Haryana

Panchkula

CC/31/2016

ASHISH KUMAR - Complainant(s)

Versus

FLIPKART INTERNET PVT.LTD. - Opp.Party(s)

COMPLAINANT IN PERSON.

20 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.   

Consumer Complaint No	:	31 of 2016
Date of Institution	:	16.02.2016
Date of Decision	:	20.07.2016

                                                                  

                                                                                          

Ashish Kumar aka Ashish Kularia S/o Rajesh Kumar, R/o Flat No.106-A, Housing Board Complex, Sector-14, Panchkula.

 

                                                                                   ….Complainant

Versus

1.       Flipkart Internet Private Limited, Ozone Manay Tech Park, #56/18 & 55/09, 7^th Floor, Garvebhavipalya, Hosur Road, Bangalore-560068, Karnataka through its Managing Director/Director.

2.       Motorola Mobility India Private Ltd., Build No.7A, 12^th Floor, Tower-D, DLF Cyber Green, Phase-III, Gurgaon-122002 (Haryana).

3.       Vignesh Services, SCO No.32, Sector-31D, Chandigarh.

4.       Sant Rameshwari Enterprises, SCO No.26 (first floor), Sector-20D, Chandigarh.

                                                                   ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Narinder Kajla, Adv., for the complainant. 

Mr.Mukhbir Singh, Adv., for the Op No.1.

Ops No.2 & 4 already exparte.

Op No.3 already given up.

ORDER

(Dharam Pal, President)

1. The complainant-Ashish Kumar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that he purchased online a Motorola Moto X (XT 1052) mobile through Op No.1 on 05.11.2014 for an amount of Rs.17,912/- (Annexure C-1) with one year warranty and the same was delivered by the OP No.1. After few days, the handset went out of order. On 03.02.2015, the complainant made a complaint with Op No.3 i.e. authorized service center whose engineer suggested that motherboard of the handset needed to be replaced. The complainant got replaced the motherboard and after carrying out necessary repairs returned the handset to the complainant vide delivery challan dated 06.02.2015 (Annexure C-4) but during the process of replacement of the motherboard, they damaged its back cover and NFC card. Later on, the Op No.3 informed the complainant that NFC card had not been provided by the Company and asked to wait as it would take some time. They also assured that they would contact the complainant as soon as NFC card was available with them but they did not inform him. On 04.03.2015, the complainant made a complaint with Op No.3 but after ten days i.e. on 14.03.2015, they had returned the handset without repairs due to unavailability of parts. On 27.05.2015, the complainant again visited the Op No.3 but due to unavailability of parts they had returned the handset after 15 days i.e. on 11.06.2015. Thereafter, in the month of July/August 2015, the handset stopped receiving network/wifi/signal. The complainant again submitted his handset with Op No.3 on 05.08.2015, they again replaced the motherboard and returned the handset without repairs/change of NFC on 18.08.2015. After passing one month, the back camera and flash light stopped working. The complainant again visited the OP No.3 and they told that the service center of Motorola had changed. The complainant visited Op No.4 on 27.10.2015 who demanded estimated cost of Rs.1700/- for repairing the handset. The complainant told the Op No.4 that the handset was within warranty and requested to repair the handset but it refused to repair the handset without charges. As per warranty card, if the product was damaged or not working properly, the Op No.1 would have to be returned the money but the Op No.2 failed to comply with the conditions of warranty and not replaced the handset. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. OP No.1 appeared and filed written statement by taking some preliminary objections and submitted that the present complaint is not maintainable. It is submitted that the complainant has not approached the Hon’ble Forum with clean hands. It is submitted that Op No.1 is a company duly registered under the provisions of the Companies Act, 1956 and having its registered office at Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feet Road, 3^rd Block, Koramangla Industrial Layout, Bangalore 560034, Karnataka. It is submitted that the Op No.1 provides online marketplace/platform/ technology and/or other mechanism/services to the sellers and buyers of products 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 games, mobiles, music, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc. It is submitted that the business of the Op No.1 falls within the definition of an “intermediary” u/s 2 (1)(w) of the Information Technology Act, 2000 which is as under:-

“intermediary”, with respect to any particular electronic records, 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, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;”

It is submitted that the Op No.1 is protected by the provisions of Section 79 of the Information Technology Act, 2000, which is reproduced as under:-

“79…

1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
2. The provisions of sub-section (1) shall apply if-

1. the functions of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
2. the intermediary does not-

1.   initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

3. The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

It is submitted that the complainant is not a consumer of OP No.1 under the provision of Consumer Protection Act. It is submitted that there is no privity of contract between the complainant and Op No.1. It is submitted that Op No.1 provides an online platform to merely facilitate the entire transaction of sale and purchase of goods by the respective sellers and buyers on its website. It is submitted that Op No.1 is not engaged in selling of any goods on its own. It is submitted that Op No.1 only provides an online platform to different registered sellers where the registered sellers advertise their products with specification and sell goods and the visitors/buyers of the website, voluntarily, enter into transaction of purchase of various goods from those sellers at their own choice. It is submitted that Op No.1 is not involved in the entire transaction except for providing the online platform for the transaction(s) and the concerned contact(s) of sale and purchase is between the seller and the buyer. It is submitted that all the transactions done over website are governed by “Terms of Use” which is as under:-

“1.     All commercial/contractual terms are offered by and agreed to between Buyers and Sellers alone. The commercial/contractual terms include without limitation price, shipping costs, payment methods, payment terms, date, period and mode of delivery, warranties related to products and services and after sales services 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 acceptances of such commercial/contractual terms between the Buyers and Sellers.

