BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.258 of 2020

      Date of Instt. 02.09.2020

      Date of Decision:17.03.2022

Kunal Sehgal S/o Sh. Ajay Sehgal R/o 339, Chotti Baradari, Part-1, Near Medical College, Jalandhar, Punjab-144001

..........Complainant

Versus

1.       Flipkart Internet Private Limited through its General Manager,       Buildings Alyssa, Begonia & Clove Embassy Tech Village,   Outer Ring Road, Devarabeesanahalli Village, Bengaluru, Karnataka-560103.

2.       Executive Officer, Flipkart Internet Private Limited, Buildings        Alyssa, Begonia & Clove Embassy Tech Village, Outer Ring   Road, Devarabeesanahalli Village, Bengaluru, Karnataka- 560103.

3.       Executive Officer, Flipkart Branch Office Sarita Vihar, Delhi.

4.       Executive Officer, Consulting Rooms Private Limited, InstaKart     Services Pvt. Ltd., DHL Goyal Builders, NH-1 Highway, Banur      Tepla Road, Village Mehmapur, Tehsil Rajpura, Punjab-140417.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj            (President)

                   Smt. Jyotsna                           (Member)                                          Sh. Jaswant Singh Dhillon       (Member)

Present:       Sh. Gautam Sehgal, Adv. Counsel for the Complainant.

                   Sh. A. S. Sohal, Adv. Counsel for OPs No.1 to 4.

Order

Dr. Harveen Bhardwaj(President)

1.                The instant complaint has been filed by the complainant, wherein he has alleged that the complainant ordered/purchased a MarQ Air Conditioner from the OP No.1 on 17.05.2019, vide Invoice No.#FAB15M200006025. That from the beginning of the summer season of 2020, complainant’s air conditioner was not working and when complainant contacted OP No.2 in the month of April 2020 complainant was informed/told ,that complainant area/pin code was in red-zone and as per government instructions, OP/Flipkart was not working in red-zone as of now and advised the complainant to contact OP No.2/Flipkart as and when complainant area will come out of red-zone. That as advised by OP No.2, complainant again contacted and registered his complaint regarding his grievance/not working of the Air Conditioner to OP No.2 on 29.05.2020. That thereafter technician of OP No.2 visited the residence of the complainant and checked the product and informed the complainant that a part of internal unit of the split Air Conditioner was damaged and it will come from Bangalore and will take 10-15 days. That on the assurance of the technician of the OP No.2, complainant waited for the response to get his product rectified when the summer season was at the peak in the northern India. That after seeing no action, complainant contacted the technician and was informed by the technician that as his invoice date was 21.05.2019 and now his product is out of warranty and if complainant wants to rectify his product he have to pay Rs.3000/-. That after listening to this reason of refusal complainant contacted OP No.2 regarding the warranty issue to which OP No.2 confirmed that due to nationwide lockdown OPs has extended complainant warranty and apologized for the inconvenience and assured the complainant that his product will be repaired/rectified at no cost and at the earliest. That relying on the assurance of OP No.2 executive promise complainant waited patiently but got shocked to receive a message from OP No.2 on 03.06.2020 that complaint of the complainant got completed. A copy of the text message dated 03.06.2020 received by the complainant. That the complainant again contacted OP No.2 on regular basis and explained that his product was not working since beginning of the summer season and he has also contacted OP No.2 in the month of April, 2020, but was informed that OPs will extend the warranty of the lockdown period and after many efforts again registered a complaint on 11.06.2020 to which again OP No.2 accepted that complainant product is under warranty and they will rectify it free of cost. A copy of text message dated 11.06.2020 received from OP No.2. That after getting no reply and response and after again registration of the complaint, complainant on every day basis contacted OP No.2 to check the update of his complaint, but finally on 18.06.2020 OP No.2 refused and denied the claim of the complainant by giving a reason that complainant product is out of warranty. A copy of the text message dated 22.06.2020 received by the OP No.2. That thereafter the complainant sent OPs a representation cum legal notice on 22.06.2020, but received no reply till 12.08.2020. That thereafter complainant counsel received a reply dated 07.08.2020 from OP No.1 in which they have refused for any responsibility for the product they are selling to the consumers/complainant and the relevant part of the reply dated 07.08.2020 is as under:-

                   “This contact between the independent seller and           respective buyer is a bipartite contract and Flipkart is not a party        to this contact. It is noteworthy that at no time does Flipkart hold          any right/title to or interest over the Product nor even have any           obligations or liabilities with respect to such a contract.”

