Date of Filing 20.04.2023

                                                                                                            Date of Disposal: 30.10.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

                THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                               ……MEMBER-I

CC.No.45/2023

THIS MONDAY, THE 30^th DAY OF OCTOBER 2023

Mr.K.Mohamed Rabeek,

3F-5, DABC Mithilam Apartment,

Sriram Nagar Main Road,

Nolamber, Chennai 600 095.                                                                 ......Complainant.

                                                                                        //Vs//

1.Flipkart Internet Private Limited,

   Rep. by its Managing Director,

   Devarabeesanahalli,

   Bellandur Buildings Alyssa,

   Outer Ring Road,

   Bengaluru -560 103.

2.SANE Retails Private Limited,

   Rep. by its Managing Director,

   Marasandra and Madnahatti-

   Venkatapura Village,

   Kasaba Hobli, Malur Taluk,

   Kolar District, Karnataka 563 130.                                             .…..Opposite Parties.

Counsel for the complainant                                    :  M/s.J.Satheesh, Advocate.

Counsel for the 1^stopposite party                            :  Mr.S.Sushil Kumar, Advocate.

Counsel for the 2^nd opposite party                          :  Exparte.

This complaint coming before us on various dates and finally on 16.10.2023 in the presence of M/s.J.Satheesh, counsel for the complainant and Mr.S.Sushil Kumar, counsel for the 1^stopposite party and 2^nd opposite party was set exparte for non-appearance and for non-filing of written version and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with regard to selling of the Mobile Phone to the complainant along with a prayer to refund the sum of Rs.57,269/- being the purchase price of Apple I-Phone 13 (Blue 128 GB) model or to replace the same by providing new Apple I-Phone 13 (Blue 128 GB) model to the complainant, to pay a sum of Rs.2,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.30,000/- towards litigation expenses.

Summary of facts culminating into complaint:-

2. Complainant case was that he ordered an Apple I-Phone 13 (Blue 128 GB) model for a value of Rs.57,269/- through the 1^st opposite party on 09.10.2022 and the same delivered on 11.10.2022.  While opening the Box by the delivery man, the complainant found that some scratches and defects in the mobile phone.   It was duly video-graphed by the complainant. The delivery man also himself found and accepted the scratches and defects in the mobile phone.  The delivery man informed the complainant that since the box was opened, he could not take back the same and asked the complainant to return the same to the 1^st opposite party and get replacement or refund of the cost. Complainant immediately called the customer service cell of the 1^st opposite party and informed the same.  The customer service executives assured that replacement would be done in three days.  Since there was inaction, the complainant had again called the customer care cell but he was informed that his request was rejected without any reason.  The return or replacement policy period still existed till 20.11.2022. Complainant sent several emails dated 14.10.2022 and 17.10.2022 with the pictures and video-clip attachment to the 1^st opposite party showing the scratches and defects. It was submitted that the web-site of Flipkart provides a candid assurance to the customers that they would exchange mobile phone with broken screens or scratches or other body damages within a period of one week.  But, it has not been adhered by the 1^st opposite party in reality and as such, such assurance has been postulated only to lure and cheat the customers.  When the product was damaged or defective with it is arrived or delivered to the customer, it was the responsibility of the 1^st opposite party to replace the product.  The 2^nd opposite party being the registered seller of the said I-Phone is also equally liable for the deficiency in service and the losses sustained by the complainant. The 1^st opposite party not only demonstrated total negligence but also engaged in unethical practice at the suffering of financial loss as well as mental trauma to the complainant. Thus aggrieved by the act of the opposite parties the present complaint was filed to refund the sum of Rs.57,269/- being the purchase price of Apple I-Phone 13 (Blue 128 GB) model or to replace the same by providing new Apple I-Apple 13 (Blue 128 GB) model to the complainant and to pay a sum of Rs.2,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of Rs.30,000/- towards litigation expenses.

