| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 205 of 5-8-2019 Decided on : 1-6-2023 Nishant S/o Sh. Bhushan Garg R/o B/VIII/279 Bahia Street near Diggiwala School, Rampura Phul Distt. Bathinda. ........Complainant Versus Flipkart Internet Private Limited Vaishnavi Summit Ground floor 6/B, 7th Main, 80 Rd, 3rd Block, Karmangla Bangalore 560034 thorugh its Managing Director. Aditya Birla Fashion and Retail Limited, 7th floor, Skyline Icon Business Park 86-92, Off, AK Road, Marol Village Andheri (East) Mumbai 400059 through its Managing Director. Tech Connect Retail Pvt. Ltd No.42/1 and 43, Kacherakanahals village Jadigenahalli Hobes Hoskote Taluk Bangalore Karnataka 560067.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Jasvir Singh, Advocate. For opposite parties : Sh. Vikas Kumar, for OP Nos.1 & 3. Opposite party No.2 ex-parte. ORDER Lalit Mohan Dogra, President The complainant Kulwant Rai (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986, ( Now C.P. Act, 2019 here-in after referred to as 'Act') before this forum (Now Commission) against State Bank of India and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that complainant being Software Engineer is very well aware about the brand names of various companies doing their business through various Internet mode of advertisements, for the sale of their products on Google and facebook and various online shopping companies selling the products of various names brand such as shoes, apparels, trousers, shirts and other products. The complainant intended to purchase Peter England shoes manufactured by opposite party No.2 for his beloving father Bhushan Garg who is Law Graduate since last more than 30 days ago considering that shoes are more comfortable than ' other shoes. The complainant placed the online order for sports shoes WF 19132/Peter England HSN 6405 aaab vide order No. 110693501892920000 invoice No. FAAAAB 1804 144 947 dated 8.11.2017, which was ordered through Flipkart opposite party No.1 as manufactured by opposite party No.2 at the described price of Rs .1,494 /- was its final price. It is alleged that as per the order the opposite parties in compliance of the order as placed had made the delivery of shoes a Black order ID 0D110693501892920000 as ordered and approved by shipping on 13.11.2021for a price of Rs.1,494/-. The complainant was pretty happy and satisfied that he had purchased shoes for the use and comfort of his father. Then Mr. Bhushan, father of the complainant started wearing the brand name Peter England shoes but after wearing the same 4-5 times the cracks developed on the toe of the left side shoe, thinking it had inherently manufacturing defect. Father of the complainant made complaint/quarry with Flipkart C Incident : IN 1801051214565957401 on customer support dated 5.1.2018 by narrating the fact that after using 2-3 times shoes got cracks. I had spent Rs.1500/- such a bad quality you are supplying. He wants to return anyhow. Kindly do the needful of SAP. But the opposite party No.1 showed their inability to return the same. It is further alleged that again the father of the complaint made a complaint to the opposite party No.2 on 24.1.2018 at their Helpline happy . to help @peterengland.com. and asked them to redress his grievances but the opposite party No.2 did not bother to reply. That again the father of the complainant made a complaint_ to the opposite party No.2 on 16.2.2018 through m email and opposite party No.2 advised Bhushan Garg the father of the complainant to handover the defective shoes at any Peter England exclusive store/show room and further assured that the same will be checked by the experts of the opposite party No.2 and it will take 15 days and as per directions of opposite party No.2 the shoes were handed over to Peter England show room Madagar Shoppe No. 2090-A the Mall, Bathinda on 18.2.2018. It is also alleged that after about one month the father of the complainant again sent a mail to the opposite party No.2 and the same was replied that the claim has been rejected stating that the defect is neither related to manufacturing process nor related to the product but the damages are due to improper handling with the mark PU life span is short, PU damages has happened during usage/ improper handling of the product during usage and the father of the complainant was asked to collect the said defective shoes from the abovesaid Peter England store which were collected on 18.3.2018 It is worth mentioning that a sum of Rs.600/- were spent to adopt the abovesaid process i.e. to hand over and collect the said shoes. Father of the complainant is well educated M.A.LLB and aged about 58 years and practicing as Advocate and Rampura town is plain area and not mountainous. He is not teenager and is not driving motor cycle. The father of the complainant is very decent man and had to wear the shoes while sitting in his office. He is not trekker all and is not running any machine and is not a labour to usage it while doing labour work. In fact the cracks and rashes occurred within a period of 50 