DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. NO-789/2016
Date of Filing: Date of Admission:- Date of Disposal:
30.12.2016 08.01.2017 08.04.2019
Complainant :- Sri. Avishek Shaw,
S/o Sri. Rabishankar Shaw, H/O- 1/2, A.K. Road,
Bachaspati Para, P.O.-Talpukur, P.S.-Titagarh,
District-North 24 Parganas, Kolkata-700 123.
=Vs.=
Opposite Parties:- 1. Flipkart Internet Private Limited,
Vaishnavi Summit, Ground Floor, 7th Main,
80 Feet Road, 3rd Block, Koramangla,
Industrial Layout, Bangalore-560034.
2. Shreyash Retail Private Limited,
E-29, Ring Road, South Extension-II, Opp. Park,
New Delhi, South Delhi-110049.
3. E-Kart Logistics, 4/2, S.N. Banerjee Road,
Barrackpore Road, Ground Floor,
P.O. & P.S.-Barrackpore, Kolkata-700120.
:- Sri. Bankim Chandra Chattopadhyay…….President.
P R E S E N T- :- Smt. Silpi Majumder………………………Member.
:- Smt. Monisha Shaw …………………………Member.
Final Order
This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not refund the amount as paid by him towards purchasing of one Apple I Phone till filing of this complaint.
The brief fact of the case of the Complainant is that being impressed with online shopping maestro, namely Flipkart through Internet, placed an order for purchasing of one Apple I Phone 6 Plus (space Grey, 16 GB) to the OP-1 from the residence of the Complainant. The OP-1 is engaged in marketing/selling of the item for which the order was placed on 19.10.2016 at a consideration price of Rs.39,999/- subject to the condition for payment on delivery. The OP-3 is the authorized agent of the OP-1 for delivery of the item to the buyer and collection of payment on delivery on behalf of the OP-1 and the OP-2 is the authorized selling agent promoted by the OP-1 for raising invoice on behalf of the OP-1. The OP-1 has its Regional Office/Branch in the name of STA Car Service 5 ratings located at near Domestic Airport (old complex) (office), Kolkata, Airport, West Bengal. The OP-3 delivered a packet duly sealed with plastic cover on 25.10.2016 on the road in front of one of the SBI branches nearby the house of the Complainant and on demand a sum of Rs.39,999/- was paid on delivery (COD) and the delivery personnel went along with money by handing over the invoice raised by the OP-2 and the Complainant had to put his signature on the Mobile Application of the delivery personnel of the OP-3.
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It is surprising as well as unfortunate that after opening the plastic packet containing the Apple I phone 6 Plus the Complainant became astonished that there was no mobile set inside the packet including the accessories save and except some scrap papers. Immediately the Complainant brought the unwarranted incident firstly to the office personnel by attending the office of the OP-3 and thereafter to the OP-1 over telephone. The executive of the OP-1 assured that as early as possible they will look into the matter very seriously and within 24 hours they will try to mitigate the problem, but till filing of this complaint no step have yet been taken by the OPs. By issuing a letter the Complainant had prayed for refund of the amount as paid by him through e-mail, but no result yielded. According to the Complainant such action of the OPs can be termed as deficiency in service as well as unfair trade practice. The Complainant has also lodged GDE being no-1171 dated 15.11.2016 with the Titagarh Police Station, but no step has been taken by them. Legal notice was also issued to the OP-1 on 30.11.2016, which was received by the said OP on 03.12.2016, but the OP-1 kept themselves silent over this matter, no reply was made. Having no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to refund him an amount of Rs.39,999/- as paid by him towards the cost of the mobile along with interest, to pay Rs.70,000/- as compensation due to harassment and mental agony and litigation cost of Rs.25,000/- to him.
The OP-1 has filed written version to contest the complaint stating that this company is engaged in providing trading/selling facility over the internet through its website. This OP used to provide services to the sellers and buyers of the product to facilitate the transactions, electronic commerce for various goods by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobile, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics. The OP-1 is an electronic platform which acts as an intermediary to facilitate sale 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 and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart platform. The business of the OP-1 falls within the definition of an intermediary u/S 2(1)(w) of the Information Technology Act, 2000 which is as follows-
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“intermediary with respect to any particular electronic record, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, webhosting service providers, internet service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.”