The crux of the defence put forth by the 1^stopposite party:-

3. The whole grievance of the complainant pertains to delivery of the alleged defective mobile phone of the complainant.  The fact needs to be recorded that the complainant was making all false stories against the 1^st opposite party. The 1^st opposite party merely operates an online platform on which independent third party sellers lists and sells their products. The products purchased by the buyers were sold and supplied by independent sellers through independent third party logistics service providers. The 1^st opposite party had no role to play in the transaction entered between the seller and the buyer.  It was pertinent to note that the product was purchased from the third party seller, the 2^nd opposite party i.e. Sana Retails Private Limited and the same was evident from the copy of Tax Invoice attached by the complainant himself in the present case. This independent third party seller sold the product to the complainant and supplied it to the complainant through third party logistic service provider. When the complainant raised its grievance with the 1^st opposite party the same was duly intimated to the seller.  However, seller has confirmed that the right product in intact condition had been delivered by him and the seller himself has rejected the return request raised by the complainant. The 1^st opposite party was not responsible for delivery/return/replacement of the product since it never came into possession of the product anytime during the entire transaction. The 1^st opposite party was protected by the provisions of Section 79 of the Information Technology Act, 2000. Moreover, Section 5(1) of Consumer Protection (E-commerce) Rules, 2020 also provides for exemption to marketable e-commerce entity under sub section 1 of Section 79, who complies with sub-section (2) and (3) of that section. Any kind of assurance whether in terms of warranty on the products, price, Discounts, Promotional Offers, Delivery, after sale service or otherwise were offered and provided by the manufacturer or the respective sellers of the products sold on Flipkart platform. The 1^st opposite party neither offers nor provides any assurance or offers return, replacement or refund to the end buyers of the product.  Further it was the seller of the product who provides Refund/replacement of the product as per the Refund/Replacement policy of the platform. Furthermore the Department of Industrial Police & Promotion, Ministry of Commerce & Industry, Government of India vide its Press Note No.3 (2016series) in clause 2.3 (viii) had clarified that in a marketplace model of e-commerce (such as Flipkart.com) any warranty/guarantee of goods and services sold by responsibility of the seller. The users of the Flipkart platform are bound by the Terms of use enumerated on the Flipkart platform which clearly states that the contract of sale was a bipartite contract between the buyer and the seller only and the 1^st opposite party was not a party to it. The present complaint was false, frivolous and misleading hence denied. Thus they sought for the dismissal of the complaint.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A8 were submitted. On the side of 1^stopposite party proof affidavit was not filed and hence their side evidence was closed on 04.09.2023. Though notice was received by the 2^nd opposite party he did not appear and did not file any written version and hence he was called absent and set exparte on 11.07.2023 for non-appearance and for non-filing of written version within the mandatory period as per the statute.

Points for consideration:-

1. Whether the opposite parties 1 & 2 had committed deficiency in service with regard to the selling of the product i.e. Mobile Phone to the complainant and whether the same has been successfully proved by the complainant by admissible evidence?
2. If so whether the 1^st opposite party being an intermediary could be imposed any liability?
3. To what reliefs the complainant is entitled?

5. Point Nos.1&2:-

The following documents were filed on the side of complainant in support of his contentions;

1. Tax Invoice dated 09.10.2022  was marked as Ex.A1;
2. Electronic evidence (CD) was marked as Ex.A2;
3. Email series from complaint to opposite party was marked as Ex.A3;
4. Screen shots between complainant and 1^st opposite party in Flipkart website was marked as Ex.A4;
5. Legal notice issued by the complainant to the 1^st opposite party dated 29.10.2022 was marked as Ex.A5;
6. Reply notice from the 1^st opposite party to  the complainant dated 18.01.2023 was marked as Ex.A6;
7. Legal notice issued by the complainant to the opposite parties with postal receipt was marked as Ex.A7;
8. Returned RPAD cover of 2^nd opposite party as refused was marked as Ex.A8;

            6. Heard learned Counsel appearing for the complainant.  Though the 1^st opposite party filed written arguments he did not adduce any oral arguments inspite of sufficient opportunities provided to him and hence the written arguments submitted by the 1^st opposite party was considered for deciding the complaint on merits. 