days and even wearing hardly 4-5 times during that period is very safely can be presumed and can be concluded that the shoes had manufacturing defect due to this the cracks were appeared. The complainant alleged that the opposite parties with the connivance of each other and to defraud the consumer used to sell the defective products online having inherent manufacturing defects causing loss to them and cheat the people as is happened with the complainant The opposite parties had sold and supplied the shoes manufacturing defect to the complainant. The said manufacturing defects are not curable and thereby the opposite parties had indulged in unfair trade, practice and deficiency in service. The complainant thinking and believing the shoes manufactured by opposite party No.2 are best of best quality but hope of purchasing best shoe for his father were shattered and the opposite parties have miserably failed to redress the grievance. Thus this act of opposite parties amounts to deficiency in service and opposite parties had indulged in unfair trade practice. Due to this the complainant had suffered mental tension and agony due to .adamant attitude of opposite parties Rs.50,000/ is being claimed as damages on account of mental tension and also claims replacement or in alternative seeks the refund of paid price of Rs.1,494/- from the opposite parties alongwith interest from the date of purchase. The complainant has served a legal notice dated 23.4.2019 through his counsel but to no effect. There is deficiency in service on the part of the opposite parties and the opposite parties have caused deficiency in service. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to refund Rs.1,494/- being the price alongwith interest and to pay Rs.50,000/- as compensation due to mental tension and agony and for the loss of physical health and Rs.22,000/- as litigation expenses. Upon notice, opposite party appeared through counsel and contested the complaint by filing written reply raising preliminary objections that the complainant has suppressed true and material facts from this Hon'ble forum and cooked all stories of sufferings. The opposite party is duly incorporated under the companies Act, 1956 with its registered office at Buildings Alyssa, Begonia & Clover Embassy Tech Village,Outer Ring Road, Devarabeesanahalli Village Bengaluru-560103, Karnataka, India. It has been pleaded that Mr. Harsha Kiran. S. M, aged about 39 years, Authorised Signatory of the Company is authorized to sign and verify the Reply/Written Statement, Valcalatnarna etc. and appoint advocate(s) on behalf of the Opposite Party No. 1 vide resolution dated 07.01.2019. The Company is engaged, among others, in providing trading/ selling facility over the Internet through its website vmrw.flipkarticom and mobile application (Mob App) (hereinafter collectively referred to as the "Flipkart Platform"). The Answering Opposite Party 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 between respective buyers and sellers and enables them to deal in various categories of goods but not limited to mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc. The said `Flipkart Platform' is an electronic plotform which acts as an intermediary to facilitate sale transactions between indedendent third party sellers and independent customers. The independent third party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart Platform. Once a buyer accepts the offer of sale of the products 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 with terms for sale displayed by seller on the filpkart Platform. It has been pleaded that answering opposite party only acts as an intermediary through its web interface www.flipkart.com and provides a medium to various sellers all over india to offer for sale and sell their product to the users of the flipkart Platform. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. The answering opposite party does not directly or indirectly sells any products on Flipkart Platform. Rather, all the products on Flipkart Platform are sold by third party sellers, who avail of the online marketplace services provided by the Answering Opposite Party, on terms decided by the respective sellers only. It is further submitted that, any kind of assurance, whether in terms of warranty on the products, Price, Discounts, Promotional Offers, after sale services or otherwise, are offered and provided by the manufacturer of the products sold on Flipkart Platform. The Answering Opposite Party, neither offers nor provides any assurance and offers warranty to the end buyers of the product. The Answering Opposite Party respectfully submits that the Complainant doesn't fall under the category of consumer of the Answering Opposite Party under the provisions of the Consumer Protections Act as the Answering Opposite Party is neither a 'trader' nor a 'service provider' and there does not exists any privity of contract between the Complainant and the Answering Opposite Party, and therefore, it is submitted that the Complainant has wrongly arrayed Answering