BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.273 of 2022
Date of Instt. 09.08.2022
Date of Decision: 02.08.2023
Sajan @ Sahil aged about 30 years son of Sh. Ram Parsad R/o House No.B-15, Mandi Road, Near Railway Station, Jalandhar.
..........Complainant
Versus
1. Flipkart Internet Private Limited, Vaishnavi Summit, No.6/8, 7th Main, 80 Feet Road, 4th Block, Koramangala, Bangalore-560034 through its Managing Director.
2. M/s Tech-Connect Retail Private Limited, Regd. Office:246, Phase-IV, Udyog Vihar, Gurugram, Gurgaon, Haryana-122001, through its Managing Director.
3. E-Kart Logistics, Sodal Chowk, Industrial Area, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Complainant in Person.
Sh. Aditya Jain, Adv. Counsel for OP No.1.
OPs No.2 & 3 exparte.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant purchased a Laptop make Infinix XI Slim Series Core i5 10 Gen-(16 GB/512 GB SSD/Windows 11 Home) XL21 Thin and Light Laptop, Colour: Blue bearing IMEI Serial No.4895180780806 through the OP No.1 by online placement of order No.OD225440040801350000 dated 11.07.2022 in the sum of Rs.41,943/- and made the payment of the same through Credit Card (one year warranty was also given by the seller to the complainant). The said Laptop was sold by the OP No.2, who issued the above said Tax Invoice No.#FAIH7Z2300958965 dated 11.07.2022. Subsequently, the said Laptop was shipped through OP No.3 who made the delivery of the above said product to the complainant. From the very first day of the purchase of the above said laptop, the complainant found the said laptop non-functioning as it could not even turned on at the first instance and thereafter also. The complainant approached the officials of OP No.1 telephonically over their customer care number +914445614700 and informed them that the laptop was not functioning and lodged a complaint firstly with OP No.1 who told the complainant that technician from the manufacturing company will visit the complainant and will resolve the issue and asked the complainant to wait till 25 of July 2022. Thereafter, when nobody turned up from the side of the OPs to resolve the issue of the complainant, the complainant again approached the officials of the OP No.1, who again started making lame excuses on the one pretext or the other. The complainant lodged a complaint over 1915 vide Grievance No.: 3688380 dated 25.07.2022 with the National Consumer Helpline at their link https://consumerhelpline.gov.in and was continued in getting updates from them till 01.08.2022. On the very next day i.e. 26.07.2022 the complainant again approached the OP No.1 and lodged his complaint with OP No.1, who further assured the complainant that his issue will be resolved by 28.07.2022. When the issue of the complainant was not resolved by the OPs, then the complainant again approached them and he was given next date 31.07.2022 and when nobody turned up till 31st of July 2022 the complainant under compelling circumstances had to purchase another Laptop as he was suffering a lot due to the Tack of this device. The complainant again approached the opposite parties on 1st of August 2022 and requested them to make refund of the Laptop as now he was not in need of the same because he had already bought another one. In the meantime the complainant sent an email to the OP No.1 on 29.07.2022 with the request either to replace the defective product with new one or to refund the payment of the same but he did not receive any reply from the OPs. On 31.07.2022 the complainant again sent an email to grievance officer @ flipkart.com to replace the defective laptop with new one, but nothing positive came from the OPs. After this the complainant received a text message from the OP No.3 on 03.08.2022 that their person having tracking ID FMPR0313977712 is coming to pick-up the defective laptop but nobody turned up. The complainant again received a text message from the OP No.3 on 04.08.2022 that their person having tracking ID FMPR0313977712 is coming to pick-up the defective laptop before 9 pm of the same day but nobody turned up. Since the person of the OP No.3 namely Taranjit Singh did not come to pick up the defective laptop from the complainant, the complainant rushed to the office of the opposite party No.3, from where he was given the mobile number of said Taranjit Singh which is 9876989147 and asked the complainant to approach him over this number. The complainant then made number of calls to said Taranjit Singh who did not receive any phone call and later on at about 9.30 PM the complainant received a phone call from said Taranjit Singh who directed the complainant to reach their office at once and get his defective laptop pick-up, otherwise he will not be able to claim any refund or replacement of the same. The said person talked to the complainant very loudly and in a rude manner. On the same night this person Taranjit Singh came outside the