The brief fact of the case as per W.V. filed by the O.P. is as follows-
The alleged product was ordered by the complainant through the platform of the O.P. and not from it. The said product had been sold by the independent third-party seller and not by the O.P. The delay in delivery was caused by the seller and later the ordered was also cancelled by the seller only for the reason of courier constraints and when the complainant came up with his initial grievance and the same was duly forwarded by the O.P. to the independent third-party seller and in accordance to the information received, the order was cancelled by the independent third-party seller only. However, considering the situation of the complainant, the O.P. requested third-party seller to process the complete refund of the complainant on the immediate basis and the same was processed by independent third-party seller and was adequately forwarded by the O.P. to the complainant. Further, the complainant was given an option by the seller to place a fresh order of the product within a period of ten days and for that as a token of apology from the O.P., Rs. 1, 500/- (Rupees One Thousand and Five Hundred) only would be credited to his Flipkart account. However, the complainant never showed any interest in the solution already served to him but in gaining unlawful monetary benefits from the O.P. and hence this complaint. The O.P. had not received any legal notice from the side of the complainant.
The O.P. also added that they never cancelled any order placed by the complainant. The order of the complainant was cancelled by the seller for the reason best known to the seller and there was no deficiency in service from the side of the O.P. as well as the O.P. had not caused any harassment, mental agony and monetary loss of any kind to the complainant. In this context, the O.P. prayed to dismiss the complaint against him with exemplary cost awarded to the O.P.
List of documents filed by the O.P. are as follows :
- Photocopy of Judgment of Hon’ble Supreme Court (Civil Appeal No. 5759 of 2009).
- Photocopy of Judgment of Hon’ble Supreme Court (Civil Appeal No. 8701 of 1997).
- Photocopy of Guideline for Foreign Direct Investment (FDI) on E-commerce.
Having heard, the Ld. Advocate of both the side and on perusal of the Complaint, Written Version and documents filed by the parties the following points are taken to be decided by this Commission.
POINTS FOR CONSIDERATION
1) Whether the complainant is a consumer?
2) Whether the case is maintainable under the CP act 2019?
3) Whether this Commission has its jurisdiction to decide this case?
4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?
5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?
DECISION WITH REASONS
All the points are taken up together for consideration and decision.
Seen and perused the complaint petition and Written Version filed by the parties which are supported by the affidavit, documents filed by the parties. We are also heard arguments of both the parties in full length.
The complainant resides in Siliguri of Darjeeling district and thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act- 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.
At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P.s not only through his Written Deposition but also by producing documents.
The complainant booked / purchased a mobile phone (Realme 8 5G Supersonic Black) 128 GB for Rs. 16, 499/- (Rupees Sixteen Thousand Four Hundred and Four Hundred and Ninety Nine) only vide Order ID No. OD223064331780577000, dated 09.10.2021. Hence, this Commission does not hesitate to hold that the complainant is a very much consumer in this case as per the C.P. Act, 2019.
In this instant case, the complainant booked / purchased a mobile phone (Realme 8 5G Supersonic Black) 128 GB for Rs. 16, 499/- (Rupees Sixteen Thousand Four Hundred and Four Hundred and Ninety Nine) only vide Order ID No. OD223064331780577000, dated 09.10.2021. At the time of booking, the delivery date of shipment was 12.10.2021 but it was not delivered on that date and it was informed by the O.P. that the product would be delivered on 14.10.2021 but it was not delivered. The complainant submitted a request mail to the O.P. for the delivery of the product on 14.10.2021 and in response to the same O.P. replied through mail on 15.10.2021 and informed the complainant that the product would be delivered by 20.10.2021 by 09:00 p.m. but it was again not delivered and again the O.P. informed the complainant vide its mail dated 17.10.2021 that the product would be delivered by 21.10.2021 by 09:00 p.m. and thereafter on 20.10.2021 at 05:57 a.m., the complainant had received a mail from the O.P. that the booking order of the complainant had been cancelled. The complainant then issued a legal notice to the O.P. on 19.10.2021 but did not get any result. Thereafter, after cancellation of the said product, the complainant purchased the same product at a higher price from the market for Rs. 18, 100/- (Rupees Eighteen Thousand and One Hundred) only vide Invoice No. nmc 372, dated 21.10.2021 because the O.P. failed to deliver the said product to the complainant and for this negligent act of the O.P. the complainant faced unnecessary harassment, acute mental agony and monetary loss.