Opposite Party in the present Complaint and hence the complaint is bad for mis joinder of party. It is submitted that the above Complaint is totally false, frivolous and vexatious and has been filed with malafide intentions of causing harassment to the Answering Opposite Party. The averments made in the Complaint are baseless and are made only with the intentions to defame the Answering Opposite Party and extorting money in illegal manner. The Complaint is liable to be dismissed on this ground alone. It has been further alleged that the Answering Opposite Party submits that role/involvement of Answering Opposite Party is as an intermediary only, that is, to provide online platform to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its Flipkart Platform. The services of Answering Opposite Party are similar to a shopping mall where various shops are rented out to different sellers who independently Carryout sale proceedings With the customer/visitors of the shopping mall and in case of any defect in the goods sold by such shop owners/sellers in the shopping mall, it is the shop owner/ seller, who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. In the same way, the Answering Opposite Party is not involved in the entire transaction except for providing the online platform for the transaction(s) and the concerned contract(s) of sale and purchase is between the seller and the buyer (here complainant) only and hence this Answering Opposite Party shall not be held liable for any liability owing to such contract. It is further pleaded that no relief sought against the Answering Opposite Party can be granted in the given facts and circumstances. The product purchased by the Complainant has not been sold by Answering Opposite Party and Answering Opposite Party has no role to provide any after sale service. It is further submitted that the user(s) of the Flipkart Platform are bound by the Terms of Use enumerated on the Flipkart Platform which clearly state that the contract of sale is a bipartite contract between the buyer and the seller only and the Answering Opposite Party is not a party to it. On the Flipkart Platform i.e. . It is clearly mentioned that "All contractual/commercial terms are offered by and agreed to between the buyer and the seller alone. The contractual/commercial terms include without limitation price, shipping cost, payment method, payment terms, date, period and mode of delivery, warranties related to produce and services and after sale 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 acceptance of such terms between the buyer and the seller. These Terms of use clearly shows that the Answering Opposite Party has not been involved in any unfair trade practices.
It is further pleaded that there is no deficiency in services on the part of answering opposite party and by no stretch of immagination, it can be said that the answering opposite party is involved in any unfair trade practices for the reasons enumerated above. It is submitted that no dispute, as contemplated the consumer Protection Act, is caused to have arisen between the complainant and the answering opposite party and thus, the relief prayed for, is ought to be dismissed against the answering opposite party. On merits, opposite parties denied all the averments of the complaint. Upon notice, opposite party No.3 appeared through counsel and contested the complaint by filing separate written reply raising preliminary objections that present reply is being filed by Opposite Party No.3 i.e. Tec-Connect Retail Private Limited and Company is incorporated under the Companies Act, 1956, having its registered office at Unit No.403, Baani, Next to Hilton Double Tree Hotel Golf Course Road , Sec 56, Gurgaon Haryana-122011 (here-in-after referred to as the Answering Opposite Party). it is pertinent to mention here that the Answering Opposite Party is carrying on the business of sate of goods manufactured/produced by others. It is further submitted that the Answering Opposite Party is a registered reseller on the website "Flipkart.Com" and sells products of other manufacturers, traders, etc under their respective Trade Marks through the website. It is not out of place to mention that the Answering Opposite Party has acquired good market reputation for its range of products offered and for its exceptional customer support. That the present reply on behalf of Answering Opposite Party has been signed and verified by Mr. Jayesh Pratap Singh who is the Authorized Signatory of the Answering Opposite Party and is authorized to sign and verify the Reply/Written Statement, Vakalatnama, appoint advocate on behalf of the Answering Opposite Party vide the Board Resolution dated 16th June 2016. Copy of the resolution is annexed herewith. That the present Complainant filed by the Complainant is an abuse of the due process of law. The Complainant has not approached this Flontle Forum with clean hands and has suppressed true and material facts in order to mislead the Honble Forum; hence, the present complaint is not maintainable and is liable to