Delhi

North

CC/71/2019

PARAG TAYAL - Complainant(s)

Versus

FLIPKART INTERNET PVT. LTD. - Opp.Party(s)

18 Sep 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 71/2019

In the matter of

Sh.Parag Tayal     

S/o Sh.Manoj Tayal

R/o A-8/13, Rana Pratap Bagh

New Delhi-110007                                                                                                                                           ...Complainant

Versus

Flipkart Internet Pvt. Ltd.

Vaishnavi Summit

Ground floor, 80 feet Road

7^th Main Koramangala

3^rd Block, Bangalore-560034

 

Tech Connect Retail Pvt.Ltd.

Unit No.403, 4^th floor

Baanl 1

Next to Hilton Double tree Hotel

Golf Course Road

Sector-56, Gurgoan, Haryana-122011                                                                                                       …Opposite Party -2

 

 

Ekart Courier Services

E-2, Rajanbabu Road,

Adarsh Nagar, New Delhi-110033                                                                                                            …Opposite Party -3

 

ORDER
18/09/2023

Harpreet Kaur Charya, Member

          The present complaint has been filed under Section 12, of the Consumer Protection Act, 1986 by Sh. Parag Tayal, the complainant against Flipkart Internet Pvt. Ltd. as OP-1 (e-commerce platform ), Tech Connect Retail Pvt. Ltd., as OP-2 (the seller) and Ekart Courier Services, as OP-3(the logistic partner),with the allegations of deficiency in services.

1. Facts necessary for the disposal of the present complaint are, on 03/03/2019, the complainant placed an order for HP Pavillion X360 Laptop with OP-1, an invoice no.FAAVUF1907539565 of Rs.48,490/- was issued. 
2. On 04/03/2019, OP-3 delivered a packet which was received by the complainant.  An un-boxing video of the package was made by the complainant. It has been stated by the complainant that when he opened the box it contained rim of A4 size blank sheet.    Immediately, OP-1 was informed telephonically but no satisfactory answer was given.  On 10/03/2019, the video clip though email was sent to OP-1 and OP-3 was also personally informed.  It has been further stated by the complainant that he also tried to contact OP-2 but all in vain and despite lapse of 25 days the grievance of the complainant was not addressed.
3. Legal notice dated 16/03/2019, was served upon OP calling them to send the HP Pavillion X360 Laptop or refund an amount of Rs.48,490/-. The Legal notice was served on 20/03/2019, which was neither replied nor complied with. 
4. Hence, the present complaint with the prayer for direction to OP-1 to OP-3 to jointly and severally refund Rs.48,490/- along with interest @18% from 03/03/2019  till realization; compensation of Rs.50,000/- on account of mental agony. 
5. The complainant has annexed the copy of invoice dated 03/03/2019, copy of emails dated 10/03/2019, 12/03/2019, 13/03/2019, 14/03/2019 and 16/03/2019; copy of the legal notice dated 16/03/2019 along with postal receipts and tracking report; copy of police complaint dated 15/03/2019, photographs and CD containing un-boxing video of the package delivered by OP-3.
6.  Notice of the present complaint was issue to OPs, thereafter written statement was filed on behalf of OPs. 
7. OP-1 has taken several preliminary objections in the defence such as the complainant has suppressed true and material facts; Flipkart provides online marketplace platform/technology and/or other mechanism/services to the sellers and buyers of product facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and acts as an intermediary to facilitate sale transactions between independent third party seller and independent customers.  It has been submitted that once a buyer accept the offer of sale of the product made by the third party seller on the Flipkart platform, the seller is intimated electronically and required to ensure that the products are made available and delivered in accordance to delivery terms as per the terms for sale displayed by the seller on the platform.
8. They have further submitted that as per Section 2(1) (w) ,of the Information Technology Act, 2000, which is reproduced as here under :

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, storesor transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;”

9. OP-1 has also referred to Section 79,of the Information Technology Act,2000 which is reproduced as here under :
10.  

1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary, shall not be liable for any third party information, data or communication link made available or hosted by him.

