IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 28^th day of June, 2024

Present:  Sri. Manulal V.S. President

 Sri. K.M. Anto, Member

C C No. 416/2023 (Filed on 05.12.2023)

O  R  D  E  R

Sri. Manulal V.S. President

        The complaint is filed under Section 35 of the Consumer Protection Act 2019.

The complainant had ordered a "Flipkart Assured" laptop of the manufacturer HP with model No: 15s-fq5185TU through the opposite party's assured seller. The complainant had paid an amount of ₹ 37,179/- for the said product through his friend's credit card. The opposite party informed him that the product would be delivered by 30.10.2023. The delivery agent of the opposite party did not allow the complainant to have an open box delivery, and the product was delivered after sending an OTP to the complainant's mobile phone. After the delivery by the authorized delivery agent of the opposite party, the complainant opened the box and found that the opposite party had delivered the wrong product. The complainant had received an old laptop of the maker Dell, which was dead and the said product, did not have any back cover; instead of his brand new laptop of the maker HP. The complainant opened the delivery box right in front of his house, and the entire visuals right from the time, the delivery agent of the opposite party had come to effecting delivery until the time the complainant had opened the delivery box to find that he had received a wrong product, was recorded in the CCTV camera's installed in the complainant's house.

The complainant promptly addressed the issue by contacting the delivery agent to return the wrong product and filing an online complaint with the opposite party. The complainant followed the instructions provided by the opposite party by submitting a return request on 30.10.2023 and then on 01.11.2023 as per their guidelines. However, on 09.11.2023, when the complainant sought updates, the opposite party informed them that the return request would be cancelled and directed the complainant to contact the manufacturer's service centre for any further assistance.

Despite the complainant's efforts to explain the situation, the opposite party promised action by 12.11.2023 but unexpectedly sent a message on 11.11.2023 stating that the return request had been cancelled. When contacted the customer care executive, the complainant was informed for the first time that the return request was cancelled due to unclear photos of the wrongly delivered product submitted by the complainant. They were then requested to send clear images to the provided email address and initiate the return request once more. The opposite party assured the complainant's issue would be resolved within 23.11.2023. On being dissatisfied by the opposite party's indifferent attitude towards the complainant, he filed a complaint with the National Consumer Commission's online portal, which was forwarded to the opposite party. The opposite party rejected the complainant's complaint on the National Consumer Commission's online portal, stating that the return could not be approved as the return policy had expired.

The complainant is now not able to reach out to find the seller, as the opposite party's website shows that the seller has changed. This mishap has been caused to the complainant after purchasing a Flipkart Assured product from the opposite party. The opposite party is vicariously liable for the actions of its sellers. The complainant's issue came up in a vernacular daily newspaper, and he also shared his experience with the "X" web application. On 22.11.2023 upon seeing the tweet, the opposite party again contacted the complainant, saying that they would re-initiate the return request. The complainant was once again constrained to follow the opposite party's repeated demands and false assurances in the hope that his grievance would be redressed. Then, the fourth time, a return request was initiated by the complainant. On considering the fourth request, the opposite party had assured that the issue would be resolved within three days, and on 26.11.2023, the complainant was once again called and told that the problem would be resolved within 24 hours. However, the complainant did not find any positive action from the opposite party, and the opposite party's delivery agent came to the complainant's house on 30.11.2023 and refused to accept the wrongly delivered product, citing that he could not take a different product other than the one which was to be originally delivered. The acts of the opposite party amount to deficiency of service and unfair trade practice.

Hence, this complaint is filed by the complainant praying for an order to direct the opposite parties to refund an amount of ₹ 37,179/- along with interest at the rate of 18% per annum from the date of payment and to pay compensation of ₹ 50, 000/- for the loss on account of the mental agony, pain, sufferings and helplessness along with ₹ 10,000 as the cost of the proceedings.

Upon notice from this Commission, the Opposite party appeared before the Commission and filed Version Contenting as follows:

The Opposite Party is the owner of the website www.flipkart.com along with its Mobile Application named "Flipkart, which inter-alia is engaged in providing trading/selling facilities over the internet through its platform. Opposite Party is an online marketplace e-commerce entity defined under the Consumer Protection Act, 2019, and Consumer Protection (E-commerce) Rules, 2020. The 'Flipkart Platform' is an electronic marketplace model E-commerce platform that acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end consumers. It is submitted that these sellers are separate entities controlled and managed by different persons/stakeholders. The complainant has failed to implead the seller in the present complaint.