The OP-1 has further contended that the Complainant does not fall within the category of consumer of this OP as the OP-1 is neither a service provider nor a trader and moreover due to non-existence of any privity of contract by and between the Complainant and the OP-1 the OP-1 has been made party to this Proceeding wrongly, hence this complaint suffers from mis-joinder of party. According to the OP-1 this complaint is filed with a view to grab some money from this OP through an illegal manner, which the Complainant is not at all entitled to get. On the Flipkart platform it is clearly mentioned that all the contractual/commercial terms are offered by and agreed to between the buyer and the seller alone. The contractual/commercial terms include without limitation price, shipping cost, payment method, payment terms, date, period and mode of delivery, warranties related to products and services. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such contractual/commercial terms between the buyer and the seller. This term of use is clearly shown that the OP-1 has not been involved in any unfair trade practices. The Complainant has purchased the product from one of the sellers listed on the Flipkart platform, which is evident from the copy of seller tax invoice. This OP is not involved in the entire transaction executed between the seller and the Complainant. As there is no privity of contract by and between the Complainant and the OP-1, hence the OP-1 does not render any liability arising out of such contract. The grievance of the Complainant is that an empty parcel was delivered instead of the ordered product to him. The OP-1 being a mere an online web portal operator who facilitates transaction between the buyers/visitors of the website and the registered seller and the OP-1 being mere an intermediary and not the seller of the product sold to the Complainant, in no way, assumes liability for any deficiency with regard to any delivery of the goods, if any. Hence in view of the above there is no cause of action arose against this OP. Moreover the Complainant has intentionally concealed the material facts from this Ld. Forum for getting himself enriched through illegal means. The Complainant has concealed that he is a habitual abuser of refund policy offered by the registered sellers on the website of this OP. After receiving information from the Complainant about receipt of the alleged empty parcel an internal investigation was conducted and it was found that the Complainant has a long history of demanding refund for his each and every order on one pretext or other.
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Previously the Complainant placed orders for many products through web portal of the OP-1 and each time demanded refund of the money making complaint about missing of the product, miss shipment, defective product etc, hence considering the Complainant as fraud user, the Complainant was blacklisted by the OP-1 for placing any new order as well as finding his suspicious, his refund request for the current order was also cancelled by the seller for the same reason. In view of the above the OP-1 there is no deficiency in service on the part of this OP and by no stretch of imagination it can be said that the OP-1 is involved in any unfair trade practices. Therefor the Complainant is not entitled to get any relief as sought for. Prayer is made by the OP-1 for dismissal of the complaint.
The OP-2 has contested the complaint by filing written version contending that this OP is carrying business of sale of goods manufactured/produced by others. This OP is the registered seller on the website ‘flipkart.com’ and sells products of others though the website. The OP-2 has acquired good market reputation for its range of products offered and for its exceptional customer support. This OP is not engaged in sale of any goods manufactured or produced by its own. This complaint is frivolous, false and vexatious as the same is filed with malafide intention. As no cause of action has arisen against this OP, hence this complaint is liable to be dismissed. This complaint has been filed by the Complainant with a view to extort some money from this OP through an illegal manner and also to defame the OP-2. The OP-2 delivered the correct product to the Complainant as hence allegation does not sustain about receiving any empty parcel. So the relief as sought for in the petition of complaint is unreasonable in law. Prayer is made by the OP-2 for dismissal of the complaint.