2.       Flipkart does not make any representation or warranty as to specifics (such as quality, value, salability, etc) of the products or services proposed to be sold or offered to be sold or purchased on the website. Flipkart does not implicitly or explicitly support or endorse the sale or purchase of any products or services on the website. Flipkart accepts no liability for any errors or omissions, whether on behalf of itself or third parties.

……………………………..

4.       Flipkart does not make any representation or warranty as to the item-specifics (such as legal title, creditworthiness, identity, etc) of any of its Users. You are advised to independently verify the bona fides of any particular user that you choose to deal with on the Website and use your best judgment in that behalf.

5.       Flipkart does not at any point of time during any transaction between Buyer and Seller on the Website come into or take possession of any of the products or services offered by Seller nor does it at any point gain title to or have any rights or claims over the products or services offered by Seller to Buyer.

6.       At no time shall Flipkart hold any right, title or interest over the products nor shall Flipkart have any obligations or liabilities in respect of such contract entered into between Buyers and Sellers. Flipkart is not responsible for unsatisfactory or delayed performance of services or damages or delays as a result of products which are out of stock, unavailable or back ordered.

7.       The website is only a platform that can be utilized by users to reach a larger base to buy and sell products or services. Flipkart is only providing a platform for communication and it is agreed that the contract for sale of any of the products or services shall be a strictly bipartite contract between the Seller and the Buyer.

It is submitted that the Op No.1 does not provide any warranty on the products sold on its website. Thus, there is no deficiency in service on the part of Op No.1 and prayed for dismissal of the complaint.  

3. Notice was issued to the OP No.2 through registered post but none has appeared on behalf of the Op No.2. It is deemed to be served and the Op No.2 was proceeded ex-parte vide order dated 28.03.2016
4. The Op No.3 was given up by the complainant vide a separate statement vide order dated 28.03.2016.
5. Notice was issued to the Op No.4 through registered post but none has appeared on behalf of the Op No.4. It is deemed to be served and the Op No.4 was proceeded against ex-parte vide order dated 04.05.2016.
6. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-11 and closed the evidence. On the other hand, the Op No.1 has tendered the evidence by way of affidavit Annexure R1/A and closed the evidence.
7. We have heard learned counsel for the parties and have also perused the record carefully and minutely.
8. Admittedly, the complainant had purchased online a Motorola Moto X (XT1052) mobile handset through OP No.1 on dated 05.11.2014 for an amount of Rs.17,912/- (Annexure C-1) with warranty of one year. The grievance of the complainant is that the handset was giving problem after few days of its purchase and approached the Op No.3. The engineer of the Op No.3 told that the motherboard needed replacement which was got replaced and the same was returned to the complainant vide delivery challan Annexure C-4 but they damaged its back cover and NFC card. Thereafter, in the month of July/August, 2015, the handset giving problem in network/wifi/signal and the complainant submitted his phone with Op No.3. At that time, the Op No.3 again replaced the motherboard of the handset but thereafter, the back camera and flash light stopped working. The complainant submitted his handset with Op No.4 who demanded Rs.1700/- (Annexure C-11) for repairing the handset whereas the handset of the complainant was within warranty period. The complainant in his complaint mentioned that as per Ops’ policy, if any product is damaged or not working properly, the Op No.1 would have to be returned the money but the Op No.2 refused to replace the handset. The act and conduct of the OPs clearly shows that in this way or that way they want to harass the consumer to avoid the payment made by the complainant.  Learned counsel for the OP No.1 raised another plea that it never comes in possession of the product, therefore no privity of contract has arisen with the complainant as it only provides online market place/ platform/ technology and other mechanism/services to the sellers and buyers of products to facilitate the transactions etc. This plea itself is sufficient to prove that the OP No.1 company is engaged in the business of providing services through its internet portal to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of moveable goods. If this is the declared business interest of OP No.1, it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not  the case of OP No.1 that it is a charitable organization involved in ecommerce with no business returns for itself, therefore, the plea raised by OP No.1 is distinguished being devoid of any merit. On this point reliance can be taken from case law titled as Rediff.com India Limited 1^st Floor, Mahalaxmi Engineering Estate L.J.Road No.1 Mahim (W) Vs. Ms.Urmil Munjal c/o Gurgaon Gramin Bank decided on 10.07.2015 by the Hon’ble National Commission in Revision Petition No.4656 of 2012.  It is worthwhile to mention here that now-a-days online shopping is spreading everywhere because it is time and money saving but the responsibilities of the companies cannot be over after selling of the product as it is the bounded duty of the companies to satisfy their customers because it does not give any liberty to usurp the money of the consumers either by sending wrong items or defective product. In the present case, it is very well established that wrong item was sent by the seller, therefore, the complainant has a right to seek refund of the price. Such like behaviour and practice is not expected from a company which is selling its product through online. In other words, we can say that this act and conduct of the company falls under unfair trade practice and deficiency in service as defined in Sections 2 (f) and 2 (g) of The Consumer Protection Act, 1986 because it sells or sends the wrong item after charging full amount of the product.
9. In view of the above discussion, we are of the view that the present complaint deserves to be allowed and the same is accordingly allowed. The Ops No.1, 2 & 4 are directed as under:-

1. To refund the amount received from the complainant qua the product in question i.e. Rs.17,912/-.
2. To pay an amount of Rs.5,000/- as compensation for mental agony and harassment etc.
3. To pay an amount of Rs.5,000/- as cost of litigation.

This order shall be complied with by the Ops within one month from the date of receipt of the certified copy. A copy of this order be supplied to the parties free of costs.  File be consigned to records after due compliance.

 

 

Announced

20.07.2016        S.P.ATTRI           ANITA KAPOOR       DHARAM PAL

                                  MEMBER            MEMBER                     PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                 

                                                         DHARAM PAL

                                                          PRESIDENT