Hon’ble Mrs. Rumpa Mandal, Member.
The concise fact of the case of the Complainant is that the Complainant/Petitioner booked shoe/ Woodland out doors for men size No.05 due to urgent need for Rs.3,325/- on 31.08.2022 as per Order No.FAH4JR2303169682 with the O.P. No.1, the Office-in-charge, Flipkart Corporate Headquarter. On 02.09.2022 Complainant received the article and saw that the shoe size No.06 instead of shoe size No.05, Complainant made payment to the O.P. No.1 on 31.08.2022 (Annexure-1 & 1A being the copy of invoice). Complainant sent refund request to the O.P. No.1 on 03.09.2022 and O.P. No.1 sent reply and assured to resolve their problem by 6th September, 2022 (annexure-2 & 3 are the copy of terms and conditions and return request). Subsequently, Complainant sent further email for refund of the article on 04.09.2022, 06.09.2022, 08.09.2022 and 12.09.2022 and accordingly O.P. No.1 sent reply on the same day. On 12.09.2022 Complainant further sent email for acceptance or request on the same date O.P. No.1 sent email and illegally cancelled the request (Annexure- 8 & 9 being the copy of email). Accordingly, O.P. No.1 intentionally blocked the mobile number of the Complainant. So again Complainant sent email on 13.09.2022 (Annexure-10 is the copy of email). Lastly, Complainant sent written complaint before the O.P. No.2 on 21.09.2022 through registered post but O.P. No.2 intentionally refused the Complainant letter as well as the Complainant sent email to O.P. No.1 on 27.10.2022 but the O.Ps neither refunded the money nor did they change the article (the copy of written complaint and email are the Annexure-11, 11A & 12). The aforesaid activities of the O.Ps are deficiency in service and also unfair trade practice. Due to illegal activities of the O.Ps the Complainant sustained mental pain and agony and financial loss. The cause of action for the present case arose on 31.08.2022 when the O.Ps issued invoice and on 02.09.2022 when the O.Ps sent big size shoe and on 03.09.2022, 04.09.2022 and 05.09.2022 when O.P. No.1 sent email within short period to resolve the problem and on 21.09.2022 and 27.10.2022 when the Complainant sent written complaint before the O.P. No.2 and sent email to O.P. No.1 and still continuing. The Complainant, therefore prayed for refund of Rs.3,325/- from the OP and further order of Rs.30,000/- for mental pain and agony and deficiency in service and Rs.10,000/- towards cost of litigation.
The O.P. No.1 contested the case by filing written version wherein he denied each and every allegation of the Complainant. The positive defence case of the O.P. No.1 in short is that the present case is filed for illegal gain which is hopelessly obtaining unlawful gain and to damage the reputation of the O.P. No.1.
As per written version by O.P. No.1 stated that there is no privity of contract between the Complainant and the O.P. No.1. The O.P. No.1 is an online market place e-commerce entity which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. This O.P. No.1 does not directly or indirectly sells any products on Flipkart platform. The O.P. No.1 further stated that any kind of assurance whether in terms of specifications warranty on the products, delivery, price, discounts, promotional offers, after sale services, “return and refund” or otherwise are offered and provided by the seller of the products sold on Flipkart platform. But Flipkart is not responsible for any non-performance or breach of any contract entered in to between buyers and sellers. The O.P. No.1 received the grievance from the Complainant, the same was immediately forwarded to independent third party seller and in accordance to the information received. So, there was no deficiency in service. The OP therefore claimed that the case is liable to be dismissed with cost.
The O.P. No.2 finally did not appear. This Commission by its Order No.08 dated 08.05.23 decided to proceed with the case ex-parte against O.P. No.2.
Perused the case record and all documents submitted by the Complainant and the O.P. No.1. Heard the argument advanced by both the parties at length. The questions of fact and law involved in this case demand for ascertainment of the following points for proper adjudication of this case.
Points for Determination
- Whether the Complainant is a consumer or not?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the Complainant is entitled to get any relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The present case is filed against the seller and intermediary.
The O.P. No.2 being the seller of the product in dispute decided not to contest the case and as such it was heard ex-parte against him. The O.P. No.1 Flipkart private Limited contested the case with the principle defence that they as an intermediary have no liability in this case and as such have been wrongly impleaded as a party.
After pursing the pleadings of the parties and the evidence in the case record it transpires that it is the admitted fact that the Complainant purchased one pair of shoes.
The Complainant proved the tax invoice for purchase of the said product being the shoe/ woodland out doors for men from M/S Flipkart Private Limited of which the seller is O.P. No.2, Tech Connect Retail Pvt. Ltd., for a sum of Rs.3,325/-.