The petition of complaint has been contested by the OP-3 by filing written version contending that this OP used to act as a logistic partner to facilitate logistic transactions between the independent third party sellers and the independent end customers. The independent third party sellers used the online platform to list, advertise and offer to sell their products to the users visit the online platform. Once a buyer accepts the offer of the products made by the third party seller on the online platform, the seller is intimated electronically and is required to ensure that the produts are made available and delivered. The OP-3 provides the logistic services by picking up the seal packed product from the seller and delivering it to the buyer in intact condition as it was picked from the seller. The OP-3 has no liability for delivery of any faulty product, wrong product, empty parcel or otherwise. This OP used to deliver the sealed packet to the buyers without altering/opening/damaging/tampering the box. The Complainant does not fall within the ambit of consumer of the OP-3 as the OP-3 is neither a trader nor a service provider for the Complainant, the Complainant cannot be the consumer of this OP and moreover as there is no privity of contract by and between the Complainant and the OP-3 the Complainant has mistakenly made this OP as the party in this proceeding. Hence this complaint suffers from mis-joinder of party.
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On this score alone this complaint is liable to be dismissed against this OP. As there is deficiency in service on this OP, this OP is not liable to pay any amount towards the relief as sought for.
The Complainant has adduced evidence on affidavit, the Complainant was cross-examined by the OP-1, 2 & 3 separately by way of questionnaire and the Complainant replied the same respectively on affidavit. The OP-2 has adduced evidence on affidavit. The Complainant, the OP-1 and 2 and 3 have filed their respective BNAs.
We have carefully perused the record, documents as annexed by the contesting parties, BNAs and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that the admittedly the Complainant placed an order for Apple i-phone through website before the OP-1, it was scheduled that the consideration for the said mobile will be paid on delivery by the delivery personnel entrusted by the OPs, specifications of the questioned article was also placed by the Complainant, the OP-3 delivered one sealed packet to the Complainant and upon receipt of the same the Complainant paid a sum of Rs.39,999/- to the OP-3 as per terms and conditions of such transaction. The allegation of the Complainant is that after opening of the said sealed box the Complainant found that it was simple an empty box, no mobile is there. Then and there he contacted with the OPs over telephone, assurance were given by the OPs for redressal of his grievance verbally. It is stated by the Complainant several written correspondences were made through e-mail with the OP-1, to whom the consideration money was given, though it was intimated that within three days step will be given, but actually till filing of this complaint no steps were taken by the OPs to resolve the dispute, though the Complainant paid the entire consideration amount as per the terms and the conditions. The contentions of the OPs are that the Complainant is not a consumer of them as no service was hired by him from them and for this reason the Complainant is not entitled to get any relief as prayed for from the OPs. The OPs have prayed for dismissal of the complaint.
Therefore we are to see as to whether the Complainant can be termed as consumer of the OPs or not and he is at all entitled to get any relief as sought for from the OPs or not.
Admittedly the Complainant paid the entire consideration amount to the OP-1 for the questioned mobile set, which denotes that the Complainant has availed of service from the OP-1 by making payment of due consideration amount. As the Complainant placed an order for the said mobile through website of the OP-1, hence privity of contract has already been occurred by and between the Complainant and the OP-1 and the OP-1 cannot ignored the said privity of contract.
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The OP-1 has stated due to no privity of contract by and between the Complainant and the OP-1, the OP-1 is not under any obligation to redress the grievance of the Complainant. In our view if that be so, then on what strength the OP-1 received that entire consideration amount of the said mobile from the Complainant inspite of non-existence of any privity of contract. Therefore as the privity of contract has already been occurred, hence the OP-1 is under the obligation to discharge its contractual liability. Therefore the Complainant is a consumer of the OP-1.
In respect of the OP-2 we are to say that the invoice is issued on its behalf, if there is no privity of contract by and between the Complainant and the OP-2, then on which basis the said invoice was issued in favour of the Complainant for the alleged mobile set. Hence the OP-2 being the service provider, the Complainant is a consumer of the OP-2.
