BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.172/2018.
Date of instt.13.06.2018.
Date of Decision: 24.12.2019
Sandeep Saini son of Pyare Lal Saini resident of Professor Colony, near State Bank of India, Ratia Road, Fatehabad, Tehsil & District Fatehabad.
..Complainant.
Versus
- Flipcart Internet Pvt. Ltd. Company having its registered office at Ozone Manay Tech Park, #56/18 & 55/09, 7th Floor, Garvebhavipalya, Hosur Road, Banglore-560068(Karnatka) through its Managing Director;
- Flipcart Online Services Pvt. Ltd. Company having its regional office at A 55-12, Street No. 55, Chakkerpur, Sector-28, Gurugram-122022(Haryana) through its Regional Manager;
- PhonePe Internet Private Ltd. a25 Mohan Cooperative Industrial Area New Delhi South Delhi DL 110044 IN through its Managing Director.
..Respondents/OPs.
Complaint under Section 12 of Consumer Protection Act, 1986.
Before: Sh.Raghbir Singh, President.
Sh. Jasvinder Singh, Member.
Argued by: Sh. Manoj Saneja, Advocate for the complainant.
Sh. Yogesh Gupta, Advocate for the OPs No. 1 & 2.
Op No. 3 already exparte.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the Ops with the averments that on 21.09.2017 & 22.09.2017 he placed an order for purchase of two pieces of MI Company mobile handsets and one piece of Samsung company on the online website of OP No. 1 & 2 and for which the complainant made an online payment of Rs.9,899/- dated 21.09.2017, Rs. 5391/- and Rs.9,899/- dated 22.07.2017 respectively. Therefore a total amount of Rs. 25,289/- through online of OP No. 3 who is subsidiary company of OP No. 1 & 2 was made and the said payment was successful debited from the account of OP No. 3 to the account of OP No. 1 & 2 through the debit card of his cousin brother namely Parmod of State Bank of India. Therefore, the complainant is consumer of the OPs as defined under the Consumer Protection Act 1986.
2. It is further submitted that the OPs no. 1 & 2 is on-line e-commerce company who deals in sale of electronic items through online service and OP No. 3 operates as a subsidiary company of OP No. 1 & 2 and collects the online payment of items sold by OP No. 1 & 2.
3. It is further submitted that after this the complainant waited for one month for receiving the delivery of said mobiles and ultimately contacted with OP No. 1 & 2 and it was replied by them that no amount has been received by them for the said mobiles and advised him to contact OP No. 3 in this regard. The complainant also sent electronic messages on 04.02.2018, 08.02.2018, 12.02.2018 and 18.02.2018 respectively in this regard and OP No. 1 & 2 sent reply on 13.04.2018 vide which it was assured to respond within 24-28 working hours. However the OPs have not responded till date. It is further submitted that meanwhile the State Bank of India made a requests regarding refund of the online purchase cancelled transaction on 16.02.2018 to OP No. 1 & 2 to refund the payment of their customer. Thereafter many e-mail requests were sent to OP No. 2 but they did not pay heed to the request of complainant. The complainant has been repeatedly asking OP No. 1 & 2 for refund of payment of Rs.25,889/- or send the mobile handsets to the complainant but all in vain. It is further submitted that the above said act on the part of OPs amounts to deficiency in rendering service to the complainant and as such the complainant is also entitled for compensation. The complainant has further prayed that the present complaint may be accepted and the OPs may be directed for making a payment of Rs.25,289/- along with interest from the date of premium till the date of actual payment or send all the mobile handsets as described in the complaint. The complainant has also prayed for an award of Rs.50,000/- as compensation in his favour. Hence, the present complaint.
3. On being served, the OPs No. 1 & 2 appeared through their counsel and resisted the complaint by filing a joint written statement wherein various preliminary objections with regard to maintainability, concealment of true and correct facts and cause of action etc., have been raised.
4. In reply on merits, it is submitted that the answering opposite party provides online market place to the seller and buyers of products to facilitate the transactions, electronic commerce for various goods between the respective buyers and sellers. The Flipcart platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and buyers. The answering opposite party does not directly or indirectly sells any products on flipcart platform. Rather the products are sold by third party sellers. In the present complaint also the actual seller of the product is a third party seller and not the answering OPs. Therefore, the complainant has wrongly arrayed the answering OPs in the present complaint. It is further submitted that that complainant does not fall under the category of consumer of the answering opposite party under the consumer protection act as the answering OP is neither the trader nor a service provider. No privity of contract exists between the complainant and the answering OPs. It is also submitted that the products in question were delivered to the complainant in the month of September 2017.