The seller did not contest the case in any manner. The document discloses that O.P. No.1 is the intermediary of the product. It is the said product was sold under e-commerce system from online sale. But the O.P. No.1 did not deny that the said return of the product was submitted within one day. Without appearance of O.P. No.1 who is the seller of the goods, the proper adjudication of the case would not have been possible. Neither the O.P. No.1 nor the O.P. No.2 denied that the product was not purchased from the Complainant. Annexure-1 & 1A duly proved that the Complainant purchased the product from the O.Ps.
Thus, after considering all aspect of the case and in view of the observation in the foregoing paragraph the Commission is of the view that the Complainant is the customer of O.Ps under the C.P. Act, 2019.
Accordingly, Point No.1 is decided in favour of the Complainant.
Point Nos. 2, 3 & 4.
All the points are very closely interlinked with each other and as such there are taken up together for brevity and convenience of discussion.
The main allegation of this case raised by Complainant is that within two days of purchase of the shoe from the O.P. No.1 & 2 the size of the shoe is reported to be big to the O.Ps and despite several representations and complaint the O.Ps did not respond to the Complainant and as such the present case is filed.
The Complainant in order to substantiate the case proved tax invoice for purchasing the product. Annexure- 2 & 3 are the copy of return request sent by the Complainant. The date of purchase of the said product is 02.09.2022. The O.P. No.1 did not deny the said fact. The O.P. No.1 claimed that the said purchase was matters of record and they accepted their return on 03.09.2022 and O.P. No.1 sent reply within 06.09.2022 and assured to resolve the size problem of the shoe.
It stands also proved that there is a size problem of the shoe but despite giving information to the O.Ps they just neglect and avoid the matter.
As regards the liability of O.P. No.2 it stands well proved that the O.P. No.2 is liable for the allegation made against them in as much as the O.P. No.2 neither made out any defence case nor did he lead any evidence against the averment made in evidence led by the Complainant.
The case record further shows that the Complainant sent written complaint to the O.P. No.2 on 21.09.2022 and on 27.10.2022 Complainant again sent email to O.P. No.1 but as such wither the product should be replaced or the money should be refunded. The OP could not prove any documents to show that the O.P. No.1 responded to the grievance of the Complainant.
The defence plea taken by the O.P. No.1 in their written version is that as per section-79 of the IT Act, 2000 the intermediary does not have any liability. The provision shall apply only if the intermediary does not initiate the transmission on does not observe due diligence while discharging its duties or the function of the intermediary is limited to providing access to a communication section-79 is not applicable here since the O.P. No.1 did not act merely to initiate the transmission or access to a communication system. On the contrary O.P. No.1 acted as a supplier of the product in dispute. It is also evident from the case record that the intermediary like the O.P. No.1 did not take due diligence while discharging his duties since they did not respond to the letter of grievance sent by Complainant goods can be purchased either from wholesaler or retailer. Nowadays even from online shopping e-commerce is an important part of sale and purchase. Online purchase is quite cheaper and scope of huge discount. So, customer are allured for online purchase.
Here in this case price has duly paid for it. A good is purchased for serving the purpose for which its purchased and here the Complainant for his urgent need purchased the shoe but the purpose is not served. So, the seller cannot escape the liabilities. But there is nothing in evidence that customer did not fulfil his obligation. So, the Complainant has right to get the service of the goods. So the intermediary and the seller are jointly and severally liable.
Having assessed the entire case record and in view of the discussion made in the foregoing paragraph this Commission comes to the opinion that there is deficiency in service by the O.P. No.1 & 2 in regard to failure to change the product. So, the Complainant is entitled to get the relief prayed for and the liability of O.P. No.1 & 2 is jointly and severally in the instant case.
Accordingly, Point Nos. 2,3 & 4 are decided against the O.Ps.
In the result the complaint case succeeds on contest against O.P. No.1 and ex-parte against O.P. No.2 with cost.
Hence, it is
Ordered
That the complaint case No. CC/53/2022 be and the same is allowed on contest against O.P. No.1 and ex-parte against O.P. No.2 with cost of Rs.8,000/-. The O.P. No.1 & 2 are jointly and/or severally liable.
The Complainant do get an award for a sum of Rs.3,325/- being the actual price of the defective product, Rs.15,000/- towards deficiency in service and Rs.8,000/- towards litigation cost.
The O.P. No.1 & 2 are directed to pay the total sum of Rs.26,325/- (Rupees Twenty Six Thousand Three Hundred Twenty Five) only jointly and/or severally within 30 (thirty) days from the date of passing the Final Order failing which the Complainant shall be entitled to get interest @ 8% per annum on the awarded money from the date of passing the order till the date of realisation.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available on www.confonet.nic.in.
Dictated and corrected by me.