Regarding the OP-3, who delivered the questioned mobile set to the Complainant, has acted as an agent of the OP-1 as he was entrusted for such job by the OP-1. The OP-3 used to deliver the product to the customers as per the orders of the OP-1 and 2 in the same condition which he used to receive from his masters/employer. There are several judgments passed by the Hon’ble Superior Courts, wherein it has been observed that due to laches on the part of the agent, the principle will be liable. It is true that the OP-3 cannot avoid that the Complainant is not a consumer due to lack of privity of contract by and between the Complainant and the OP-3 and it is also the contention of the OP-3 that he is not at all service provider of the Complainant. But we cannot take such plea on the ground that as and when the OP-3 was entrusted by the OP-1 to deliver the article to the respective customers, against such delivery/service he is used to get salary from his employer. Therefore of course the OP-3 being the service provider of the Complainant as against delivery of the article he received due consideration from his employer and the said consideration was paid by this Complainant either in part or in full whatever it may be. Therefore the OP-3 being the service provider of the Complainant, the Complainant can be termed as the consumer of the OP-3.
In view of the above discussion it can safely be said that the Complainant is a consumer of the OP-1, 2 and 3.
Now we are to adjudicate as to whether the Complainant is entitled to get relief as sought for or not. Admittedly upon receipt of the sealed box from the OP-3, the Complainant paid the entire amount to him for Rs.39,999/- as per the commitment as well as the terms and conditions of the order placed by him to the OP-1. But according to the Complainant after opening the box he found that no mobile is there, rather the box was full of some scrap papers instead of mobile set.
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He contacted with the OPs over telephone then and there and assurance were given for redressal of his grievance. But as the OPs did not take any step to this context, written correspondences were made by him through e-mail and the Complainant was intimated by the OP-1 and 2 that within three days the dispute will be mitigated. But since then no steps were taken by the OPs till filing of this complaint, hence finding no other alternative this complaint is initiated by the Complainant for redressal of his grievance. On time and again the Complainant prayed for refund of the amount, but to effect. In our view as the Complainant paid the entire consideration amount of Rs.39,999/- to the OP-1 immediately after receipt of the sealed box and as the Complainant got an empty box having no mobile set, hence the Complainant is very much entitled to get refund of the paid amount along with interest. As the OP-1 and 2 are enjoying the said amount since 25.10.2016, hence the Complainant is entitled to get interest on the said amount since 25.10.2016.
In the written version the OP-1 has alleged that the name of this Complainant was blacklisted as the Complainant used to claim refund on each and every occasions/placement of orders. In this context we are to say that as and when the name of the Complainant has been blacklisted by the OP-1, then what prompted the OP-1 to accept the instant order placed by the Complainant, it was the duty of the OP-1 to cancel the order of the Complainant at the very outset. But once the order has been accepted by the OP-1 and moreover after receipt of the entire consideration amount from the Complainant, the OP-1 is estopped to raise such allegation against the Complainant in view of the ‘Principle of Estoppel’. In our opinion the OP-1 has no authority to cancel the prayer for refund of the amount made by the Complainant on the ground that the OP-1 cannot grab the amount without delivery of the product, for which order was placed by the Complainant.
As the Complainant has successfully proved his case by adducing cogent evidence and documents, hence the complaint succeeds. The Complainant has also proved the deficiency in service of the OP-1 and 2 by adducing documentary evidence, for which the Complainant is entitled to get compensation due to unnecessary harassment, mental agony and pain. As the OP-1 and 2 did not bother to take steps for redressal of his grievance before coming to the Court of Law and admittedly by filing this complaint the Complainant has to incur some expenses, hence in our considered view the Complainant is also entitled to get litigation cost from the OP-1 and 2.
Going by the foregoing discussion hence it is ordered that the complaint is allowed on contest against the OP-1 and 2 with cost and dismissed against the OP-3 on contest without any cost.
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The OP-1 and 2 shall refund the amount of Rs.39,999/- to the Complainant either jointly or severally along with interest @6% p.a. for the period from 25.10.2016 till payment of the entire realization within 45 days from the date of passing this judgment, in default the interest component will be @10% p.a. instead of 6% p.a. over the said amount. The OP-1 and 2 are also directed to pay either jointly or severally compensation to the tune of Rs.5,000/- and litigation cost of Rs.3,000/- to the Complainant within 45 days from the date of passing this judgment, in default the Complainant will be at liberty to put the entire order in execution as per provision of Law.
Let plain copy of this judgment be given to the parties free of cost as per the CPR, 2005.
Member Member President
Dictated & Corrected by
