ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant under Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the unfair trade practice by OP and for compensation of Rs.15,279/- and Rs.2,000/- towards cost of the litigation expenses and other reliefs as this forum deems fit under circumstances of this complaint.

2.     The brief facts of the complaint are that: the complainant purchased through OP, a cell phone Billion Capture Plus Mystic Black 64 GB exclusively sold by OP for Rs.8,279/- by placing order online and the same was delivered to him on 18.11.2017.  There was a scheme by OP that if a customer or purchaser pays additional Rs.149/-, the same would be bought back and under the scheme, if the same is returned between 21.04.2018 to 20.07.2018  the value to be given for buy back is  Rs.5,200/- and between 21.07.2018 to 19.11.2018 is Rs.4,100/-.

3.     It is contended that, the complainant tried to exchange the said cell phone on 10.06.2018 for another mobile using the APP. OP has not listed the said phone Billion Capture for exchange. Hence complainant could not exercise his option for exchange though he desired to do it. He gave a complaint through their app Flip kart who called back  and their executive were of the opinion that the cell phone Billion Capture Plus has not been listed for exchange offer and requested him to keep looking at the APP every day and if by chance an offer is made, he could exchange the same.  He explained the same regarding the closure of the offer period.

4.     After 20.07.2018, OP has listed Billion Capture Plus and valued as Rs.2,100/- thereby harassing the complainant and a practice of unfair trade. Though email was sent, OP has not obliged. Hence has filed this complaint for return of the value of goods of Rs.8,279/-, Rs,.5,600/- towards mental agony and Rs.2000/- towards the litigation expenses.

5.     Upon service of notice, OP appeared through its counsel filed its version contending that the complaint is not maintainable and e has suppressed the true facts. OP is a private limited company registered under companies Act and it is a platform facilitate the transaction in electronic, commerce and various goods between buyers and sellers and is only a intermediary to facilitate sale transaction in respect of goods including but not limited to mobiles, cameras, computers, watches, cloths, footwear, healthcare, personal products, home appliances, and other electronic items. The 3^rd party sellers use the plat form to list advertise and offer to sell their products. Hence it is only an intermediary under Section 2(1)(w) of Information Technology Act 2000 and Section 79 of the said Act.   The terms and conditions of the respective sales are decided by the sellers, also in respect of warranty, price, discount and promotional offers. Complainant is not a consumer within the ambit of definition of the consumer as he has not been charged for any service. 

6.     OP cannot be held liable for the transaction since the complainant has purchased the product from one of the sellers listed on the platform. OP is not liable for any of the transaction as there is no privity of contract between them. The product is not liable for exchange. The grievance should have been against the seller who has not been made as a party in the complaint.  OP has no liability for exchange of the product. The compensation claimed is unreasonable, illegal, and by no stretch of imagination, it can be held that there is deficiency in service and unfair trade practice and by denying the allegations made in each and every of the para of the complaint, OP prayed the forum to dismiss the complaint and also sought for exemplary costs from the complainant. 

7.     In order to prove the case, Complainant and OP.No.2 filed their affidavit evidence and produced documents. Arguments Heard.The following points arise for our consideration:-

1) Whether the complainant has proved

    deficiency in service on the part of the    

    Opposite Party?

2) Whether the complainant is entitled to the

    relief prayed for in the complaint?

8.     WE ANSWER:

POINT NO.1:            In the affirmative

POINT NO.2:            Partly in the Affirmative.

                                For the following.

REASONS

POINT No.1:-

9.     It is not in dispute that the complainant purchased over online through OP a Cell Phone Billion Capture Plus mystic black 64 GB exclusively sold by OP  for Rs.8,279/- by placing order online and the same was delivered to him on 18.11.2017.  There was a scheme by OP that if a customer or purchases pays additional Rs.149/- the same would be bought back sold by them and under the scheme, if the same is returned between 21.04.2018 to 20.07.2018  the value to be given for buy back is Rs.5,200/- and between 21.07.2018 to 19.11.2018, is Rs.4,100/-.