7. The crux of the complainant’s arguments is that he purchased an Apple I-Phone 13 (Blue 128 GB) model from the 1^st opposite party for a sum of Rs.57,269/-The product was opened by the delivery man which was video-graphed by the complainant and it was found that the product/I-Phone contains various scratches and defects and seems to have used by somebody earlier.  When the complainant asked the delivery man about the replacement he wanted the complainant to approach the 1^st opposite party. Though the 1^st opposite party on approach by the complainant assured replacement that it would be done in 3 days did not comply the same.  Several emails were sent to both parties along with video-graphs but no action was taken by both parties. Thus he sought for the complaint to be allowed as prayed for. 

8. The crux of the written arguments filed by the 1^st opposite party is that they are an electronic marketplace model E-commerce platform who acts as an intermediary to facilitate the sale transactions between third party sellers.  Being an intermediary they were no way responsible and they did not provide any assurance or promise to the purchaser of the product.  Submitting that the complainant failed to prove any cause of action against the 1^st opposite party under the Consumer Protection Act, 2019, the 1^st opposite party sought for the dismissal of the complaint citing provisions from various statutes.

9. We perused the pleadings and material evidences produced by both parties. It is sufficiently pleaded and established that the complainant had received the product from the 1^st opposite party with scratches and defects and that the return or replacement policy period existed till 21.10.2022 as the delivery was made on 11.10.2022.  The allegations as to scratches and defects in phone not disproved by opposite parties. Emails submitted by the complainant sufficiently proved that the complainant had approached the 1^st opposite party seeking for replacement.  Ex.A4 is the reply sent by the 1^st opposite party that they are unable to replace which was also filed by the complainant dated 19.10.2022.  The only defence raised by the 1^st opposite party is that they being an E-commerce platform they are not responsible for the replacement of the products even it is found defective.  However, the said defence is not acceptable for the reason that it has been held recently in various decisions rendered by National Consumer Disputes Redressal Commission and State Consumer Disputes Redressal Commissions that the e-commerce platform cannot escape their liability citing Information Technology etc. and other statutes.

10. The Tripura State Consumer Disputes Redressal Commission, Agartala in Sri Animesh Baidya Vs Amazon Seller Services Private Ltd. Vide order dt 30.07.2021, had discussed elaborately the liability of e-commerce platforms after considering various decisions and held as follows;

"13. In Vishwajit Tapia (surpa), the Honble State Commission, Punjab considered the Section 79 of the Information and Technology Act, 2000 and ultimately, held as under:-

14. Section 79 of the information and Technology Act, 2000, is a safe harbour provision subject to restrictions imposed in sub- sections (2) and (3) thereof. If an online intermediary has specific knowledge or has reasonable belief based on information supplied by the right hold about the contents and the intermediary fails to act despite such knowledge, online intermediary infringement. To prove actual knowledge obviously is very difficult. E-commerce portal is required to identify and report infringement. Suppose the HP informs an intermediary that it does not manufacture and sell mobile covers, thus, all products on its portal are counterfeit and must be removed. On that basis e-commerce portal/intermediary can insist that it must provide specified URL to act upon the request, internet Protocol (in short, "IP.) owner will need to put resources to constantly monitor online space and to report to the intermediary seeking its removal. Amazon has become a place where we can get everything quickly and have it delivered in 2 days. The products are coming from third-party sellers ie. products sold on Amazon marketplace merchants. Amazon marketplace serves as a sort of newspaper classified advertisements section, connecting potential consumers with the sellers in an efficient, modern and in a streamlined manner. Amazon places products on its shelves to the stream of commerce. Nowadays, the brands are warning consumers against purchasing products online.

15. Admittedly, users carry out activities on market place platform of the portal. Thus, they play an active role in facilitating the infringement conduct. Apparently, online marketplace operator portals appear to be responsible for infringements carried out by the users on their platform t is a very crucial and debatable issue. The liability and exemption of W the e-commerce portal acting as hosting service provider, in relation to posting of information provided by the recipients of its services, needs to and the A facts of present be examined in the light of statutory provisions consumer complaint”.