5. All the allegations leveled in the complaint against the OPs have been denied. It has been further submitted that there is no deficiency on the part of answering opposite party in rendering service to the complainant and as such the present complaint is without any merits and the same is liable to be dismissed.
6. Despite proper service, OP no. 3 did not appear before this Forum and as such he was proceeded exparte vide order dated 16.07.2018.
7. Learned counsel for the complainant tendered in evidence affidavit of the complainant as Ex. PW-1/A alongwith documents as Annexure A-1 to A-12 and closed the evidence of the complainant. On the other hand, the learned counsel for the OP No. 1 & 2 tendered in evidence affidavit of Satyajeet Bhattacharya as Annexure R-1 and closed the evidence of the OPs No. 1 & 2.
8. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the documents placed on record.
9. It is the case of the complainant that OP No. 1 & 2 is an online e-commerce company who deals in sale of electronic items through online service and OP No. 3 operates as subsidiary company of OP No. 1 & 2 and collects the online payment of items sold by OP No. 1 & 2.
10. It is further the case of the complainant that on 21.09.2017 & 22.09.2017, the complainant placed an order for purchase of two pieces of MI Company mobile handsets and one piece of mobile handset of Samsung company and for which he made a total payment of Rs.25,289/- to the OPs through online of OP No. 3. After making payment for purchase of the above said items, the complainant did not receive the delivery even after a lapse of one month. Therefore, the complainant contacted OP No. 1 & 2 and it was replied by them that they have not receive the payment for purchase of the above said mobile handsets and advised the complainant to contact OP No. 3 in this regard. Thereafter, the complainant sent electronic messages on 04.02.2018, 08.02.2018, 12.02.2018 & 18.02.2018 and it was replied by OP No. 1 & 2 on 13.04.2018 that they will respond within 24-28 working hours. However no response was received till date. Thereafter on 17.03.2018, 21.03.2018, 26.03.2018, 30.03.2018 & 12.04.2018 emails were sent to OP No. 1 & 2 but all in vain. It is further the case of the complainant that the above said act on the part of OPs amounts to deficiency on their part in rendering service to the complainant and as such the complainant is entitled for refund of amount of Rs.25,889/- alongwith compensation.
11. On the other hand, it is the case of the OP No. 1 & 2 that they provide online market place/platform to the sellers and buyers of the products to facilitate the transactions. The Flipcart platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and customers. The OPs did not directly or indirectly sale any products on Flipcart platform. In the present case, the actual seller of the product is the third party seller and not the OP No. 1 & 2. Any kind of assurance in terms of warranty on products, price, discounts and after sale services or otherwise are offered and provided by the manufacturer of the products. Therefore, OP No. 1 & 2 are neither the trader nor the service provider and no privity of contract between the complainant and OP No. 1 and 2 exists.
12. After examining the documents placed on record and pleadings of both the parties, we are of the considered opinion that the above said contention of the OP No. 1 & 2 is not tenable. The present case does not relate to defect or manufacturing defect in the product whereas it is the case of not delivering the product by OPs after receiving the payment of the same. From perusal of Annexure A-6, it is evident that an amount of Rs.9,899/- was credited in the account of OP No. 1 and 2 on 22.9.2017 by Sandeep. From perusal of Annexure A-7, it is revealed that an amount of Rs.9,899/- was credited in the account of OP No. 1 & 2 by customer namely Sandeep. From the perusal of Annexure A-8, it is evident that an amount of Rs.5,391/- was credited in the account of OP No. 1 & 2 by Sandeep on 21.09.2017. From perusal of Annexure A-5, it is evident that OP No. 1 & 2 had assured to the complainant that a response will be given within 24-28 hours regarding his complaint. From Annexure A-1 to A-4, it is also evident that several requests were made by the complainant to OP No. 1 & 2 regarding his grievance but nothing has been done by the OPs.
13. It is also pertinent to mention here that in the written statement in Para No. 14, it has been submitted by the OP No. 1 & 2 that the products have already been delivered to the complainant by the OPs in the month of September, 2017. However, the OPs have not placed on record any evidence or document to prove the above said contentions.
14. In view of the aforesaid discussion, we are of the considered opinion that the complainant has been able to prove deficiency on the part of OPs in rendering service to him. The present complaint is accordingly allowed and the OPs are directed for making a payment of Rs.25,289/- to the complainant alongwith interest at the rate of 8% per annum from 22.09.2017 till the date of realization. The OPs are further directed for making a payment of Rs.5,000/- to the complainant as litigation charges and compensation on account of mental agony and physical harassment. The present order be complied within a period of 45 days from the date of receipt of this order. A copy of this order be furnished to both the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
Announced in open Forum:
Dt.24.12.2019.
(Jasvinder Singh) (Raghbir Singh)
Member President DCDRF, Fatehabad.
