FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application U/s 35 of CP Act 2019 filed by the complainant coupled with the petition U/s 34 (2 ) (d) of CP Act, 2019 which was registered as MA-229/2021.
By filing that MA -229/2021, the complainant obtained the permission of this commission to file this case against the OPs 1, 2, 3 and 4 who are carrying their business outside jurisdiction of this commission.
The permission was granted by this commission by order dated 26.02.2021.
The fact of the case in brief is that the complainant had ordered a Flip Kart Smart buy Vortex SB75HMNK 750 juicer mixer grinder bearing order No. OD120092505857658000 on 30 .10.2020 through on line worth Rs. 2,250/- and that was delivered to the complainant by the OP on 16.11.2020 on payment of Rs. 2,250/-.
At the time of using the product, the complainant noticed that there was some defect in the said product then he made a complaint and requested to return the said product within the tentative date as stated in the Flip Kart Website as per their return policy. The online complaint was duly registered and his request to refund the amount was accepted bearing refund ID- 12102023774478707575 with a remark “we will pick the item youwise to return by today, Nov 2017, refund of Rs. 2,249/- will be added to your bank account within 02 business days (bank holidays not included) after pick his completed” the acknowledgment of the complaint is marked as annexure “A”. On the next day a man has come to pick up the defective product but after inspecting the same, he refused to took back the said product thereafter the complainant on several occasion helped over the issue with the online representative and customer care of the OP who gave assurance to refund the money within due course but in vain.
Thereafter, the complainant issued a advocate notice dated 18.11.2020 upon the OPs 1 and 2 claiming to refund of Rs. 2,250/- and the letter is annexed herewith as annexure “B”. The cause of action arose on 17.11.2020 when the representative of the OP refused to take back the defective product.
Under such circumstances, when the OP did not response to request of the complainant. Without having any other alternative, the complainant filed this case against the OPs with a prayer to give direction upon the OPs for giving compensation of Rs. 2,00,000/- to the complainant due to mental pain and agony and irreparable loss and injury and litigation cost.
The OPs 1, 3 and 4 have contested the claim application by filing a WV denying all the material allegation leveled against them.
It is alleged by the contesting OPs that the complainant has suppressed the material facts and trying to mislead the commission so the petition of complaint is liable to be dismissed.
It is further stated by the OPs that the OP- 1, Flip Kart Internet Pvt. Ltd. is engaged among other in providing trading/ selling facility over the internet through its website www.flipkart.com and mobile application(Mobile app) which is referred as “Flip Kart Platform”.
The OP-1 provides online market place platform/technology and or other mechanism/services through the sellers and providers of product to facilitate the transaction, electronic commerce for various goods by and between buyers and sellers and nobles them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches, cloths, footwear, health care and personnel products, home appliance and electronic etc.
it is further case of the OPs that “Flip kart Platform” is an electronic platform which acts as intermediary to facilitate the sell transaction between independent third party seller and independent end customers so once a buyer to accept the offer of sale of the product made by third party seller on the Flip Kart Platform, the seller is intimated electronically and is required to insure that the products are made above and delivered in accordance to delivery terms as per terms for sale. Displayed by seller on the flip kart platform. So, being intermediately the OP-1 is protected by the provision of Section 79 of the Information Technology Act, 2000. In the instant case the complainant ordered Flip Kart Smart buy Vortex SB75HMNK 750 juicer mixer grinder. From one of the seller listed on the online website of the OP-1 on 30.10.2020 and ie was delivered to the complainant on 16.11.2020 through third party courier service. So, the OP-1 being near intermediary is not privity to the contract between the seller, buyers and manufacturer as well as authorised service centre. So, the answering OP-1 has/had no role in providing warranty of the product sold by independent seller through Flip Kart Platform and the OP-1 is not at all owned/control/associated with the third party seller/manufacturer or authorised service centre of the product in question and in no way responsible to satisfy the claim of the complainant. So, the fact and circumstances as stated by the complainant has no basis at all. Thus the same is liable to be dismissed with exemplary cost.
The OP-2 has adopted the WV filed by the OP- 1,3 and 4 by filing a petition and that was accepted and allowed vide order dated 08.12.2021.
In view of the above stated pleading the points of considerations are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On careful perusal and consideration of the fact and circumstances of this case material as well as evidence on record as adduced by this parties to this case, it is held by this commission that this commission has got both territorial and pecuniary jurisdiction to try this case.
