Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 715
Instituted on : 22.12.2022
Decided on : 10.05.2023
Rajesh Arora age 47 years, s/o Sh. Ramesh Kumar r/o 1198c/14, Gali no.2 Mahabir Colony, Rohtak-124001.
.......................Complainant.
Vs.
- Flipkart Internet Private Limited Building Alyssa, Begonia Clove Embassy Tech Village, outer ring road Devarabeesanahalli Village Bengaluru, Pin Code 560103, Karnataka.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh.Nishant Sikri Advocate for the complainant.
Sh.Lalit Sharma, Advocate for the opposite party.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case, as per the complainant are that he placed an order No.OD225707961786069000 and paid an amount of Rs. 2098 for two 6kg packets of Surf Excel Brand on 11.08.2022. The product chosen by the complainant was of Surf Excel which is a worldwide famous brand. The complainant had also placed the order for an Ariel surf along with this order which he didn't receive and cancelled it on 17.08.2022. At the time of delivery of the 2 Surf Excel items on 17.08.2022, the complainant was shocked to see that the surfs were not genuine and they were completely fake and defective. Even the branding was different. This surf could not be used at all and hence, the complainant had to get it either replaced or refunded. The complainant immediately informed the opposite party about the same through email on their official website as well as through calls to the customer care department. Complainant placed a request either to replace or refund his product, but then he was straightaway informed that he could only order a replacement for this product and not a refund. The complainant requested them to replace the products and accordingly he received the replacement packets on 27.08.2022. He duly opened the products in front of the Flipkart delivery agent but these packets were also fake and not of Surf Excel brand. These products were completely local and inferior and unusable in quality. The complainant immediately informed the customer care again by calling and he was informed that the opposite party cannot and will not do anything. The delivery agent also refused to provide any assistance or service at all. Despite repeated requests of the complainant, opposite party failed to replace the product or refund it. As such, there is a huge deficiency in services on part of opposite party. Hence this complaint and it is prayed that opposite may kindly be directed to pay the invoice amount of the two fake surf packets which they didn't refund/replace i.e. Rs. 2098/- along with interest @ 24% p.m. from the date of purchase and also to pay an amount of Rs. 1,00,000/- as compensation on account of mental pain & harassment and Rs.100000/- as litigation expenses to the complainant.
2. After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that opposite party is online electronic platform which acts as an intermediary to facilitate safe transactions between independent third party sellers and independent end customers. The independent third-party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyers who visit the Flipkart Platform. Once a buyer accepts the offer of sale of the products made by the third-party seller on the Flipkart Platform, the seller is intimated electronically. The third-party seller is required to ensure that the products are made available and delivered in accordance with the delivery terms and as per the terms of sale displayed by the seller on the Flipkart Platform. It is further submitted that these sellers are separate entities being controlled and managed by different persons/stakeholders. The answering opposite party does not directly or indirectly sell any product on the Flipkart Platform. Rather, all the products on the Flipkart Platform are sold by third party sellers, who avail the online marketplace services provided by the answering opposite party, on terms decided by the respective sellers only. In the instant complaint also, it can be evidenced from the invoice that the actual seller of the product is a third-party Seller (which is not impleaded as a party) and not the answering opposite party. Hence, the request for replacement/refund made by the complainant cannot be fulfilled by the answering opposite party. There is no privity of contract between the complainant and the answering opposite party. Hence, the answering opposite party doesn't render any liability arising out of such a contract. From perusal of the present complaint it transpires that allegedly a wrong and fake product was delivered to the complainant. Hence the grievance of the complainant should have been only against the Seller of the product. Moreover, the answering opposite party has no knowledge whether the original and intact product was delivered to the complainant or not. The complainant was informed that the seller is ready to replace the product and on 27.08.2022, a new and original product was delivered to the complainant by seller. Thereafter, the complainant never contacted the answering opposite party for the alleged issue. There is no deficiency in service on the part of answering opposite party and opposite party prayed for dismissal of complaint with costs.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C14 and has closed his evidence on dated 14.03.2023. Ld. counsel has also tendered document i.e. Pen Drive Ex.C15 in additional evidence and closed his evidence on 08.05.2023. Ld. counsel for the opposite party made a statement that reply already filed on its behalf be read in evidence, tendered document Ex.RW1/A and closed his evidence on 05.04.2023.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per tax invoice Ex.C2, complainant placed an order for purchase of two six kg. packets of Surf Excel Matic on dated 11.08.2022 and paid an amount of Rs.2098/- for the same. As per order details Ex.C3, the same was delivered on 17.08.2022. As per order details Ex.C5 & Ex.C6 a replacement order was made by the complainant. As per chat Ex.C7 to Ex.C10 complainant has submitted that he has received a wrong and fake product. As per Ex.C11, complainant has submitted that he has received wrong product back to back and he wanted refund of the product. As per Ex.C14, complainant has submitted that he had ordered surf excel but got another powder in Ariel box which is not washing powder. Hence from the documents placed on record it is proved that at the time of delivery of the 2 Surf Excel items on 17.08.2022, the complainant came to know that the product was completely fake and defective. Complainant placed a replacement request and accordingly received the replacement packets on 27.08.2022 but this time also the packets were fake and not of Surf Excel brand. These products were of completely local and inferior and unusable in quality. Hence it is proved that local and inferior quality products were sent by the opposite party. The contention of the opposite party in its written statement is that the seller has not been impleaded as necessary party. But in the present case, opposite party itself has not disclosed the address of seller despite the fact that the same was within the knowledge of opposite party as the opposite party itself provides platform to the sellers to sale their product on the website of company. Moreover, no action has been taken by the opposite party against the seller. We have also perused the Pen drive Ex.C15, as per which the sealed product was opened in the presence of the delivery boy and it is apparent from the products/packet, that logo of Ariel is only printed on the top of box but no logo is printed on any of the packets kept in the alleged box. Hence a local and inferior quality product was delivered by the opposite party. As such it is only the responsibility of the opposite party either to replace the product or to refund the price of product and not of the seller. Moreover, as per the policy of flipkart mentioned on the website of company www.flipkart.com, “Free replacement will be provided within 7 days if the product is delivered in defective/damaged condition or different from the ordered item”. But in the present case neither any replacement with original product has been done nor the refund has been made to the complainant. Hence there is deficiency in service on the part of opposite party and opposite party is liable to compensate the complainant.
7. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party to refund the amount of product i.e. Rs.2098/-(Rupees two thousand and ninety eight only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 22.12.2022 till its realization and shall also pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
10.05.2023.
.....................................................
Nagender Singh Kadian, President
..........................................
Tripti Pannu, Member
……………………………….
Vijender Singh, Member
