The titled complainant has filed the present complaint against the titled opposite parties (the OP1 - Flipkart e-Platform for sale-purchase of almost all varieties of consumer-products; the OP2–the herein vendor having sold/supplied the wrong product, one other than that ordered on-line; & the OP3–the logistics company delivering the sold product) upon getting aggrieved at their hands on account of their having delivered a totally different product other than that ordered on-line and in turn further infringing his consumer rights through an exhibit/open display of unfair trade practices vide a totally non-caring attitude cum non-resolve of the related dispute till filing of this complaint.
2. The complainant on 19.01.2022 had placed the on-line purchase-order through the OP1 e-Commerce Co for one RODE NT1 Kit-Microphone @ Rs.24,953/- (Ex.C1) upon the OP2 Vendor Co., on COD (Cash On Delivery) basis delivered by the OP3 Logistics/Courier Service Co., who had on 23.01.2022 delivered a totally different product namely: WRIGHT (WR-800) Microphone (Ex.C4) with Laptop AC Power Cable and SM6 Snock Mount with Pop Filter along with the Invoice billing the actually ordered product. The complainant did video-graph the unwrapping of (Ex.C7) the delivered product in front of the delivery-boy but he refused to take it back till the matter gets reported to the co.'s customer care. The complainant reported the matter, received the queries (Ex.C5) and has been continuously/desperately contacting the OP1 & the OP2 for replacement/ refund etc and also got the legal notice (Ex.C2) served upon (Ex.C3) the OP-s on 22.02.2022 and finally the present complaint accompanied with affidavit (Ex.CW1/A) + Ex.C6 E-mails and the above exhibits in evidence along with rejoinders and written arguments seeking delivery of the product or refund besides Rs.50,000/- as the matching compensation/litigation expenses, in the interest of justice.
3. The OP No.1 FLIPKART in response to the commission’s summons appeared through their counsel and filed the written reply stating therein the preliminary as well as the other (on merits) objections as: At its very introductory, the OP1 pleads to be deemed as having denied/disputed all statements, allegations, bereavements n submissions contained in the complaint except those specifically admitted. Then proceeds narration of its conceptual introductory aspects comprised in 'thirteen' paragraphs (nos.5 to 17) of its preliminary submissions. (Sic!). We have duly seen and noted the contents of these paragraphs and will be perusing/referring these in our present adjudication as when and wheresoever, found necessary. The OP1's preliminary objection(s) have been that the complainant has suppressed the true and material facts in his attempt to mislead the commission. The product was purchased/sold by the independent third party (the OP2) and delivered by the OP3 Logistic Service Provider and as such the OP1 can neither ascertain authenticity of the transaction nor can be held liable/responsible for sale/delivery of the wrong product.
4. Further, the OP1 upon inquiry has found that the complainant has been a habitual abuser of the seller's product-return policy and has thus been blacklisted for future-use/purchase at the OP1 e-Platform and the same has been duly conveyed to him. Lastly, the OP1FLIPKART has claimed that the instant transactional dispute has arisen between the OP2 vendor and the complainant vendee and thus the OP1 has not been liable to provide any sort of relief to the complainant. On merits, the OP1 Co. has responded/reacted on similar lines/grounds and have shrugged-off transaction-responsibility/product-warranty/legal-liability of sale-purchase conduct at their e-Platform (Flipkart). Lastly, the OP1 e-Co. Flipkart have produced Affidavit (Ex.OP1/1) of Ms.Sanchi Chabra its Authorized Signatory along with a copy (Ex.OP1/2) of the G.O.I. Press Note No 3 (2016 Series) – Guidelines for FDI (Foreign Direct Investment) on E-commerce & copy (Ex.OP1/3) of Flipkart Terms of Use seeking dismissal of the present complaint against themselves (the OP1FLIPKART).
5. Similarly, the OP No.2 Vendor Co. appeared before the commission upon notice through its counsel and filed its written statement raising therein its objections as:
6. Having first introduced itself as the one Gurgaon based company as duly Registered Reseller on Flipkart.Com Website engaged in selling of quality products of manufacturers to buyers on the e-commerce sites. The OP2 vendors claim to have acquired good market reputation for its range of products accompanied with exceptional customer support etc. The present complaint has been addressed as an abuse of the due process of law as the complainant has not come to the court with clean hands and has suppressed the material facts to mislead the commission. The OP2 has not been a manufacturer and simply resells the manufacturers' products by sending them data/information through electronic means and who in turn dispatch the ordered goods etc., to the buyers. Thus, the complaint is bad for non-joining of the necessary parties. Moreover, the complainant alleges fraud and as such the commission lacks the appropriate jurisdiction to put the same on trial vide the summary procedure prescribed under the herein applicable statute.
7. The OP2 vendor has put forth its reply in denial, on merits, on similar lines and have finally sought dismissal of the complaint by filing the mandatory affidavit of Mr.Rajeev Kumar Dhawan (Ex.OP2/A) sans any document, in evidence.
8. Similarly, the OP No.3 Logistic Co. appeared before the commission upon notice through its counsel and filed its written statement raising therein its objections as: the complaint has been addressed by the OP3 as a concocted story and the denial-reply has been placed forth in similar tones and frequencies qua the replies by the OP1 and the OP2 irrespective of the fact that no relief has been sought by the complainant against the OP3 Co., being the courier/
logistic service providers, only. To prove the version of OP No.3 affidavit of Mr.Pradeep Reddy Ex.OP-3/1 filed.