be dismissed on this ground. That it is pertinent to mention here that the Answering Opposite Party is not engaged in selling of any goods manufactured or produced on its own. The Answering Opposite Party is engaged in selling of goods manufactured and produced by other Manufacturers. In the instant case, the manufacturer of the product has been impleaded as a party i.e 0.P 2. The Answering Opposite Party have a separate and distinct identity from that of the manufacturer of the product and there is no relation of principal & agent between the Answering Opposite Party and other Opposite Parties. That from a perusal of the Complaint it transpires that the entire grievance of the Complainant relates to the defects in the product and 'after sale service' issue post the product's satisfactory use by the Complainant for nearly about 2 months although there is nothing on record which shows that the leather of the product got damaged. It is a settled proposition of law that the liability for defect in the product or after sales service issues rests with the manufacturer only. Even admittedly the Complainant is well aware of the fact that the Answering Opposite Party being merely a reseller of the product, cannot remove the defect in the product, if any, and therefore Complainant has not even once approached the Answering party with regard to the alleged Issue. The manufacturer of the product is only the appropriate party which can remove the defect in the product if any. Therefore no liability can be fasten on the Answering Opposite Party. Therefore, the Answering Opposite Party cannot be held liable for the defect in the product, as alleged and hence the complaint is liable to be dismissed on this ground alone. That it is further reiterated that Answering Opposite Party are merely a reseller, registered on Tlipkartecom' and the product bought by the Complainant carries warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms & conditions determined by the manufacturers only. Irrespective of warranty as provided by the manufacturer, as a goodwill gesture the Answering Opposite Party provides 30 (Thirty) days return/replacement to its Customers, i.e. if there is any issue in the product within 30 (Thirty) days of the purchase which cannot be rectified, then the product will be replaced or at times, the amount is refunded. However, in the instant matter the Complainant used the product in issue for more than 50 days as admitted in the compliant itself and did not approach the Answering Opposite Party at any poiht of time, which leads to the conclusion that the product in question was fine not only at the time of the purchase but even thereafter. Thus, the natural conclusion that follows from the above facts is that the product at the time of delivery was fine and the defect arose after using the product for about 50 days for which the Answering Opposite Party cannot be made liable. Therefore, the Complaint filed by the Complainant is liable to be dismissed against the Answering Opposite Party. It is further pleaded that Answering Opposite Party is not liable to pay any compensation to the Complainant. in view of the aforesaid reasons the Answering Opposite Party has been wrongly impleaded in the Present Complaint and, therefore Complaint is liable to be dismissed for misjoinder of party. In support of his complaint, the complainant has tendered into evidence his affidavit dated 30.7.2019 (Ex. C-1) and documents (Ex.C-2 to Ex.C-17). In order to rebut the evidence of complainant, the opposite party No.1 has tendered into evidence affidavit of Harsha Kiran, dated 17.9.2019 (Ex. OP-1/1) and documents (Ex. OP-1/2 & Ex.OP-1/3). In order to rebut the evidence of complainant, the opposite party No.3 has tendered into evidence affidavit of Mr. Jayesh Pratap, dated 18.9.2019 (Ex. OP-3/1) and document (Ex. OP-1/2 & Ex.OP-1/3). We have heard learned counsel for the parties and gone through the file carefully. It is admitted fact that the complainant has purchased pair of shoes from opposite party No.3 by making payment to opposite party No.1. Only plea of opposite party No.1 is that it is not liable as it is only having role of intermediatory and liability to refund amount is that of opposite party No.2 i.e. manufacturer. Similar plea has been taken by opposite party No.3. Opposite party No.3 has further taken plea that shoes can be replaced only within 30 days. However, this Commission is of the view that 30 days return policy is regarding wrong order i.e. wrong size of shoe, or wrong colour other than ordered but since the shoes got damage within 50 days of its use, as such, opposite parties are liable to replace the shoes of the complainant. Accordingly, the complaint is partly allowed and opposite parties are directed to replace the shoes of the complainant with new pair of shoes within 45 days from the date of receipt of copy of this order and further directed to pay Rs.1000/- as compensation. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 1-6-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member | |
