Haryana

Fatehabad

CC/316/2021

Disha Wadhwa - Complainant(s)

Versus

Flipkart Online Services Private Limited - Opp.Party(s)

Rajesh Gandhi

04 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL COMMISSION, FATEHABAD.

Complaint no.316/2021.

Date of instt. 24.12.2021. 

                                                                        Date of Decision: 04.09.2023.

 

Disha Wadhwa wife of Himanshu Rajpal permanent r/o H.No.133-e, Kunj Lal Garden, Hisar (125001) now residing at Shadiram Wali Gali, Thana Road, Fatehabad.

                                                                                                ..Complainant.

                                    Versus

 

Flipkart Online Services Private Limited, having its regional office at A55-12, Street No.55, Chakkerpur, Sector 28, Gurgram-122022 (Haryana) through its Regional Manager.

 

..Opposite party.

 

       Complaint under Section 12 of Consumer Protection Act.                               

 

Before                        SH. RAJBIR SINGH, PRESIDENT.

                                    DR.K.S.NIRANIA, MEMBER

                                    MRS.HARISHA MEHTA, MEMBER.

                       

Present:              Sh.Sunil Kumar Dharnia, Advocate for complainant.

 Sh. Yogesh Gupta, Advocate for OP.

 

    

ORDER

MRS.HARISHA MEHTA, MEMBER

 

                           Briefly stated the facts of the present complaint are that on 21.12.2019 the complainant purchased a mobile Samsung Galaxy S10 for a consideration of Rs.1799/- by placing an online order through opposite party vide order ID No. 201912211000160046 through paytm; that the payment of Rs.1799/- was debited from the bank account of the complainant on 21.12.2019 but after passing a long time the mobile phone has not been delivered to the complainant; that the complainant requested the Op either to deliver the placed order or to refund the amount of Rs.1799/- but it did not pay any heed and further flatly refused to do so.  The act and conduct of the OP clearly amounts to deficiency in service. In evidence, the complainant has tendered her affidavit Ex.CW1/A and documents Annexure C1 to Annexure C5.

2.                     On notice, Op appeared and resisted the complaint by filing reply raising preliminary objections that complainant has suppressed the true and material facts from this Commission and that there is no deficiency in service on the part of opposite party. It has been further submitted that the replying OP provides online marketplace/ platform and other mechanism/ services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods between respective buyers and sellers. The business of op no.1 falls within the definition of an “intermediary”. It has been further submitted that complainant does not fall under the category of consumer OP as there is no privity of contract between the complainant and op as the complainant had not placed any order on the website of OP; that the said offer was fake promotional offer which was shown on paytm as there is no invoice copy of number to show that the order was placed through replying Op. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. The OP in evidence has tendered document Annexure R1.

3.                     We have heard learned counsel for the parties and gone through the written argument placed on behalf of complainant besides perusing the case file carefully.

4.                     The complainant in her duly sworn affidavit has reiterated the pleas taken in the compliant besides placing certain documents such as Annexure C1 (offer on purchasing the mobile Glaxy S10), Annexure C2 (receipt for successfully payment of order ID 201912211000160046), Annexure C3 (broacher qua Big shopping days of OP), Annexure C4 (payment transactions details) and Annexure C5 (copy of complaint lodged by the complainant with the Op qua not receiving any information and product).

5.                     On the other hand the OP has come with the plea that it is only a facilitator and provides online marketplace/ platform and 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 its business falls within the definition of an “intermediary”. It has been further submitted that complainant does not fall under the category of consumer of op as there is no privity of contract between the complainant.

6.                           Admittedly, the OP operates its online market place platform under the brand-name /trademark “Flipkart” through the website i.e www.Flipkart.com  which is an online market place. The website is an electronic platform which acts as an intermediary to facilitate sales transactions between independent third party sellers and independent end customers. The Website enables independent third party sellers to list, advertise and offer to sell their products and services to be users of the Website. Once a user accepts the offer of sale of the products made by the third party seller on the Website, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as set out by the seller as part of the terms for sale displayed on the Website. But in the present case the product in question has never been received by the complainant despite making the payment of Rs.1799/- as is mentioned in (Annexure C2 and Annexure C4), therefore, the complainant has a right to seek refund of the amount so debited from her account for the alleged purchase of mobile. Such like behaviour and practice is not expected from a company which is selling its product through online. It is worthwhile to mention here that the Op is not a charitable trust. In other words, we can say that this act and conduct of the OP falls under unfair trade practice and deficiency in service as defined in Sections 2 (47) of The Consumer Protection Act, 2019. 

7.                   Keeping in view the above facts and circumstances of the case, this Commission has a firm view that the present complaint deserves acceptance because the Op is indulged in unfair trade practice as discussed above. Accordingly, we allow the present complaint with a direction to refund Rs.1799/- to the complainant alongwith interest @ 6 % per annum from the date of filing of the present compliant till its realisation.  The Op is further directed to pay a sum of Rs.2200/- to the complainant on account of mental agony, harassment and cost of litigation. The order be complied within a period of 45 days from today, failing which the awarded amount would carry simple interest @ 9 % per annum from the date of this order till actual payment. 

8.                          In default of compliance of this order, proceedings against respondents shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. This order be also uploaded forthwith on website of this Commission, as per rules, for perusal of parties herein. File be consigned to the record room after due compliance

 

Announced in open Commission.                                                          

Dated: 04.09.2023

                                                                                                        

         

 

          (K.S.Nirania)                    (Harisha Mehta)               (Rajbir Singh)                       Member                                  Member                           President