Chandigarh

StateCommission

CC/113/2023

Mr. Ashwani Chawla - Complainant(s)

Versus

Flipkart Internet Pvt. Ltd. - Opp.Party(s)

PANKAJ CHANDGOTHIA ADV.

20 Feb 2024

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

===========

 

Consumer Complaint No.	:	CC/113/2023
Date  of  Institution	:	09/10/2023
Date   of   Decision	:	20/02/2024

 

 

 

 

Ashwani Chawla son of Satpal Chawla, Resident of House No. 2872, Ground Floor, Sector 42-C, Chandigarh – 160036.

…. Complainant

 

Vs.

 

1.     Flipkart Internet Pvt. Ltd., Building Begonia Block B, 8^th Floor, Embassy Tech Village, Outer Ring Road, Varthur Hobli, Bengaluru East Taluk, Devarabeesanahalli Village, Bengaluru, Karnataka – 560103.

 

2.     Bathla Teletch Pvt. Ltd., 210, Second Floor, Gujrawala Town Part-2, near Gate Mall, New Delhi – 110009.

 

3.     Oneplus Technology India Pvt. Ltd., UB City, 24, Vittal Mallya Road, KG Halli, D’souza Layout, Ashok Nagar, Bengaluru, Karnataka – 560001.

 

4.     Oneplus Exclusive Service Centre, Berkeley Square, Shop No.1, Plot No.24, Phase-I, Indl. Area, Chandigarh – 160003.

…… Opposite Parties

 

 

BEFORE: PADMA PANDEY             PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

 

PRESENT	:	Sh. Pankaj Chandgothia, Advocate for the Complainant.
		Sh.Gaurav Bhardwaj, Advocate for Opposite Party No.1.
		Respondents No.2, 3 & 4 ex-parte.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

1.         In brief, the facts necessary for the disposal of the instant Consumer Complaint are, the Complainant had ordered one brand new OnePlus 11R 5G (Sonic Black, 256 GB) mobile handset through Flipkart vide invoice dated 17.07.2023. Apart from the said invoice, another separate invoice dated 17.07.2023 was also issued towards offer handling fee (Annexure C-1 & C-2). The said mobile handset developed mal-functioning right from the very beginning as whilst opening camera application, it phone got hanged and there was frequent battery drainage at ultra- rapid rate than normal. The Complainant approached the Service Centre on 08.08.2023 to fix the problems, where the concerned Engineer after checking the product, suggested a software update/ repair and also revealed that as per their online mobile data system the product was activated on 02.03.2023 (service record Annexure C-3); whereas, the Complainant purchased and received the product from Flipkart on 17.07.2023. As such, the Complainant refused to get the said mobile repaired, upon which the Service Centre Staff relegated the Complainant to the manufacturer, seller and the marketing online platform inter-mediary. The Complainant accordingly, took up the issue with the market place e-commerce entity and the online platform and Seller, but there was no reply or resolution. Due to which, the Complainant ordered another mobile with the Opposite Parties vide invoice Annexure C-6 & C-7. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainant has preferred the instant Consumer Complaint under Section 47(1)(a)(ii) of the Consumer Protection Act, 2019.

 

2.         Notice of the complaint was sent to Opposite Parties seeking their version of the case. However, nobody appeared on behalf of Opposite Parties No.2, 3 & 4 despite service, therefore, they were proceeded ex-parte on 24.11.2023.

 

3.         Subsequently, Opposite Party No.2 filed reply in the Registry on 05.12.2023, but since Opposite Party No.2 has already been proceeded against ex-parte, as such the reply cannot be taken into consideration.

 

4.         Opposite Party No.1 filed its written statement, admitting the basic facts of the case. It has been pleaded that Opposite Party No.1 is merely an online intermediary and is neither actual seller nor manufacturer nor service provider of the product. It is the seller & manufacturer who can revert on the quality and contents of the product. The Complainant had used the mobile phone from 17.07.2023 to 07.08.2023 for around 21 days without any problem and the answering Opposite Party had already performed the needful on its part. Pleading that there was no deficiency in service or unfair trade practice on its part and no case is made out for invocation of Section 47(1) (a) (ii), a prayer has been made by the Opposite Party No.1 for dismissal of the complaint.

 

5.         Parties led evidence by way of affidavits and documents.

 

6.         We have heard the learned counsel for the contesting parties and gone through the record of the case with utmost care and circumspection.  