The business of the Opposite Party falls within the definition of an "intermediary under Section 2(1)(w) of the Information Technology Act, 2000. The Opposite Party is protected by the provisions of Section 79 of the Information Technology Act, 2000. The complainant placed the order for the product, which was delivered to the complainant in good condition after being fully satisfied with the said product. The complainant chose the open -box delivery of the product at the time of placing the order from the opposite party   platform. The opposite party informed the complainant that since this is an open Box delivery shipment, the complainant has to check the product before providing the OTP to the wish master and post, and any defect in the product cannot be accepted. It is pertinent to mention that the opposite party has duly informed the complainant that since it is open box delivery, the seller will not be providing the refund/replacement of the product.

The complainant duly checked the product at the time of delivery and accepted it. It is further submitted that the allegation of the complainant that the product screen was damaged at the time of delivery is wrong and baseless, and it might have been broken due to the complainant's fault.

It is submitted in the version that the Flipkart Wishmaster will call the customer's registered mobile number before delivering the product to the doorstep. Upon reaching the doorstep, the Wishmaster will request the customer's consent to make an open Box Delivery and seek your permission to open the box; the Flipkart Wishmaster will open the primary as well as secondary packaging of the product. This shall be done in the customer's presence. In addition, the Wishmaster will explain the benefits of open Box Delivery. The Wishmaster will then check the delivered order for any physical damage on the shipment, and then the Customers are required to accept delivery only after they have verified the contents of the box and confirm that they have received the right products that they ordered in an intact condition. Once the customer is satisfied that the product has been delivered as expected, the customer must confirm successful delivery by sharing with the Wishmaster a one-time password (OTP) received via SMS from the authorized Flipkart sender ID. The complainant has accepted the open delivery and shared the OTP with the Wishmaster after being fully satisfied with the product, and now the complainant, with malafide intention and to extort undue money, has filed the present complaint against the opposite party.

The complainant ordered the product through the platform of the Opposite Party after agreeing to the terms and conditions mentioned on the website of the opposite party. Flipkart Platform clearly states that the contract of sale is a bipartite contract between the buyer and the seller, and the Opposite Party is not a Party to it. Flipkart does not make any representation or warranty as to specifics (such as quality, value, salability, etc) of the products or services to be sold or offered to be sold or purchased on the platform. Flipkart does not implicitly or explicitly support or endorse the sale or purchase of any products or services on the platform. Flipkart accepts no liability for errors or omissions, whether on its behalf or with third parties.

Flipkart is not responsible for any non-performance or breach of any contract entered into between Buyers and Sellers. Flipkart cannot and does not guarantee that the concerned Buyers and Sellers will perform any transaction concluded on the platform. Flipkart shall not and is not required to mediate or resolve any dispute or disagreement between Buyers and Sellers. Flipkart does not make any representation or warranty regarding the item-specifics (such as legal title, creditworthiness, identity, etc.) of any of its Users. Flipkart does not at any point of time during any transaction between Buyer and Seller on the platform 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.

There has been no deficiency of service on the part of the Opposite Party, as the complainant is facing an issue with the product, and the Opposite Party, irrespective of that, has made earnest efforts to redress concerns outside its purview. The complainant filed proof affidavit in lieu of chief examination and marked exhibits A1 to A6. There is no documentary evidence from the side of the opposite party.

We would like to consider the following points on the evaluation of the complaint version and evidence on record.

1. Whether the complainant had succeeded to prove any deficiency in service and unfair trade practice on the part of the opposite parties?
2. If so, what are the reliefs and costs?

Point Nos. 1 & 2

There is no dispute that the complainant purchased a laptop party through the opposite party's website by choosing open-box delivery of the product. The specific case of the complainant is that, though he had ordered a Flipkart assured laptop of the manufacturer HP with model number 15s-fq5185TU, the opposite party delivered an old laptop which is manufactured by Dell, which was dead and did not have any back cover instead of a brand new laptop of hp. It is further proved by exhibit A4, which is an email communication sent by the customer support of the opposite party on 11.11.2023 to the complainant that the return request of the complainant for HP core i3 12th Gen 15s-fq5185TU Laptop Couldn't be fulfilled by the seller as the product image said were not clear enough to be validated.

It is contended by the opposite party that upon arrival, the Wish master of the opposite party will request the complainant's consent for an open Box Delivery and obtain permission; they will open the product's packaging in the presence of the complainant and explain the benefits of the service. The Wish master will inspect the order for physical damage, and the complainant should verify the contents to ensure they received the correct, intact items. Once satisfied, confirm successful delivery by sharing the OTP received via SMS from Flipkart. To prove his case, the complainant produced the CCTV footage recorded on the CD. However, we have gone through the visuals recorded in the CD, and we cannot see that the delivery agent of the opposite party opened the box in front of the complainant to ensure that the product had been delivered in good, non-defective condition. The visual in the CCTV footage proves that the delivery agent of the opposite party delivered the package in intact condition to the complainant and left the premises of the complainant. Therefore, the contention raised by the opposite party is not tenable.