9. We have examined the available documents/evidence on the records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference on account of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsel/representative for the respective litigants. We find that the present dispute has arisen on account of the impugned but admitted ‘delivery’ of one wrong product totally different to that ordered by the complainant. It is not understood as to how the different Brand Product can be delivered unintentionally, by mistake, in place of ordered one and how can the Flipkart Co., afford to get it delivered at the Gurdaspur destination through a vendor based at Gurgaon of another far-off Manufacturer sans product-liability. However, the Flipkart services have failed to make it feasible through its participating vendor. People buy products displayed on the Flipkart Site in the good name of the Flipkart and not in the name of the vendors/sellers displaying their products at the Flipkart Site. Moreover, many of the products are highlighted as 'Flipkart-Choices/Standard/Express/Free Delivery by Flipkart/No Interest EMI/EMI and many of such-like offers of concessions/facilities/discounts etc' as at the Flipkart-Site.
10. The Vendee Buyers at the Flipkart-Site truly fall under the statutory definition of 'Consumer' as they all pay way of 'cuts' from the product invoice prices' paid by them.
11. We are certainly not convinced with the basics of the OP No.1 FLIPKART as well as that of the OP No.2 Vendor pleadings and find them unsustainable as these proceed on the wrong understanding of law and facts. On the issue of e-commerce as an 'Intermediary' we have refreshed the applicable provisions of the IT Act' 2K and have also respectfully mulled over the Senior Court Judgments as quoted and placed forth on records by the OP1 e-Site/Intermediary Site who somehow does not get much benefited. In Suit (L) No. 696 of 2015 Notice of Motion (L) No.2049 of 2015 titled e-bay India Pvt. Ltd. (Applicant) in the matter of: Faber-Castell Aktiengesellschaft & Anr. vs. Cello Pens Pvt. Ltd. & Anr., the honorable High Court of Judicature at Bombay has ruled out that the goods in question were only exchanged through the services of the applicant/2nd defendant between the plaintiff and the defendants and no relief was also sought against them being intermediary only within the meaning of IT Act, 2k. But, here the OP1 have been much worse so as not to fall under the definition of Intermediary U/IT Act, 2k as they have been an accomplice of the OP2 Vendor not only in the employ of 'unfair trade practices' but also in the illegal act of 'unscrupulous exploitation' of the unaware consumers in countless but certainly in good number. The OP1 are admittedly guilty of allowing all sellers to display their products on their site for the consumers' purchases. They admittedly do not exercise any discretion/discipline/control neither in their selection nor in their dealings/transactions with the buyers/consumers. We admire and appreciate the courage/conviction/consistency exhibited by the present complainant who has single-offhandedly held fort otherwise most of the consumers 'bear' the loss in silence for shyness cum ambiguity of triviality of issue and the amount, in transaction. It is for the conviction of legal/preferred right/common cause and not the money for which the few brave among-st us struggle.
12. Lastly, coming to the issue of the ONP (onus/burden of proof) we find that the complainant has successfully discharged his initial ONP by way of infringement of his consumer right/deficiency in service at the OP end vide delivery of 'wrong' product of – the one different brand – as has been implicitly admitted by both the opposite parties. Further, the OP1 has admitted vide its reply that all sellers can display their products at its Site for purchase by the Buyers that duly implies an inherent deficiency in service and also being accomplice in employ of 'unfair trade practices' with all such vendors who by now have 'unscrupulously exploited' an uncounted number of consumers, in thousands may be more, and that attracts adverse statutory awards to both the opposite parties.
13. We observe that the OP's other trivial objections are ambiguous and no more that petty queries in non-fidelity/ignorance and have been well responded by the complainant in his rejoinder to their written reply. The OP1 have also omitted/ignored to produce some cogent evidence in support of their allegations that otherwise are no more than bald statements. The OP did mention of the terms of the applicable policy but did not produce any evidence of communicating of the same to the complainant. We have observed many such petty anomalies mentioning of which shall not serve any good purpose, at this stage. The facts in issue need be appreciated while awarding sanctity to the current applicable law. So we move ahead with furtherance.
14. In the light of the all above, we order the OP’s. to arrange delivery of the product as actually ordered by the complainant through the OP2 Vendor or any of its other vendors or refund Rs.24,953/- alongwith interest @ 6% PA besides paying him Rs.10,000/- as compensation for having caused harassment on account of delivery of totally different product that that ordered and delay cum physical harassment and wasting of his precious/valuable time non-productively that cannot be compensated in terms of money and also to pay another Rs.5,000/- as cost of litigation etc.
15. We also find during the present proceedings that the titled opposite parties being accomplices in the exposed/apparent unfair trade practice have unscrupulously exploited an unknown uncounted number of consumers and are thus liable to punitive damages and thus we order the titled opposite parties 1 and 2 to deposit a sum of Rs.5000/- in the District consumer Legal Aid A/c. The awardees are further ordered to ensure/afford compliance to all our above orders within 45 days of the receipt of the certified copies of these orders otherwise an additional interest @ 3% PA shall get attracted on the aggregated awarded amount from the date of filing of the present complaint till the payment stands paid, in full.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (B.S.Matharu)
NOV. 23, 2022. Member.
YP.