                   It is further submitted that after registering the complaint for two times of the complainant and after giving fake promises to consumer for a month and without even analyzing the mental agony of the consumer, OP No.1 has tried to escape/run from its duty as the service provider. The reply sent by the OP No.1 was unjust and arbitrary as OP No.2 has sent there technician through their service company. That there is a great deficiency and negligence in services on the part of the OPs and due to which the complainant had suffered a great mental tension, agony and harassment apart from humiliation and complainant suffered great loss due to the inaction on the part of the OPs 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 pay Rs.1,00,000/- for deficiency in service and deliberate negligence, unfair trade practice and irreparable loss incurred by the complainant by the OPs for not repairing/rectifying the AC of the complainant in the peak of the summer season which also make OP liable for deficiency in service and litigation expenses of Rs.33,000/-.

2.                Notice of the complaint was given to the OPs and accordingly, OPs No.1 to 3 filed its joint written reply and contested the complaint by taking preliminary objections that the complainant has suppressed true and material facts from this Commission and trying to mislead this Commission. Hence, the present complaint is not maintainable and liable to be dismissed against the OP No.1. It is further averred that the OP No.1 is duly incorporated under the Companies Act, 1956. The company is engaged, among others, in providing trading/selling facility over the internet through its website ‘www.flipkart.com’ and mobile application. The OP No.1 is an online market place e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection Rules, 2020. It is further averred that the said Flipkart Platform is electronic marketplace model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. Consumer Protection Rules, 2020 has clearly distinguished marketplace E-commerce platform from the seller of the goods. Thus, for any act of the seller, the marketplace e-commerce platform or its operating entity cannot be held liable. It is further averred that the business of the OP No.1 falls within the definition of an ‘intermediary’ under Section 2(1) (w) of the Information Technology Act, 2000. It is further averred that no relief sought against the answering OP No.1 can be granted in the given facts and circumstances. The product purchased by the complainant has not been sold by answering OP No.1 and answering OP No.1 has no role in providing warranty of the product sold by an independent seller through the Flipkart Platform of the answering OP No.1. On merits, it is admitted that the product in question was purchased through the answering OP No.1 and not from it. It is further submitted that the role/involvement of OP No.1 is as an intermediary only, that is, to provide online platform facilitate the whole transaction of sale and purchase of goods by the respective seller and buyer on its Flipkart platform, 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.                OP No.4 filed its separate written reply, whereby contested the complaint by taking preliminary objections that the complainant has suppressed true and material facts from this Commission and approached with unclean hands. The complainant is trying to mislead the Commission by presenting the concocted story, hence the present complaint is not maintainable and liable to be dismissed on this ground. The OP No.4 is a company incorporated under the Companies Act 1956. The OP No.4 is carrying on the business of sale of goods manufactured/produced by others. It is further averred that the OP No.4 is not engaged in sale of any goods manufactured or produced by its own. Thus, OP NO.4 has a separate and distinct identity from that of the manufacturer of the product. That the complaint is wholly false, frivolous and vexatious and has been filed with malafide intention and for harassing the OP No.4. The complaint is not maintainable either in law or on facts and is liable to be dismissed in limine as it does not show any cause of action against the OP No.4. The present complaint is devoid of any merits, and the averments made in the complaint are baseless and do not cover the complete facts of the case and are made only with the intentions to defame the OP No.4 and extorting money in illegal manner. The complaint is liable to be dismissed on this ground alone. On merits, the factum in regard to purchasing the product by the complainant from the OP No.1 is admitted, 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.

4.                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. 

5.                In order to prove their respective versions, both the parties produced on the file their respective evidence.  

