BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case no. 646 of 2022
Date of Institution: 31.10.2022
Date of Decision: 03.06.2024
Gagandeep Kaur, aged 41 years wife of Shri Harpreet Singh, resident of Harkrishan Nagar, Street No. 8-A, Desu Road, Kalanwali, Tehsil Kalanwali, District Sirsa.
………Complainant.
Versus
Flipkart Internet Private Limited, Ozone Manay Tech Park, # 56/18 & 55/09, 7th Floor, Garvebhavipalya, Hosur Road, Bangalore- 560068, through its Manager/ authorized signatory.
……… Opposite party.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SHRI PADAM SINGH THAKUR………………. PRESIDENT
SMT. SUKHDEEP KAUR……………………….. MEMBER
SH. OM PARKASH TUTEJA ……………………MEMBER
Present: Sh. Ashish Singla, Advocate for complainant.
Sh. H. R. Singla, Advocate for opposite party.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that op is an online shopping website and offers delivery of different type of electrical goods, clothes, wrist watches etc. throughout India. On 06.10.2022 there was birthday of Gurasees Kaur daughter of complainant, so complainant and her husband decided to gift a smart mobile phone to their daughter. On 26.09.2022 they searched on Flipkart-app on her mobile phone and after few searches, they saw a smart phone i.e. Samsung Galaxy S21 FE 5G (Lavender, 128 GB) with offer price of Rs.25,234/- in lieu of exchange of mobile phone K-20 PRO of her husband and thereafter they decided to buy this smart phone and made payment through online mode. That Flipokart-app did not show any delivery option of village Kalanwali, however, an option of delivery was shown at Sirsa. The husband of complainant is an Advocate and ha sbeen practicing as an Advocate at District Court, Sirsa, so they decided to get delivery of mobile in his chamber and op assured that same will be delivered up to 3.10.2022 at his address i.e. prior to the birthday of daughter of complainant falling on 06.10.2022. It is further averred that they placed an order for purchase of mobile with op on 26.09.2022 and remitted a sum of Rs.25,234/- to the op through online payment option given by op. The op allotted order ID OD226105597750504000 dated 26.09.2022 and confirmed on its app the confirmation of order dated 26.09.2022 and the op also gave an option to track the order vide tracking ID FMPP1357351922. That when the complainant checked the status of her aforesaid order through tracing ID, it showed that order had arrived at Flipkart Facility, Sirsa on 29.09.2022 at 10.28 a.m. On 03.10.2022, the op sent an OTP to the complainant and delivery boy of op reached at the address of husband of complainant. However, when the husband of complainant checked the details of order with the packet of item, same did not match with the order ID of complainant, therefore, he did not take delivery of the same. The delivery boy also confirmed that said packet does not belong to them and further assured her husband that ordered product will be delivered to him on next day. It is further averred that they did not receive the product on 04.10.2022 despite assurance of op and even on 06.10.2022 also the op failed to deliver the mobile to them and thereby they could not give the same to their daughter on her birthday on 06.10.2022 and they were put in embarrassing situation. It is further averred that since the op failed to deliver the phone up to 08.10.2022, the complainant under deep agony and pain sent a message to the op that she will launch legal proceedings against the company for mental harassment and deficiency in service. However from 8.10.2022 to 13.10.2022 the officials of the op continued making calls to the complainant and requested to wait till 13.10.2022 but on 13.10.2022, the op all of a sudden without any prior intimation to the complainant without any reason or justification cancelled the aforesaid order in an arbitrary manner and the act and conduct of the op clearly amounts to gross deficiency in service and unfair trade practice and op has given a severe emotional shock and has also caused unnecessary harassment to the complainant. Hence, this complaint seeking direction to the op to pay a sum of Rs. four lacs as compensation and also to pay litigation expenses.