house of the complainant at around 10.30 PM and started calling the complainant to come outside from different numbers and it seemed that he was in drunkard state of mind & with some musclemen and wanted to cause harm to the complainant, the complainant did not came out of his house otherwise something wrong would have been done to the complainant at the hands of said Taranjit Singh and his companions. All the call details with Taranjit Singh can be produced later on. On the next day i.e. 05.08.2022 the complainant moved a complaint with S.H.O. P.S. Rama Mandi. Jalandhar against said Taranjit Singh that he is facing threats at the hands of said Taranjit Singh. On 06.08.2022 the complainant again lodged a complaint with the National Consumer Helpline at their link https://consumerhelpline.gov.in vide Grievance Number:3722948. The complainant requested the OPs for the replacement of the defective laptop with a fresh set of the same model and same type, but neither they replaced the same with new one nor made the refund of the same, till today. Ehe complainant is very much harassed, humiliated and given mental agony, and physical harassment on the part of the OPs by not replacing defective laptop which has manufacturing defect and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the defective laptop with a brand new laptop of same model and same configuration or to refund the full amount of the bill i.e. Rs.41,943/- alongwith interest @ 24% per annum from the date of its purchase till realization. Further, OPs be directed to pay a compensation of Rs.1,00,000/- for business loss and Rs.50,000 as complainant for causing mental tension and harassment to the complainant and Rs.7500/- as litigation expenses with interest @ 12% per annum.
2. Notice of the complaint was sent to the OPs, but despite service OPs No.2 and 3 did not appear and ultimately OPs No.2 and 3 were proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the complainant has suppressed true and material facts from this Commission and cooked all crooked stories of suffering. Hence, the present complaint is not maintainable and liable to be dismissed against the answering OP. it is further averred that the answering OP is a company duly registered under the provisions of the Companies Act, 1956 and having its registered office at Buildings Alyssa, Begonia & Clover Embassy Tech Village Outer Ring Road, Bengaluru. The company is engaged, among others, in providing trading/selling facilities over the internet through its website www.flipkart.com and mobile application (Mob App). The Answering OP provides an 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 mobiles, camera, computers, watches, clothes etc. The said ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers. The independent third-party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyers who visit the Flipkart Platform. Once a buyer accepts the offer of sale of the product made by the third-party seller on the Flipkart Platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart Platform. It is further averred that the business of the Answering OP falls within the definition of an ‘intermediary’ under Section 2(1)(w) of the Information Technology Act, 2000. It is further averred that the answering OP is protected by Section 79 of the Information Technology Act, 2000. It is further averred that the Complainant doesn't fall under the category of consumer of the answering OP under the provisions of the Consumer Protections Act as the answering OP is neither a trader' nor a 'service provider' and there does not exists any privity of contract between the Complainant and the answering OP. Therefore, it is submitted that the Complainant has wrongly arrayed the answering OP in the present Complaint. Hence, the complaint is bad for the mis-joinder of the party. It is further submitted that the above Complaint is totally false, frivolous and vexatious and has been filed with malafide intentions of causing harassment to the answering OP. The averments made in the Complaint are baseless and are made only with the intentions to defame the answering OP and extort money in illegal manner. The Complaint is liable to be dismissed on this ground alone. On merits, it is admitted that the complainant ordered a Laptop from the OP, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. The complainant has proved that he has purchased one Laptop through OP No.1, vide Invoice dated 11.07.2022 Ex.C-2 for Rs.41,943/-. The complainant has proved the placing of the order and confirmation of the order Ex.C-1. He received the product i.e. Laptop and the delivery report has been proved by the complainant as Ex.C-3. These facts have not been denied by the OPs also, but the OP No.1 has alleged that the OP No.1 is neither a seller nor manufacturer, but is a mere intermediary and he is not liable for any deficiency in service done by the OP No.2 or OP No.3.
