/product sold by them. Therefore, the opposite party has not performed their duties of sellers on market place as laid down in the Consumer Protection E-Commerce Rules, 2020.
Though the opposite party contended that there were unusual high number of return request in the purchase history of the complainant and the account of the complainant is blacklisted they did not adduce any evidence to prove their contention.
Sequel to the above discussions, the we allow the complaint and pass the following order.
We hereby direct the opposite party to pay Rs.5,612/- to the complainant.
We hereby direct the opposite party to pay Rs.7,500/- as compensation to the complainant for the deficiency in service and unfair trade practice on the part of the opposite party.
Order shall be complied within 30 days from the date of receipt of copy of this order failing which the awarded amounts will carry 9% interest from the date of this order till realization.
Pronounced in the Open Commission on this the 28th day of January, 2023.
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- Order confirmation mail dated 10.01.2022 at 6.13 pm.
A2- Mail copy sent to CEO of Flipkart dated 17.01.2022 at 12.35 pm.
A3- Mail copy sent to grievance officer at Flipkart dated 17.01.2022 at 5.12 pm.
A4- Copy of complaint details dated 17.01.2022.
By order
sd/-
Assistant Registrar