 

2. The provisions of sub-section (1) shall apply if-

 

1. The function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted ; or
2. The intermediary does not-

1. Initiate the transmission
2. Select the receiver of the transmission and
3. Select or modify the information contained in the transmission;

3. The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

10. It has been submitted that the sellers are separate entity being controlled and managed by different person and in the present case the actual seller of the product is the third party seller and not OP-1.  Any kind of assurance, whether in terms of warranty of the products, price, discount, and promotion offers, after sale services or otherwise, are offered and provided by the manufacturer of the product. 
11. There is no privity of contract between the complainant and OP-1 as they are neither a trader nor a service provider hence, the complaint is bad for mis-joinder of the parties. The complainant had placed order through Flipkart, thus the entire transaction was executed between the seller and the complainant.  
12. It has also been stated that it transpires that the product was allegedly missing from the box when it was delivered to the complainant by the delivery man of the logistic company, therefore, the grievance of the complainant should have been only against the manufacturer/seller of the product.  The liability to deliver the product rests with the seller and in case there is defect or after-sale services are to be addressed by the manufacturer.  
13. Another objection taken by OP-1 is, the complainant had registered his complaint regarding initiation of return of product due to missing of product and not for the alleged issue as mentioned in the complaint.   There was no delay on the part of OP-1 as the complaint was escalated with the seller of the product.  Rest of the contents of the complaint have been denied due to want of knowledge. 
14. Tech Connect Private Limited, OP-2 also filed the written statement where they have stated that they are engaged in the business of sale of goods manufactured/produced by others and are registered reseller with OP-1.  It has been further submitted that OP-2 has separate and distinct identity from that of the manufacturer of the product i.e. ASUS and there is no relation of principle and agent between ASUS and OP-2 ( para 3).  They have also submitted it transpires that the product was allegedly missing from the box when it was delivered to the complainant by the delivery man of the logistic company.  Delivery of the product in non-sealed pack has been denied. Further they have objected that the complainant has not annexed photographs with the complaint.
15. It has been submitted that the product was duly delivered by OP-2 in a sealed box (as it was received from the manufacturer/distributor) within the time specified in the order.  Rest of the contents of the complaint have been denied.  It has also been denied that there was any deficiency in services on the part of OP-2 with the prayer for dismissal of the complaint with cost.
16. Written statement on behalf of E-Kart services Pvt. Ltd., OP-3 was filed. They have stated that the present complaint is false, frivolous and vexatious.  It has been submitted that there is no privity of contract between complainant and OP-3, as they provides delivery services and in the instant case the product was delivered in a sealed box to the complainant within the specified time. Rest of the contents of the complaint have been denied with the prayer for dismissal of the same.
17. Complainant has filed evidence by way of affidavit, where the content of the complaint have been reaffirmed.  He has got exhibited the copy of the Aadhar Card as Ex.CW/1; the invoice for Rs.48490/- is exhibited as Ex.CW1/2; the picture of the box containing rim of A4 size paper as Ex.CW1/3; the email dated 10/03/2019 is Ex.CW1/4; copy of legal notice along with postal receipt as Ex.CW1/5 and Ex.CW1/6 respectively.
18. OP-1 has got examined Ms. Amrita Pratap, Authorised Signatory examined on their behalf.  She has repeated the contents of the written statement in the evidence affidavit.
19. Mr. Rajiv Kumar Dhawan, Authorised Signatory of OP-2 has also reaffirmed the contents of their written statement. 
20. Though, the affidavit of Ms.Swati Singh, Authorised Signatory has been filed on behalf of OP-3 i.e. Ekart.  The contents of the written statement filed on behalf of OP-3 have been reiterated. However, it has been written in the affidavit:

“That, I am authorised signatory of Flipkart Internet Private Limited, Opposite Party No.3 and I am conversant with the facts and circumstance of the case and able to depose to the same.”

 

21. We have heard the submission made by the Complainant appearing in person and have perused the material placed on record, as OPs have stopped appearing.  The complainant has alleged that instead of the laptop ordered by him, a ‘rim of A-4 size sheet’ in a box of laptop was delivered. The placing of order by the complainant is not in dispute and so is the invoice.   In support of his allegations the complainant has filed a CD containing un-boxing video as well as the photographs.   
22. The complainant was prompt in registering complaint with OP-1 regarding non-delivery of the product ordered.  In support of his allegations the complainant has filed emails exchanged from 10/03/2019 to 16/03/2019. In an email dated 11/03/2019 at 1.51 p.m., it has been stated by OP-1 that the request for replacement cannot be fulfilled by the seller as the courier partner has confirmed delivery of the item to the customer with the product being intact. The said email has been replied by the complainant vide email dated 14/03/2019 at 8.54 p.m., requesting the OP-1 to share the proof that the parcel had been delivered intact as well as the proof from the seller. 
23. OP-1 has not supplied the inquiry report, despite the fact that it was demanded by the complainant neither they have placed it on record.  OP-1 in their defence has claimed exemption from liability under Section 79 of the Information Technology Act, 2000.