 

7.         After scanning of record our findings are as under:-

 

8.         The Complainant has brought the instant Complaint under Section 47(1)(a)(ii) of the Consumer Protection Act, 2019, alleging that the Opposite Parties offered to sell the subject mobile handset representing it to be a brand new one & defect free and the Complainant accepted this offer accordingly and the Opposite Parties are deficient in providing service and  adopted unfair trade practice by selling and delivering defective & second hand mobile handset,  which constitutes “unfair contract” as they deceptively sold an used product representing it to be a brand new.

 

9.         It may be stated here that the provisions of Section 47 of Consumer Protection Act, 2019 (under which the present Complaint has been filed) speak about the jurisdiction of this Commission. It is necessary to reproduce relevant provisions of Section 47 of CPA 2019, which reads thus:-

“………47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

 

1. to entertain—

 

1. complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;

 

2. complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees; appeals against the orders of any District Commission within the State…

 

3. xxxxxx…..….”

 

                A bare perusal of Section 47 (1) (a) (ii) provides that this Commission shall also have the jurisdiction to entertain and decide the complaint(s) against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees, (pecuniary jurisdiction of State Commission has now been decreased to rupees two crores vide Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 dated 30.12.2021. Definition of “unfair contract” has been provided under Clause 2 (46) of CPA 2019, which reads thus:-

 

(46) "unfair contract" means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:—

 

(i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or

 

(ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or

 

(iii) refusing to accept early repayment of debts on payment of applicable penalty; or

 

(iv) entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or

 

(v) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or

 

(vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage….”

 

 

10.         Learned Counsel for the Complainant argued that the Opposite Parties acted against the buyers’ interest by firstly selling a defective and second hand mobile handset under the garb of a brand new product and thereafter, failed in fulfilling the attendant responsibilities of replacement/refund of the product, which tantamount to unfair contract.

 

11.         We find sufficient force in the argument raised by the Learned Counsel for the Complainant as prima-facie it amounts to deceptive sale of damaged and used product representing it to be a brand new one. Record showed that the subject product was received from Opposite Party No.1 (Flipkart) as a brand new handset on 17.07.2023, while the service record dated 08.08.2023 (Annexure C-3) makes it evidently clear that as per the online mobile data system of the service centre, the date of activation of the product was 02.03.2023, meaning thereby, the Complainant was sold an old, used and second hand product rather than a brand new one for which he had parted with his hard earned money. Evidence on record goes a long way to prove that the Complainant run from pillar to post searching for a remedy, but to no avail. The manner in which the Opposite Parties acted themselves showed that they are least concerned about the customer grievance redressal but are just concentrated upon earning profits through misleading the public and then, not addressing their Complaints.     

 

12.         Learned Counsel for the Complainant while referring to the tax invoices (Annexures C-1 & C-2 and Annexures C-6 & C-7) argued that Opposite Party No.1 issued two separate bills for a single transaction. We have perused the aforesaid tax invoices annexed and are of the concerted opinion that Opposite Party No.1 charged an offer handling fee of ₹49/- beyond the offer price of the mobile handset by way of a separate and discreet billing. To our mind, these bills impose on the customer an unreasonable charge and the said billing amounts to double charging for the same purpose i.e. handling. A perusal of the main tax invoice showed that the Opposite Parties charged ₹139/- towards shipping and handling charges and by way of additional billing the Opposite Parties again charged for offer handling fee, which amounts to unfair contract and unfair trade practice.    

 

13.         Further the aforesaid act of the opposite parties amounts to ‘dark patterns’ practices, as per Guidelines for Prevention and Regulation of Dark Patterns, 2023, recently notified by Central Consumer Protection Authority vide Notification dated 30th November 2023. Section 2(1)(e) of these guidelines defining “dark patters” reads thus:-

“(e) “dark patterns” shall mean any practices or deceptive design pattern using user interface or user experience interactions on any platform that is designed to mislead or trick users to do something they originally did not intend or want to do, by subverting or impairing the consumer autonomy, decision marking or choice, amounting to misleading advertisement or unfair trade practice or violation of consumer rights;”

 

                Further as Section (4) of these guidelines clearly prohibits any person including any platform from engaging in any dark pattern practice.  Therefore, by alluring online advertisements and bald assurances of delivering first hand products without fulfilling the attendant responsibility or replacement/refund of the product, the opposite parties indulged into “dark patterns” practice in addition to unfair contract and unfair trade practice.  

