SMT. SAHANA AHMED BASU,MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
Briefly stated the facts of the instant consumer complaint are that complainant purchased one refrigerator of Hitachi being Model No.R-W660PND3 from Flipkart vide purchase order No.OD110500242787516000 and Invoice No.FABBKW1800050938 on 16/10/2017 at a price of Rs.87,249/- and it was delivered by Flipkart on 18/10/2017. As per the specification of the subject refrigerator it should have consist of Water and Ice Dispenser but in the subject refrigerator there was only Water Dispenser though such specification was published in the Website of Flipkart and it was found at the time of installation of such refrigerator. It is also found from the Hitachi’s technical manual that said function/specification is in other model i.e. Model No.R-W660PND3X and as such the complainant was mislead and / or misguided by the O.Ps. Complainant lodged complaint with the customer support team of Flipkart on 23/10/2017 vide complaint No.IN1710231816269445132 but the same complaint ID is cancelled an thereafter several complaint IDs were generated. Despite of repeated attempts and / or requests the problem was not resolved. Thereafter, complainant registered his grievance with the “Jago Grahak Jago Forum” with complaint ID No.9962529 and 9964271 and docket Nos.486442 and 523708. Then the Flipkart accepted the specification error and offered him to purchase any product worth of Rs.10,000/- but this type of offer could not accepted by the complainant as he has already spent huge money. Lastly, the complainant served a formal notice to the Flipkart on 06/12/2017 but to no effect. Finding no other alternative, the complainant approached before this Forum for redressal of his grievance.
O.Ps.-1 and 2 have contested the case by filing a joint W.V. denying and disputing all the material allegations as well as assailing the maintainability of the instant complaint as it is a case of suppression of material facts and a concocted story too. The specific case of the answering O.Ps. is that they are an electronic platform to facilitate the sale third party sellers who use this platform to list, advertise, offers to sell their products to the intending purchasers. The answering OPs. do not sell the products directly or indirectly.
Further case of the O.Ps is that in the invoice it is clearly reflected that the actual seller of the product is a third party seller and not the O.Ps. All the offers, warranty, price, after sale services or otherwise are offered and provided by the manufacturer and the answering O.Ps. It has clearly mentioned in the Flipkart Platform that all contractual/commercial terms are offered by and agreed to between the buyer and the seller alone. In the tax invoice it was clearly mentioned that the product ordered through Flipkart. Thus, the answering O.Ps. is not involved anyway in the entire transaction. It is also the case of the O.Ps.-1 and 2 that they offered a refund of the product along with a price difference upto Rs.10,000/- on fresh order as replacement option was no longer available due to item being out of stock with the seller though it was refused by the complainant.
O.Ps.-1 and 2 prayed for dismissal of the complaint against them as there is no deficiency in service on their part.
In spite of service of notice the O.P.-3 failed to appear and contest the instant case. Thus, the case against the O.P.-3 is proceeded ex-parte.
Points for Discussion
On pleading of the parties following points are came up for consideration :
- Are the OPs deficient in service ?
- Are the OPs indulged in unfair trade practice ?
- Is the complainant entitled to get any relief ?
Decision with Reasons
Points 1 to 3 :
All the points are taken up together for the sake of convenience and brevity in discussion .
The complainant and OPs 1 and 2 have tendered evidence through affidavit . The complainant and Ld Advocate for the OPs 1 and 2 submitted before the Ld Forum that they were not intended to cross examination. Ops 1 and 2 have filed BNA .
Despite of service of notice the OP3 did not turn up to contest the case . Therefore, the case has proceeded ex parte against OP3.
We have carefully examined the evidence and materials on record and also given thoughtful consideration to the arguments advanced by the complainant and Ld. Advocates for the OPs.
Undisputedly, the complainant purchased a refrigerator of Hitachi being Model No. R-W660PND3 from Flipkart vide Purchase Order No. OD110500242787516000 and Invoice No. FABBKW1800050983 at a price of Rs.87,249/- on 16.10.2017 and it was delivered by Flipkart on 18.10.2017. As per specifications published on Flipkart’s website the subject item should have considered of water and ice dispenser. Fact remains that the complainant came to know from the authorised personnel of Hitachi, who came for installation and demo and also from the Hitachi’s technical manual which supplied along with the refrigerator that subject refrigerator does not actually have that feature. We find this is serious demonstration of deficiency in service and unfair trade practice on the part of the OP-`1,2 and 3.