79: Exemption From Liability Of Intermediary In Certain Cases- (1)Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made hosted by him.

(2) The provisions of sub-section (1) shall apply if –

(a) the function of the intermediary is limited to providing access to a  communication system over which information made available by third parties is transmitted or temporarily stored; or

(b) the intermediary does not –

(i) Initiate the transmission,
   (ii) select the receiver of the transmission, and
   (iii) select or modify the information contained in the transmission

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf

24.  In the present case, the exemption from liability does not come to their aid as they have acted in contravention to the provisions of Section 79 (1) of the Information Technology Act, 2000 which is subject to the conditions stipulated in Section 79(2). As per Section 79(2)(c) of the Information Technology Act, 2000, the provisions of Sub Section 1 shall apply if - the intermediary observed due diligence while discharging his duties under this Act and also observed such other guidelines as the Central Government may prescribed in this behalf.  
25. In the present complaint the inquiry conducted by OP-1 bears the retailer name as “Retail Net” whereas the invoice bears the name “Tech Connect Retail Pvt. Ltd.” Further, from the perusal of the mails, it is observed that in an email dated 15/03/2019 at 11.11 a.m. and 12.17 a.m., it bears the seller name of  “Retail Net “ whereas the invoice bears the name “Tech Connect Retail Pvt. Ltd.”
26. Apart from that, OP-1 has not only failed to share the inquiry conducted by them with respect to the complaint registered by the complainant despite the request of the complainant. Beyond that as evident from the emails, they have exonerated the seller, who has not sold the product to the complainant. Thus, OP-1 has escalated the issue with the wrong seller and has closed the grievance/ compliant without following the process of due diligence.
27. In the para 14 of the Written statement of OP-1, it has been stated that “it transpires that the product was allegedly missing from the box when it was delivered to the complainant by the delivery man of the Logistic Company and the grievance of the complainant should have been only against the manufacturer of the product or seller of the product or against the Logistic company”.  In the same para it has been stated that “it is settled preposition of law that the liability to deliver a product at the address provided by the complainant rest with the seller and further for the defect in the product or after sales service issue rests with the manufacturer and its Authorised Service Centre respectively.”  It is pertinent to note that not even a single document has been filed by either of the parties.
28. In the Written Statement of the OP-2 in para-3, it has been stated that OP-2 has a separate and distinct identity from that of manufacturer of the product i.e. ASUS and there is no relation of Principle and agent between ASUS and OP-2.  The product in question is HP and not ASUS as submitted by OP-2. OP-2 has submitted that the product was duly delivered by the OP-2 in a sealed box.  However, no document has been filed by them.
29. OP-1 has not disputed email communication and its response to the emails. Irrespective of terms and conditions of the vendor/ seller, an agreement between the OP-1 and OP-2 casts an inherent responsibility on the part of OP-1, who being a facilitator, to provide all necessary support services expected by the customers. These services encompass logistical assistance and grievance redressal to ensure customer satisfaction and effective resolution of the concerns raised by the complainant and the user of the e-commerce platform of OP-1. The consumer/ user/ complainant purchases through online portal trusting the services of OP-1 and has no direct interaction with the seller. The present case is not about the product liability or defect in product but liability for the product which was not delivered. The failure on the part of OP-1 in non-redressal and holding defective inquiry; non-delivery of the product by OP-2 and OP-3 tantamount to faulty and imperfect delivery of services which definitely amounts to deficiency in services.
30.   Therefore, in the facts and circumstance of the present case, we hold  OP-1, OP-2 and OP-3 jointly and severally liable to :-

1. Refund Rs.48,490/- paid by the complainant.
2. Pay interest @7% p.a. from the date of order placed with OP-1 i.e. 03/03/2019 till realization.
3. Pay a compensation of Rs.15,000/- on account of mental agony and harassment.
4. The order be complied within a period of 30 days from the date of receipt of this order.  In case of non-compliance Rs.63,490/- (Rs.48,490/-+Rs.15,000/-) shall carry interest @9% p.a. from the date of order till realization.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

(Harpreet Kaur Charya) Member

(Ashwani Kumar Mehta)                                Member

(Divya Jyoti Jaipuriar)

President