10.   It is not in dispute that, the OP supplied the material i.e. mobile handset billion capture plus to the complainant on the advertisement made on the platform of OP. Ex.P1 is the flipkart.com order information wherein it has mentioned as Billion Capture Plus (Mystic black 64 GB) delivered to the complainant and the value is Rs.8279/- and it is also mentioned that buy back guarantee colour mystic black seller fair value retail and if amount of Rs.149/- paid the buy back value is Rs.5,200/- if it is returned between 21.04.2018 to 28.07.2018 and Rs.4,200/- if the product is returned between 21.07.2018 to 19.11.2018. 

11.   Notice is also issued to OP as per Ex P2 and the same has been served as per the postal acknowledgement Ex P3. Ex.P4 is the reply given to the issue raised by the complainant wherein it is mentioned that the basic checks to be done.  They are:-

“1.Check if ‘Exchange Offer’ is valid on the product.

2. Select the accurate Model, IMEI number, Serial number, working condition of the product and other mandatory fields.

3. Pay the discounted amount listed on the website.

4. Present the courier executive with the same product as opted during the purchase.

5. Keep the products charged for the courier executive to check.

6. Take a backup of the data before handing it over to the courier executive.

7. You cannot change the exchange offer once the order is placed. i.e. once an exchange order is placed, you cannot convert an exchange order to a regular order by withholding the exchange product and giving the cash equivalent to FE. The only possibility is to cancel the exchange order and place a regular order.”

12.   The first point is to check if exchange offer is valid on the product. When this is taken into consideration along Ex.P1, it becomes clear that if the complainant pays Rs.149 the buy back value will be Rs.5,200 and Rs.4,200/- if the product is returned between 21.04.2018 to 20.07.2018 and from 21.07.2018 to 19.11.2018. 

13.   It is the specific case that, the complainant could not exercise the option of returning the said mobile handset as there was no listing for exchange.     This amounts to clear deficiency in service since Ex.P1 provides for exchange of material during the said period and Ex.P4 requires the complainant to check there is exchange offer.

14.   Though it is true that the OP is a platform for the sale, at the same time it owes a duty to provide correct information and abide by the assurance given by it or through it by the sellers for whom OP makes advertisement on its platform. Hence we are of the considered opinion that there is deficiency in service and unfair trade practice on the part of OP in not providing opportunity for the complainant to avail the exchange offer. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2.

15.   Complainant has sought Rs.8,279/- being the value of the cell  phone, Rs.5,600/- for mental agony and Rs.2,000/- towards litigation expenses. 

16.   Op perusing  Ex. P1, it becomes clear that by paying Rs.8428/- the complainant purchased BILLION CAPTURE PLUS mobile handset with a option of return within the time prescribed and by doing so the supplier would refund Rs.5,200 or Rs.4,200/- depending on the period within which complainant seeks for exchange. In view of our holding the Point No.1 in the affirmative, since the complainant has used the said mobile handset and has been using the same, he is not entitled for the refund of the value of the mobile handset. Since OP has not provided the option for exchange over internet or over its platform, the complainant was put to inconvenience, hardship for which he has to be compensated. Since there is no monetary loss, we are of the opinion that if a sum of Rs.2,000/- damages for mental sufferance and Rs.2,000/- towards litigation expenses if ordered will meets the ends of justice. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The Complaint is allowed in part with cost.
2. The OP i.e. Flipkart Internet Private Limited represented by its Director/Authorized Signatory is hereby directed to pay a sum of Rs.2,000/- towards damages and Rs.2,000/- towards cost of the litigation expenses. Complainant prayer for refund of Rs.8,279/- is hereby rejected.
3. The O.P is hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 14^th JUNE 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the order information.

Ex P2: Copy of the Legal Notice dated 27.07.2018.

Ex.P3: Postal acknowledgement.

Ex P4: Copy of the email reply.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1:Ms.Amrita Pratap, Authorized Signatory of OP.

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                        PRESIDENT

A*