It is true that the complainant lodged complaint with the customer support team of Flipkart on 23.10.2017 vide complaint No.INI710231816269445132, but the same complainant ID is cancelled and thereafter numerous attempts and / or requests made through emails and phone calls. The issue remained unattended. We find the attitude of the OP is surely the demonstration of deficiency in service on the part of the OPs 1 and 2.
Ld. Advocate for the OP-1 has submitted that complainant is not consumer of the OP-1 and there is no privity of contract between the complainant and OP-1 fall within the definition of an intermediary U/s 2 (1) (w) of the information Technology Act, 2000, where it is mentioned:
“ intermediary with respect to any particular electronic records means any person who on behalf of the another person receives, stores or transmits that record or providing any service with respect to that record and includes telecom service providers, Internet Service Providers, search engines, online payment sites, online auction sites.”
We find that the complainant purchased the subject refrigerator as a Diwali Offer by the OP-1 and 2. The advertisement was appeared on the Website of the OP-1 and 2 and the offer was also made on the part of OPs 1 and 2.
Moreover, the email dated 23.10.2017 of the OPs 1 & 2 furnished by the complainant as Annexure-D shows that OPs 1 and 2 sought feedback for ‘ shopping with Flipkart ’ and ‘customer service experience’. The email dated 27.10.2017 shows that customer support of OPs 1 and 2 answered the complainant:
“We assure you that we will resolve your problem by 28th October,2017, 11.30 am.”
Again on the same date the customer support of OPs 1 and 2 mailed the complainant :
“We assure that we will resolve your problem by 31st October, 01.00 PM.”
Email dated 14.11.2017 goes to show that someone, Obedull Sheriff, Team Social Media, wrote on behalf of the OPs 1 and 2 :
“ We regret to inform that due to specification error, the product delivered to you does not fulfill your requirement. ”
In view of the above, we find that OPs 1 and 2 demonstrated deficiency in service. Moreover, when the complainant registered his grievance with Jago Grahak Jago Forum with complaint IDS 9962529 and 9964271 and 523708, then accepting the specification error through email dated 14.11.2017, OPs 1 and 2 wrote to the complainant :
“ We also like to extend our support and request you to choose a product of your choice as per your requirement and we will honour 10,000/- towards the newly placed order which will be reversed back to source for prepaid orders. ”
We find it is a gesture of unfair trade practice on the part of the OPs 1 and 2. The complainant argued that simple of ‘item return and refund of money’ by the OPs 1 and 2 for the product is unacceptable because as a new purchase by the complainant will now be priced in a much higher rates than the Diwali Offers. We find logic in this submission.
Ld. Advocate for the OPs 1 and 2 argued that OPs 1 and 2 is an ‘intermediary’ and protected by the IT Act, 2000. As per the definition of the IT Acts, 2000 and it amendments under 2 (1) (w) :
‘Intermediary’ with respect to any particular electronic records means any person who on behalf of another person receives stores or transmits that record or provides any service with respect tothat record and includes telecom service providers, network service providers, internet service providers, Web-hosting service providers, search engines, online payment sites, on line auction sites , online market places and cyber cafes ”.
In view of the above, the role of intermediary is restricted only to receive ‘store and transmit electronic records on behalf of other and or any service with respect to that record. Therefore, the intermediary should not receive payment from the consumer even if they serve as ‘online market place’. In this present case the payment was received by the OPs 1 and 2.The OPs 1 and 2 mentioned several times regarding ‘terms and conditions where OPs 1 and 2 mentioned that they are not directly liable for wrong product description or quality of the product. Despite of these terms and conditions OPs 1 and 2 offered a refund and addition Rs.10,000/- cash back on fresh purchase. We find this is nothing but a discrepancy.
We observed that the rate of OPs 1 and 2 are like a retail marketing place which sales a product from multiple vendors and manufacturers for their profit. Therefore, OPs 1 and 2 are equally liable for the said defective product with the manufacturers.
Therefore the complainant is entitled to get relief as prayed for.
Thus, all the point answered in the affirmative.
In the result, the case succeeds.
Hence,
Ordered
That the complaint case be and the same is allowed on contest against the OPs 1 and 2 and ex parte against the OP 3 with the litigation cost of Rs.5,000/- (Rupees five thousand) only.
OPs are jointly and severally directed to pay Rs.11,751/- to the complainant within 30 days from the date of this order along with litigation cost.
OPs are further directed to pay Rs.20, 000/- (Rupees twenty thousand) only to the complainant as a compensation for mental agony and harassment within the stipulated period.
Liberty be given to the complainant to put the order in execution, if the OPs transgress to comply the order.