In support of his defense, the O.P. submitted that the alleged product was ordered by the complainant through the platform of the O.P. and not from it. The said product had been sold by the independent third-party seller and not by the O.P. The delay in delivery was caused by the seller and later the ordered was also cancelled by the seller only for the reason of courier constraints and when the complainant came up with his initial grievance and the same was duly forwarded by the O.P. to the independent third-party seller and in accordance to the information received, the order was cancelled by the independent third-party seller only. However, considering the situation of the complainant, the O.P. requested third-party seller to process the complete refund of the complainant on the immediate basis and the same was processed by independent third-party seller and was adequately forwarded by the O.P. to the complainant. Further, the complainant was given an option by the seller to place a fresh order of the product within a period of ten days and for that as a token of apology from the O.P., Rs. 1, 500/- (Rupees One Thousand and Five Hundred) only would be credited to his Flipkart account. However, the complainant never showed any interest in the solution already served to him but in gaining unlawful monetary benefits from the O.P. and hence this complaint. The O.P. had not received any legal notice from the side of the complainant.
The O.P. also added that they never cancelled any order placed by the complainant. The order of the complainant was cancelled by the seller for the reason best known to the seller and there was no deficiency in service from the side of the O.P. as well as the O.P. had not caused any harassment, mental agony and monetary loss of any kind to the complainant. In this context, the O.P. prayed to dismiss the complaint against him with exemplary cost awarded to the O.P. In support of his defense, the O.P. filed 02 (two) separate judgment copy of Hon’ble Apex Court.
In order to prove the case, the complainant has filed its evidence in the form of an Affidavit and in the Written Complainant has specifically corroborated the complaint and has stated on which day he booked/ purchased the said product from the O.P., also narrated the date of payment of the said product. The Complainant has also filed the series of e-mail communications with the O.P. regarding the delay shipment and also the cancellation of his previous order by the O.P. The Complainant has also stated in his evidence that after cancellation on which date he purchased the mobile phone from the market to fulfill his requirement. The complainant also stated that the O.P. did not return back his booking amount of the said product till today.
At the time of argument Ld. Advocate of the Complainant submits that the Complainant has been able to prove its case against the O.P not only through her Written Deposition but also by producing documents.
In view of above discussion and other materials on record we are of the view that this Commission has sufficient Jurisdiction to entertain this complaint as a consumer dispute and thereby this case is maintainable.
As per evidence of the complainant, it is very much clear that the O.P. received the order from the complainant. It is the duty of the O.P. to deliver the product on time and if any shortcomings occurred then it will be treated as a deficiency in service from the part of the O.P. unless the O.P. gives sufficient reason of the delay and also gives sufficient evidence that the negligence occurred due to natural calamities or any other unavoidable circumstances. But in this case, the O.P. failed to give satisfactory reason of his failure. It is the duty of the O.P. to supply a product within scheduled time with a good condition because when a consumer always buys a product from a reputed e-commerce company like Filipkart Internet Private Limited. with an expectation for delivery of a good quality of product and service as well as better offerings from the company but in this instant case the company failed to provide to deliver his best services to his consumer. In this instant case the O.P. repeatedly changed the delivery dates of the said product and finally cancelled the order of the complainant. So, this Commission has no doubt to hold that there is a deficiency of service from the part of the O.P. In this case, the Commission follows the theory of vicarious liability and the O.P. is liable in this case.
Hence, it is, therefore,
O R D E R E D
That the Consumer Case No. 80/2021 be and same is allowed on contest against the O.P. (Filipkart Internet Private Limited) with cost. The O.P. is liable in this case.
The O.P. is directed to pay Rs. 2, 000/- (Two Thousand) only to the complainant for harassment and mental agony and also Rs. 1, 000/- (Rupees One Thousand) only for litigation cost by an Account Payee cheque in favour of the complainant within 45 (forty five) days from the date of this order, i.e., from 05.09.2024 failing which the complainant shall be at liberty to realize the entire awarded amount in due process of law.
Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.