14.         Learned Counsel for Opposite Party No.1 argued that it has no liability being a platform to facilitate transaction of sale & purchase and it is the Seller of the product who provides warranty/guarantee on a particular product and no defect/deficiency in the product can be imputed to the Opposite Party No.1 for any alleged deficiency in service. However, we are not inclined to toe in line with the argument raised for the reason that when Opposite Party No.1, which is a reputed online shopping website, made an offer and the complainant placed the order accepting that offer, the agreement stood completed between the parties. It would have been a different case had there been a cancellation before the order was confirmed. However, when Opposite Party No.1 allowed the third party seller to operate on its platform, their responsibility cannot be lost sight of.  The Opposite Party No.1 and the seller as well as the manufacturer (Opposite Parties No.2 & 3) are within the purview of Act with regard to deficiency in service and unfair trade practice committed by them and also the consequences of the same.

 

15.         In the wake of above, it is established beyond all reasonable doubts that the complaint of the Complainant is genuine. The harassment suffered by the Complainant is also writ large. The Opposite Parties have has certainly and definitely indulged into unfair trade practice as they ought to have redressed the grievance of the Complainant forthwith, which they miserably failed to do and propelled this unwarranted, uncalled for litigation upon the Complainant. Thus, we have no other alternative, but to allow the present complaint against the Opposite Parties. Had, Opposite Parties been vigilant in resolving the issue promptly, complainant would not have been put to unnecessary harassment and mental tension, who otherwise had to knock at the door of this Commission for seeking redressal by spending money on litigation. In this backdrop, we are of the considered view that the ends of justice would be met if the complainant is awarded a sum of ₹10,000/- on account of compensation for mental agony and physical harassment and ₹10,000/- as litigation expenses.
16.         The sequence of the events of the present case, clearly establishes the high headedness of the Opposite Parties of which the complainant became the victim,  which further aggravated his pain & harassment. Thus, on this account, we deem it proper to penalize the Opposite Parties for indulging in such activity, thereby causing not only loss but also mental agony and physical harassment to the complainant. Therefore, the Opposite Parties are penalized with cost of ₹10,000/- (@ ₹2500/- each) to be deposited in the “Consumer Legal Aid Account” No.32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary, Hon’ble State Commission UT Chandigarh.
17.         For the reasons recorded above, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is partly allowed. The Opposite Parties are, jointly & severally, directed:-

[i]     To refund a sum of ₹40,941/- plus ₹49/- plus ₹49/- to the Complainant being the invoice price of the mobile handset and offer handing fee charged from the Complainant, along with interest @ 9% p.a. from the date of payment, till realization to the complainant.

[ii]    To pay ₹10,000/- as compensation to the complainant for deficiency in service, unfair trade practice and for causing harassment caused to her.

[iii]   To pay a sum of ₹10,000/- to the complainant as litigation expenses. 

[iv]   Opposite Parties shall deposit ₹10,000/- (@ ₹2500/- each) in the “Consumer Legal Aid Account” No.32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary, Hon’ble State Commission U.T. Chandigarh.

[v]    to immediately discontinue the practice of issuing two separate bills for a single transaction on the pretext of offer handling fee and not to indulge in such like unfair contract & unfair trade practice and “dark patterns” practices;

18.         This order shall be complied with by the Opposite Parties within one month from the date of receipt of its certified copy, failing which Opposite Parties shall be liable for an interest @12% per annum on the amount mentioned in sub-para [i] above from the date of payment, till it is paid. The compensation amount as per sub-para [ii] above, shall carry interest @12% per annum from the date of institution of this complaint, till it is paid, apart from cost of litigation of ₹10,000/-. The amount mentioned at Sr.No.[iv] above be deposited by Opposite Parties in the account aforesaid, within one month from the date of receipt of its certified copy, failing which the same will carry interest @ 12% p.a. from the date of this order till its deposit, apart from compliance of directions contained at Sr.No.[v] above.  A copy of this order be also sent to the Secretary (SCDRC), U.T. Chandigarh, for necessary action.
19.         The Complainant shall return the defective mobile handset in question, if it is in his possession, to the Opposite Parties, after the compliance of the order.

 

20.         The pending application(s), if any, also stands disposed off.

 

21.         Certified copies of this order, be sent to the parties, free of charge. The file be consigned to Record Room, after completion.

Pronounced

20^th February 2024                                                            

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

“Dutt”