6.                We have heard the learned counsel for the respective parties and also gone through the case file as well as written arguments submitted by counsel for both the parties, very minutely.

7.                The complainant has purchased MarQ Air Conditioner on 21.05.2019 vide Invoice Ex.C-1 for Rs.24,999/- from OP No.4. The contention of the Ld. Counsel for the complainant is that from the beginning of the summer season of 2020, the Air Conditioner was not working and when he contacted the OP No.2, he was told to approach the OP No.2 after the lifting of the lockdown and when the area of the complainant is declared red-zone Free. As per Ex.C-1, there was one year warranty on the product and five years warranty was there on compressor. It has been proved on record vide Ex.C-1 only that the Air Conditioner was purchased through Flipkart i.e. OP No.1. As per this Invoice, the warranty was to expire on 20.05.2020. The complainant has not filed on record any document to show that he approached the OPs prior to 20.05.2020. As per the documents filed on record by the complainant, which are the articles and news in different newspapers, which show that there was a nationwide lockdown due to the outbreak of Covid-19. In Jalandhar, many areas were listed and declared the Red Zone Area, meaning thereby that the areas in which there was a sharpest spike in the Corona Virus positive cases. The period of limitation was extended in the cases under Negotiable Instrument Act and Arbitration and Conciliation Act. Even the OPs have suspended the services during the Covid-19 lockdown by stopping taking orders and disable-shipments. All the online portals had prohibited their portals from delivering non-essential items during the lockdown period. The company Samsung, One Plus Oppo and others had also extended the period of warranty. This shows that during the period, the complainant purchased the AC till he made first complaint in writing on 29.05.2020 there was outbreak of Covid-19 and the services were suspended by the online portals. The complainant sent a message on 29.05.2020, which was replied by AX-jeeves, vide Ex.C-2. Similarly there are messages and replies regarding the complaint of the complainant, which have been proved as Ex.C-3 to Ex.C-5. Ex.C-8 is the document to show that there was partnership of Flipkart i.e. OP with Jeeves consumer and the messages were also sent by AX-jeeves. MarQ brand is a registered trade mark of OP as per Ex.C-8. Thus, as per the above said documents the complaint was got registered with the OP by the complainant on 29.05.2020. As per Ex.C-3, the message has been sent by VK-Jeeves about service completed, which has been denied by the complainant. The OPs have not produced on record to show what defect was found by the OPs and how the service was completed. There is nothing on the record as to whether the product was damaged or there was a trouble in compressor. The fact remains that the warranty period was extended due to Corona Virus and the complaint was registered with the OPs during the Covid-19 period.

8.                The contention of the Ld. Counsel for the OPs that the OP No.1 to 3 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 OPs No.1 to 3 provided a platform to the complainant to purchase the AC 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 documents from Ex.C-1 to Ex.C-11, 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 OPs. The OPs No.1 to 3 opted to provide the services of selling AC by giving online platform through their website, therefore the complainant becomes consumer. As per Ex.C-1, the AC was sold by OP No.4 and it was through Flipkart i.e. OP No.1 to 3. The OP No.4 sold the AC to the complainant. Even Jeeves as discussed are the partners of OPs No.1 to 3.

9.                The OP 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.              There is no document on the record to show that the OPs has complied with these rules and has ever assisted the complainant in getting the issue resolved through their seller or manufacturer. As per the record the complainant has booked the order through OP No.1, which was accepted by the OP No.1 and the payment was received by the OP No.1. The product was also delivered by the OP No.1. All the correspondence was carried on between the OPs and the complainant. It is proved that the defect occurred within warranty period. As per Ex.C1 the warranty of the product is one year and five years on compressor. Despite the request made for number of times by the complainant, the issue has not been resolved by the OPs, thus, it amounts to deficiency in service and unfair trade practice on the part of the OPs and therefore, the complainant is entitled for the relief as claimed.

11.              In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay compensation of Rs.5000/- to the complainant for causing mental tension and harassment and Rs.3000/- as litigation expenses. 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.

12.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna              Dr. HarveenBhardwaj     

17.03.2022         Member                          Member              President