Date of filing :18.8.2017
Judgment : Dt.26.6.2018
Mr. Ayan Sinha, Member
This is a complaint under Section 12 of C.P.Act, 1986, made by Sri Banibrata Das, son of late Jamini Kanta Das of 84A, Selimpur Road, Flat No.3, 2nd floor, Dhakuria, Kolkata-700 031 against (a) Flipkart Internet Private Limited, Vaishnavi Summit, No.6/B, 7th Main, 80 Feet Road, 3rd block, Koramangala, Bangalore-560 034 (OP No.1), (b) Micromax Informatics Micromax House, 697, Udyog Vihar, Phase V, Gurgaon, Pincode-122 022, Haryana (OP No.2) and (c) Cesreesh Touch, 76/4, Selimpur Road, P.S.-Jadavpur, Kolkata-700 031 (OP No.3) praying for directions upon the OP No.1 & OP No.2 joint and severally to refund the sum of Rs.34,999/- with interest along with compensation of Rs.19,00,000/- for mental agony and harassment and litigation cost of Rs.50,000/-.
Facts in brief are that the Complainant purchased one product of OP No.2 which is a Micromax 109 Centimeter (43), Ultra HD (4K) Smart LED TV on 12.3.2017 for Rs.34,999/- through Flipkart Internet Private Ltd. (OP No.1). The said TV set was delivered on 14.3.2017 vide order ID.OD508617022080648000 order dt.12.3.2017 and surprisingly found after delivery that the optical audio output channel is missing which was in the specification when he purchased the said product.
On 15.3.2017, the technician i.e. OP No.3 came to install the TV at Complainant’s residence and the technician left the premises without installing the TV set. The Complainant also asked the technician about missing of the optical audio output but the technician refused to provide any information and so the Complainant received the TV set with endorsement “NOT AS Described set”. The Complainant requested to the concerned officials of OP No.1 several times from 16.3.2017 and only on 11.4.2017 the technician of OP No.2 arrived and concluded that the optical audio output channel is missing and the same is mentioned in jobcard of OP No.3 vide No.WB-10047-1381605. Thereafter, the OPs started avoiding the problem and refused to solve the grievances. The Complainant mentioned in his petition of complaint that the OPs have exaggerated the specifications. The Complainant would not have purchased the said TV set if the specifications would have been correctly stated against which the Complainant stated there is an unfair trade practice and deficiency in service on the part of the OPs. OP No.3 carries on business/works for gain under Jadavpur P.S. which is within the jurisdiction of this Forum. The cause of action arose at Complainant’s premises which is also in the jurisdiction of this Forum. The OP No.1 & OP No.2 carries business/works for gain outside the jurisdiction of this Forum and so the Complainant prayed for directions to grant leave under Section 11(2)(b) of the C. P. Act to proceed the case against OP No.1 & OP No.2.
Thus the Complainant filed this petition of complaint.
Notices were served upon all OPs.
OP No.1 contested this case by filing written version where they have denied all allegations made by the Complainant. OP No.1 stated in their written version that their business falls within the intermediary under Section 2(1) (w) of Information Technology Act 2000 and provides medium to various sellers all over India and sell their products and do not sell any product directly or indirectly on Flipkart Platform. They also alleged that the request of the Complainant was accepted by OP No.1 in respect to the defects and thereafter was cancelled due to technical issues. OP No.1 also stated they are on line web portal operator and in no way has any liability for the defect in goods.
OP No.1 has also stated in their written version that for the above said reason there is no deficiency of service and unfair trade practice on their part and prayed for dismissal of this complaint with cost.
OP No.2 & OP No.3 did not file written version within 45 days and finally the case was heard ex-parte against them.
Complainant has filed affidavit-in-chief where he has reiterated the facts as mentioned in the petition of complaint. OP No.1 filed questionnaire to which Complainant filed Affidavit-in-reply against which OP No.1 filed evidence. Similarly, Complainant filed questionnaire to which OP No.1 did not file any affidavit-in-reply.
Ld. Advocate for the Complainant filed BNA.
OP No.1 did not appear at the time of final hearing even after two dates were given and finally the case was fixed for judgment.
Main point for determination is to
- Whether Complainant is a consumer?
- Whether there was any deficiency of service upon OPs?
- Whether the Complainant is entitled for the relief as prayed for?
Decision with reasons
Point No.(i)
On perusal of the records, it reveals that the Complainant had purchased one MICROMAX 109 CM(43) ULTRA HD(4K) Smart LED TV through Flipkart on line shopping vide Tax Invoice No.FDYSF01617-00049496 dt.13.3.2017 for Rs.34,999/- showing both billing and shipping address as Banibrata Das, 84A, Selimpur Road, Flat No.3, 2nd floor, Chirita, near Mangolik, Kolkata-700 031.