It is held by this commission that the complainant purchased the product in question from Flip Kart Website on line on payment of Rs. 2,250/- from the OPs and that was delivered to him on 16.11.2020 and after using the same on same self day that juicer mixer grinder was found defective and the complainant made complaint in the website of the OPs and that was received by the OPs. The OPs respond to the complaint of the complainant and assured that they will pick up the item from the complainant to return by 17.11.2020 and refund the price to his bank account
within two business days (bank holiday not included ) after pick up his complainant. It is alleged by the complainant on 17.11.2020 a person came to the complainant’s house and introduced himself as a representative of the OPs and after examination of the product in question he refused to take back the same. The complainant made contact on line to the OPs on several occasion. Ultimately, he served a legal notice dated 18.11.2020 to the OPs claiming refund of the price of product in question amounting to Rs. 2,250/-. The said legal notice was duly received by OPs on 21.11.2020 and the complainant filed this case on 21.01.2021. From which it is established that there is/was sufficient cause of action of the complainant to file this case and he filed the case within the period of limitation.
From the discussion made above, it is observed by this commission that the instant claim is well maintainable in the eye of law. It is admitted fact that the complainant has purchased the juicer mixer grinder online from the platform of the OPs through its website www. flikaprt.com on 30.10.2020. The price of which was Rs. 2,250/-. It is also admitted fact that the complainant had ordered through Flip Kart Smart Buy Vortex SB75HMNK 750 juicer mixer grinder bearing order No. OD120092505857658000 dated 30.10.2020 at a consideration of Rs. 2,250/-.
Admittedly that product in question was delivered to the residence of the complainant on 16.11.2020 bearing order No. OD120092505857658000 and price of the product was Rs. 2,250/- paid by the complainant in cash.
The OPs also admitted the fact that the complainant after noticing that the product in question is defective sent complaint online with a request to return the product in question within tentative date as stated in the Flip Kart Website as per their return policy.
From the evidence on record as adduced by the OPs, it is revealed that they received the online complaint sent by the complainant and stated that they will pick up the item on 17.11.2020 and also refund of Rs. 2,250/- through bank account.
Even after admitting all the allegations of the complainant the OPs 1 and 2 are taking the plea that they are the only intermediary. They only provide the market place platform/technology and /or other mechanisms/services to the sellers and buyers of product to facilitate the transaction, electronic commerce for various goods between the third party sellers and the buyers. They also claimed that they have no nexus with the matter of transactions made in between the third party , sellers and the complainant like the instant case. The OPs 1 and 2 stated that the onus of proof is lying upon the complainant that there was deficiency in service and unfair trade practice on the part of the OPs. but it is law of land that admitted fact need not be proved. Moreover, the OPs have admitted entire facts and circumstances, in their WV as well as evidence. The complainant also by submitting required documents and in evidence has proved the fact that the juicer mixer grinder in question was defective and the OPs have /had assured to return back the same and refund the price of Rs. 2,250/- to the complainant by bank account but they did not do that. Rather they did not give any response of the legal notice to the complainant and did not retune of price of the product in question which is amounting to deficiency in service and unfair trade practice on their part for which the contesting OPs should be liable to pay compensation to the complainant.
Hence, in view of discussion made above, it is held by this commission that the OPs admitted the complainant as a consumer and they are the service provider because they admitted in their evidence and WV the complainant ordered the product in question online from their platform and the product was delivered to him on receipt of the price of Rs. 2,250/- so it is need less to mention here that the complainant is a consumer within the ambit of CP Act, 2019 and the OPs are the service providers. it is also held by this commission that the OPs being the service provider have neglected failed to give proper service to the complainant and they did not return back the product in question and also did not refund the amount price of the same of Rs. 2,250/-. Such conduct of the OPs proved that there was gross deficiency in service on their part and also unfair trade practice which caused harassment, mental pain and agony to the complainant. Thus, the OPs are liable to pay compensation to the complainant.
On the basis of discussion made above, it is held that the complainant being a consumer could be able to prove his case beyond all reasonable doubt and is entitled to get relief as prayed for.
All the points of consideration are thus considered and decided favorably to the complainant.
The case is properly stamped.
Hence,
Ordered
That the case be and the same is decreed on contest against the OPs with cost of Rs. 1000/-.
The OPs are directed to pay compensation of Rs. 5,000/- to the complainant for mental pain and agony along with litigation cost of Rs. 2,000/- either jointly or severally within 45 days from this date of order i.d., the complainant will be at liberty to execute the decree as per law through a separate proceedings.