7. The grudge of the complainant is that after receiving the Laptop, it did not function as it could not even turn on at the first instance. The complainant has proved on record the complaints emailed by the complainant to the National Consumer Helpline on 25.07.2022 when he did not get satisfactory reply from OP No.1 and OP No.3. He has proved on record the complaints, the reply of the OP and emails sent to the Grievance Officer Flipkart.com and their reply Ex.C-4 to Ex.C-9. Perusal of all these emails shows that the OP No.1 sent message to the complainant that their person i.e. E-kart Wish Master will pick up the product from the complainant alongwith accessories, vide Ex.C-7. All these emails Ex.C-7 to Ex.C-9 clearly show that the time and again, the person from E-kart Wish Master was appointed for pick up but the product was not picked up. Similar reply was given in Ex.C-4 also. The employee sent by the OPs allegedly made threats to the complainant vide telephonically as well as by approaching to the complainant personally. The complainant has also proved on record his grievance Ex.C-10 dated 06.08.2022.
8. The contention of the Ld. Counsel for the OP No.1 is that the OP No.1 is an electronic market place and act as intermediary to facilitate sale transaction between independent third party sellers and independent customers. It is not disputed that the OP No.1 provided a platform to the complainant to purchase the Laptop from the concerned company. But the fact remains that the complainant has made the payment to the flipkart for onward giving to the seller or manufacturer as the OP was intermediary of the platform provided for both seller and buyer. Flipkart cannot escape or run away from its liability on the ground that there was no privity of contract between the buyer and the seller. As per record and the proved document Ex.C-1, it is proved that the entire transaction and correspondence was done through the flipkart online portal i.e. www.flipkart.com. It is proved that the complainant purchased the product through flipkart website, therefore there exist the relationship of a consumer and the service provider between the complainant and the OP. The OP No.1 opted to provide the services of selling Laptop by giving online platform through their website, therefore the complainant becomes consumer.
9. The OP No.1 has sought the exemption under Section 79 of the Information Technology Act. Under Consumer Protection Act, 2019 there are rules regarding the liabilities of marketplace e-commerce entities. These rules have been notified on 23 July 2020 by the Department of Consumer Affairs. It has been mentioned that as per rule 5(1) of the liabilities of marketplace e-commerce entities, a marketplace e-commerce entity which seeks to avail the exemption from the liability under sub-section (1) of Section 79 of the Information Technology Act, 2000 shall comply with sub-sections (2) and (3) of that section, including the provisions of the Information Technology (Intermediary Guidelines) Rules, 2011. It has specifically been mentioned that a marketplace e-commerce entity shall require sellers, through an undertaking, to ensure that descriptions, images and other content pertaining to goods or services on their platform is accurate and corresponds directly with the appearance, nature, quality, purpose and other general features of such good or service. Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform:
(a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage: Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution.
10. From the above documents, it is proved that the complainant has suffered a lot and purchased another Laptop as his work was suffering due to lack of the Laptop. It has also been proved that the complainant was harassed by the OPs as his grievance was never resolved despite sending number of complaints and conversation between the parties and the complainant. It has also been proved that the product was never picked up by the OP No.3 despite appointing a person for this job. It is also proved that the person appointed abused the complainant and made threats to him. The employee of the OP i.e. OP No.3 threatened him and complaint against him was given by the complainant to the SHO PS Rama Mandi, Jalandhar Ex.C-9.
11. As per written statement and admission of the complainant and the document filed by the complainant, the refund was processed by Flipkart and was expected by August, 2022. This clearly shows that the refund of the Laptop was made after 15 August of 2022 and till then i.e. from 11.07.2022 till 15.08.2022, the complainant had to suffer harassment at the hands of the OPs and this is deficiency in service and unfair trade practice. So, from all the angles it is proved that there is a deficiency in service and unfair trade practice on the part of the OPs and the complainant is entitled for the relief.
12. In view of the above detailed discussion, the complaint of the complainant is partly allowed. As the refund has already been given to the complainant, the OP No.1 and OP No.2 are directed to pay the interest @ 6% per annum from the date of filing complaint till the refund was given to the complainant. Further, OP No.1 and OP No.2 are directed to pay a compensation including litigation expenses of Rs.10,000/- for causing mental tension and harassment to the complainant in equal shares and OP No.3 is also directed to pay a compensation including litigation expenses of Rs.10,000/- for causing mental tension and harassment to the complainant. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be sent to the parties, as permissible, under the rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr. Harveen Bhardwaj
02.08.2023 Member President