2. On notice, op appeared and filed written version raising certain preliminary objections that 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 and that answering op falls within the definition of an “intermediary” under Section 2 (1) (w) of the Information Technology Act, 2000 and is protected by the provisions of Section 79 of the Information Technology Act, 2000. It is further submitted that complainant has purchased the product from one of the sellers listed on the Flipkart Platform, which can also be evidenced from the copy of seller tax invoice which clearly states that the order is ordered through flipkart. The answering op is not involved in the entire transaction executed between the seller and complainant. On merits, it is submitted that product has been sold by a third party seller which is not impleaded as a necessary party to the complaint. The answering op is neither a seller nor the manufacturer/ producer of the product. The answering op only provides an online platform where third party sellers sell their products and visitors/ buyers purchase such products from the respective sellers on the website/ app out of their own free will and choice. It is further submitted that there is no privity of contract between the complainant and answering op and complainant is not a consumer of answering op. The advertisements with regard to price, specification, quality, description etc. are listed by the seller of the product. It is further submitted that answering op has no role/ involvement in the delivery of the product as the said product was delivered through the seller and there is no relation between answering op and the seller. The answering op assisted the complainant on each and every occasion whenever complainant approached the answering op. It is further submitted that as per information received from the seller, the complainant was informed that the order was cancelled by logistics due to unforeseen reason on 13.10.2022. Hence, the Seller had processed the refund of the amount of product on 13.10.2022 i.e. on the same day and an amount of Rs.25,134/- and Rs.100/- should have been reflected in the credit card of the complainant by 19.10.2022 with reference numbers 74056632287228693008624 and 74056632287228693011602 respectively and complainant has concealed this fact in this complaint and the intention of complainant is only to defame the answering op and extort money in any illegal manner. It is further submitted that answering op has no authority to provide any refund or replacement or delivery of the product sold to the complainant because it is only provided by the seller under its respective policy clauses. In the instant case, the seller has already provided the refund of the product after cancellation of the order by third party logistics due to unforeseen reasons. All other contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
3. The complainant in evidence has tendered her affidavit Ex.C1, emails Ex.C2 to C14, birth certificate of Ms. Gur Asis Kaur daughter of complainant as Ex.C15 and aadhar card of complainant as Ex.C16.
4. The op did not lead any evidence despite availing various opportunities including three last opportunities and as such evidence of op was closed by order.
5. We have heard learned counsel for the parties and have gone through the case file. Written arguments filed on behalf of op which are repetition of written version have also been perused and gone through.
6. The complainant in order to prove her complaint has furnished her affidavit Ex.C1 in which she has reiterated all the contents of her complaint. From the emails Ex.C2 to Ex.C14, it is evident that on 26.09.2022 complainant gave an order to the op for purchase of Samsung Mobile for an amount of 25,234/- and op undertook that said mobile will be delivered on 03.10.2022 as complainant wanted to give gift of mobile to her daughter on her birthday on 06.10.2022. From the emails it is proved on record that said ordered mobile was not delivered to the complainant till 13.10.2022 and ultimately the said order was cancelled. Although, the price of mobile may have been refunded by seller of the product, but the op undertook delivery of the product in question to the complainant but failed to deliver the same despite assurances and has caused mental shock to the complainant as complainant could not give birthday gift to her daughter. All the emails are between complainant and Flipkart and order was also placed with Flipkart but Flipkart i.e. op has failed to deliver the product in question to the complainant despite assurances. Since the op took order from complainant and undertook delivery of the mobile though through seller and then failed to deliver the same and got cancelled the order from seller, therefore, certainly there is deficiency in service on the part of op and op has caused unnecessary harassment and mental shock to the complainant and as such it cannot be said that op is not liable for cancellation of the product because op an online platform also charges its service charges for delivery of the product from seller to the buyer. As such complainant is entitled to compensation for harassment etc. from op.
7. In view of our above discussion, we allow the present complaint and direct the op to pay a sum of Rs.15,000/- as composite compensation for harassment and litigation expenses to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the said amount of Rs.15,000/- from op alongwith interest at the rate of @6% per annum from the date of this order till actual payment. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President,
Dated: 03.06.2024. District Consumer Disputes
Redressal Commission, Sirsa.