Further, the money (Consideration) was paid only to the opposite party who received it on behalf of the seller.  Hence the purchaser of the product can very well be considered as a consumer with respect to 1^st opposite party and the 1^st opposite party as a ‘Service Provider’ as per the definitions of the Consumer Protection Act and liability could be fixed upon them.

11. In the above judgment it has been clearly established that online platforms are also liable for supply of defective product.  Further under the return policy found in Ex.A1 the Tax Invoice issued by the 2^nd opposite party who is the seller has mentioned as follows;

“Return Policy: At Flipkart we try to delivery perfectly each and every time.  But in the off-change that you need to return the item, please do so with the Original Brand Box/Price Tag, Original Packing and Invoice without which it will be really difficult for us to act on your request.  Please help us n helping you.  Terms and conditions apply”.

12. Thus it is clearly established that return policy was also available which fact  was clearly pleaded by the complainant that the replacement policy period existed till 21.10.2022 and complaints and request for replacement was made immediately after the delivery of the product on 11.10.2022.  The complaints made through email clearly established that the complainant had approached the 1^st opposite party within the replacement policy period.  The arguments of the complainant that the website of Flipkart provides a candid assurance to the customers that they would exchange mobile phones with defects within a period of one week has to be taken for consideration as rightly pointed out by the complainant.  The 1^st opposite party could not take shelter under the exemption clause under Information Technology Act.

13. The National consumer disputes Redressal Commission order passed in first Appeal No.27/2017 in Amazan Seller Services Private Limited Vs Gopal Krishnan in first Appeal No.27/2017 has clearly held in a similar facts of case that it was the bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality and also that if the goods not found upto the satisfaction of the customers they cannot escape their liability.  Further the liability was fixed observing as under

An agent, who sells a product, is duty bound to ensure its quality and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product.  It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Private Limited & Anr Vs Kamer Chand & Anr.  Revision petition No.765/2016 decided on 30.03.2016.

14. The said view was endorsed in various other decisions also.  In such facts and circumstances when the defects of the product is well established by the complainant and the liability of the opposite parties 1 & 2 being an agent and seller respectively the onus of the complainant to establish his case was discharged satisfactorily. 

15. The 2^nd opposite party being the seller of the product did not appear and disprove the contentions of the complainant that the product delivered to him was found with certain defects.  The non appearance by the 2^nd opposite party strengthens the allegations of the complainant that the product was a used product with scratches and defects.

16. Therefore the 1^st opposite party being an Agent and the 2^nd opposite party being the seller of the product are responsible to replace the defective mobile phone supplied to the complainant.  When they failed to do so it clear amounts to deficiency in service.  Thus we hold both opposite parties committed deficiency in service and the same was successfully proved by the complainant. Thus we answer the points accordingly in favour of the complainant and as against the opposite parties.

Point No.3:-

17. As we have held above that both the opposite parties had committed deficiency in service and both liable for replacement of the defective mobile phone we direct the opposite parties 1 & 2 jointly and severally to refund the purchase price of Rs.57,269/- within six weeks from the date of receipt of copy of this order.  Further we direct them to pay a sum of Rs.50,000/- towards compensation along with cost of Rs.10,000/- towards litigation expenses to the complainant. Thus we answer the point accordingly.

In the result, the complaint is partly allowed against the opposite parties1 & 2 directing them jointly and severally

a) To refund the purchase price of the Apple I-Phone 13 (Blue 128 GB) model Rs.57,269/- (Rupees fifty seven thousand two hundred and sixty nine only) to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 30^th day of October 2023.

      -Sd-                                                                                                                     -Sd-

MEMBER-I                                                                                                          PRESIDENT

List of document filed by the complainant:-

List of documents filed by the 1^stopposite party:-

-Nil –

       -Sd-                                                                                                                        -Sd-

MEMBER-I                                                                                                           PRESIDENT