In this context the Complainant has submitted original Invoice also.
So, the Complainant is a consumer and as such Point No.(i) answered accordingly.
Point No.(ii) & Point No.(iii)
Firstly, on perusal of the User Manual filed by the Complainant in original, it is clearly mentioned in the Technical Specifications (Pg. No.29 of the User Manual) that the Micromax 109cm (43”) TV has been provided with AUDIO OUTPUT (RMS) 10W X 2.
So, there is no dispute that the said AUDIO OUTPUT (RMS) 10W X 2 was to be delivered along with the TV.
Secondly, on perusal of the copy of job sheet No.WB100417-1381605 issued by OP No.3, it also reveals that they have mentioned “This set Optical Audio Channel not found” in the product Serial No.00130B964144197 and the said serial is matching with the serial as mentioned in the Invoice.
Thirdly, on perusal of the records in file that the Complainant has already filed some e-mail/internet copies where there are steps mentioned “How do I Return an item purchased on Flipkart?”
The Complainant sent a Return Request to OP No.1 for Rs.34,999/- on 16 March against which OP No.1 generated a Return ID:1020886610928721507 and replied “We’re processing your replace request. Watch this Section for updates” and thereafter rejected the replacement status mentioning “We’re sorry. We are unable to process your replace request”.
OP No.1 in their written version and as well as their evidence have admitted that the grievance of the Complainant with respect to the alleged defects in the product and return not provided to the Complainant. They have also admitted that the request of the Complainant has been accepted but thereafter the request was cancelled due to some technical issues.
On perusal of the questionnaire filed by the Complainant, it appears that the complainant has already raised this issue in question No.20 for cancelling his request by OP No.1 due to some technical issues but neither they filed affidavit-in-reply nor they were present at the time of argument to substantiate with reasons for cancelling the request.
All the aforesaid matters are taken up together for the sake of brevity and avoidance of repetition of facts.
In our view it is clear that the OP No.1 after selling the product is trying to shirk away from their liabilities.
Ideally OP No.1 could have followed up with the Manufacturer and get the grievance of the Complainant resolved instead of compelling the Complainant to file this instant petition of complaint.
In this matter, we have relied upon the judgment of Hon’ble NCDRC in Rediff.com India Limited VS Ms. Urmil Munjal, RP4646 of 2012 and the order was passed on April, 2013. In that complaint case Rediff.com is an online shopping platform where they had claimed was mere facilitator of the transaction between the seller and buyer and cannot be held for any deficiency of service. Rediff.com also alleged Complainant is not a consumer since there was no contract for supply and the services provided to the buyer are gratuitous or without any consideration. But, Hon’ble National Commission was pleased to pass an order in para 9 of the judgment “If this is the declared business interest of RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its consumers, without any consideration” and, therefore, Hon’ble NCDRC was pleased to dismiss the revision petition case filed by Rediff.com who is an online shopping portal.
So, we hold there is a gross deficiency of service upon OPs since they have shrugged the liabilities and the Complainant is entitled to the reliefs prayed for.
As such Point No.(ii) & (iii) answered accordingly.
Complainant has also prayed for compensation of Rs.19,00,000/- and litigation cost of Rs.50,000/- which is exaggerated.
In this matter we have relied upon the judgment of Hon’ble Supreme Court in GHAZIABAD DEVELOPMENT AUTHORITY VS BALBIR SINGH where Hon’ble Supreme Court was pleased to hold “However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause”.
In this case it is true that the Complainant has purchased the TV set at the cost of Rs.34,999/- on 14.3.2017 and which is still not functioning till date and so it is clearly understood the mental harassment of Complainant for more than 1 year for not being able to use the TV.
In our view if a direction be given upon OP No.1 & OP No.2 joint and severally to refund back Rs.34,999/- along with compensation of Rs.15,000/- and litigation cost of Rs.8,000/- justice would be served. No relief is sought against OP No.3.
Hence, ordered
CC/488/2017 and the same is allowed in part on contest against OP No.1 and ex-parte against OP No.2 with cost and dismissed against OP No.3.
The OP No.1 & OP No.2 are directed to pay Rs.34,999/- to the Complainant within 45 days from the date of this order.
The OP Nos.1 & 2 are also directed to pay compensation of Rs.15,000/- and litigation cost of Rs.8,000/- to the Complainant within the aforesaid period. In default, the total amount shall carry interest @7% p.a. from the date of this order.
The liabilities of OP No.1 & OP No.2 are joint and several.
The OPs are further directed to collect the same defective TV set from the address of the Complainant at free of costs only after paying the full decreetal amount to the Complainant.