Even though the opposite party has not filed an affidavit, the Commission has gone through the detailed version submitted by the opposite party. The submission of the opposite party is that they are an online platform, there is no liability towards the complainant, and the seller alone is responsible for the inconvenience caused to the complainant. The opposite party cited the provisions from the Information Technology Act, 2000, and provisions from the Consumer Protection (e-commerce) Rules, 2020. The complainant contended that he approached the opposite party not because of trust in the quality of the product but because he believed the responsibility of the online platform was to provide service to customers as a reputed online platform. The complainant specifically contended that the seller's details were displayed nowhere on the Flipkart site. It is also relevant to state that nowhere in the detailed version submitted by the opposite party revealed the address particulars of the seller. Moreover, the complainant firmly contended that it is the online platform's responsibility to ensure the seller's credibility on the site of the opposite party. The Consumer Protection (e-commerce) Rules 2020 Sections 4, 5, and 6 reveal the duties of e-commerce entities, liabilities of marketplace e-commerce entities, and duties of sellers on market place, respectively. But in the instant case, the opposite party, being online marketplace, has not displayed any information regarding the seller of the product as per the statutory provision mentioned above and also failed to provide updated information about the said seller when asked by the complainant to the Customer Care of the opposite party over the telephone. The online market place is not without any responsibility with the consumers. The marketplace entities are responsible for providing the details of the seller, as stated by the complainant.  In this complaint, the opposite party failed to establish the contentions in the version.

The other plea taken by the opposite party is that the business of the party falls within the definition of an "intermediary" u/S 2(i) (w) of the Information Technology Act, 2000. There is no privity of contract with the complainant, as it merely provides an online marketplace where the independent third-party sellers can list their products for sale; therefore, the sellers themselves are responsible for their respective listing of products on the website, and Party is neither responsible for the products that are listed on the website by various third party sellers' as well as their delivery. The opposite party has received the payment. Therefore, it cannot be said that there is no privity of contract between the complainant and the opposite party. Once the opposite party has accepted the payment, the opposite party, along with the seller, is responsible for the delivery of short products and the quality of products. Therefore, the ground taken by the opposite party is not justified. 

            Further, it reveals that the complainant has placed his order online on the website of the opposite party for a Flipkart assured laptop of the manufacturer HP with model number 15s- fq5185TU and paid ₹ 37,179/-. It is further proved by exhibit A6 that the opposite party confirmed the acceptance of the order vide IDNo.:OD429484235333630100 on 22.10.2023 and the product was delivered on 30.10.2023. It also reveals that the complainant, after a query regarding the return of the product, the opposite party vide exhibit A6 approved the same on 29.11.2023 and informed the complainant that they would pick up the product by 6th December and offer a replacement of ₹ 37,179/- within five days after pick up is completed. However, the opposite party has no case that they have taken back the product and refunded ₹ 37179/- as they offered.  Hence, in our considered view, the opposite party is not only negligent in rendering proper service to the complainant but also involved in unfair trade practice; as such, we hold there is a deficiency in service on the part of the opposite party. Considering the nature and circumstances of the case and keeping in mind the salutary principle of the Consumer Protection Act 2019, we allow this complaint and pass the following order.

We hereby direct the opposite party to refund an amount of ₹ 37,179/- along with interest at the rate of 9% per annum from 05.12.2023, i.e., the date on which this complaint is filed till realization. We hereby direct the opposite party to pay₹ 20, 000/- as compensation to the complainant for the deficiency in service and unfair trade practice on the part of the complainant.

We hereby direct the opposite party to pay ₹ 3, 000/- to the complainant as the cost of this proceeding.

The order shall be complied  within 30 days from the date of receipt of the copy of this order, failing in which the compensation amount shall carry interest @9% from the date of this order till realization.

    Pronounced in the Open Commission on this the 28^th day of June, 2024

    Sri. Manulal V.S, President   Sd/-

    Sri.K.M.Anto, Member         Sd/-                                                         

APPENDIX :

Exhibits from the side of the Complainant :

A1     -  Copy of the purchasing details of the HP Core i3 12^th Gen -Laptop

A2     -  CD

A3     -  Copy of the rejected refund request

A4      -  Copy of the email communication from Filpkart dated 11.11.2023

A5      - Copy of the Grievance Details

A6      - Copy of the accepted refund request

Exhibits from the side of the Opposite Parties :

Nil    

By Order,

                                                                                                        Assistant Registrar