Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that Opposite Party made proposal by advertising their product “Acer Predator Helios 300 core I 5 8th Gen- (8GB/1TB…Shade Black)” amounting to Rs.59,990/- on Flipkart website and Flipkart app. The son of the complainant was in need of laptop for his educational purposes and the complainant accepted the offer by placing the order and making the payment of Rs.54,990/- through HDFC credit card (got additional discount) on 11.10.2018 vide Flipkart app. The complainant alleges that the Opposite Party revoked the offer by cancelling the order placed by him without any intimation/ communication. Before placing the order, the price, availability and the delivery was confirmed in Moga (142001) and the expected date of delivery of the product was given 19.10.2018. On 13.10.2018 a SMS was received on 13.10.2018 that the product is being dispatched, but the product was not delivered on 19.10.2018. Thereafter, the son of the complainant made call to the customer care centre and they assured that the product will reach by 21.10.2018, but to no affect. Since the son of the complainant was a dire need of the laptop, so the complainant made so many calls time and again, but the product did not reach. The complainant called Opposite Party customer care multiple times to know the reason for the cancellation, but no satisfactory response was received. On 25.10.2018 the complainant received a SMS from the Opposite Party that the order has been cancelled and told the complainant that if the complainant wants to purchase fresh order so make the fresh price of Rs.79,990/-. The son of the complainant had to submit a project on 28.10.2018 at University for which this laptop was needed, but due to non delivery of the laptop, the son of the complainant suffered a lot. As such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the Opposite Party to make the payment of Rs.3.5 lakhs on account of compensation for mental tension, harassment and deficient services due to non delivery and cancellation of order placed by the complainant without any reason or any other relief to which this District Consumer Commission may deem fit also granted.
Hence, the present complaint is filed by the Complainant for the redressal of her grievances.
2. On notice, Opposite Party through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that the complainant has got no locus standi to file the present complaint; that the complaint is absolutely false and frivolous. It is submitted that the Opposite Party only acts as an intermediary i.e. providing the seller and the buyer a platform to do online purchase and sale and other than it, the Opposite Party is not involved in any of other aspect. The product was sold by a registered seller and thereafter the Opposite Party can not be held liable for non delivery of the product in question as the product is sold, packed and delivered by the seller or its agent. The product in question was sold/ packed by a third party seller, which is not impleaded as a party therefore it is clear that Opposite Party has nothing to do with selling of the product or packing of the product and therefore, the complaint should be dismissed for misjoinder of party. The true facts are that the product in issue was duly sent to the address of the complainant but in the transit the product was damaged and therefore, same could not be delivered. Moreover, the answering Opposite Party is only a online portal and does not sells the products itself and hence, there is no deficiency in service on the part of the Opposite Party. On merits, the Opposite Party took up the same and similar pleas as taken up by them in the preliminary objections and hence, it is prayed that the complaint of the complainant is liable to be dismissed with special costs.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C8 and closed his evidence.
4. On the other hand, initially Sh.Ajit Verma, Advocate appeared on behalf of the Opposite Party and filed written statement, but lateron said counsel made statement that he has no instruction from his client to pursue the matter further and thereafter, the Opposite Party was directed to appear and pursue the matter, but none has come present on behalf of the Opposite Party and vide order dated 11.11.2021 the Opposite Party was proceeded against exparte.
5. We have heard the complainant and also gone through the documents placed on record.
6. The complainant has mainly reiterated the facts as narrated in the complaint and contended that Opposite Party made proposal by advertising their product “Acer Predator Helios 300 core I 5 8th Gen- (8GB/1TB…Shade Black)” amounting to Rs.59,990/- on Flipkart website and Flipkart app. The son of the complainant was in need of laptop for his educational purposes and the complainant accepted the offer by placing the order and making the payment of Rs.54,990/- through HDFC credit card (got additional discount) on 11.10.2018 vide Flipkart app. The complainant alleges that the Opposite Party revoked the offer by cancelling the order placed by him without any intimation/ communication. Before placing the order, the price, availability and the delivery was confirmed in Moga (142001) and the expected date of delivery of the product was given 19.10.2018. On 13.10.2018 a SMS was received on 13.10.2018 that the product is being dispatched, but the product was not delivered on 19.10.2018. Thereafter, the son of the complainant made call to the customer care centre and they assured that the product will reach by 21.10.2018, but to no affect. Since the son of the complainant was a dire need of the laptop, so the complainant made so many calls time and again, but the product did not reach. The complainant called Opposite Party customer care multiple times to know the reason for the cancellation, but no satisfactory response was received. On 25.10.2018 the complainant received a SMS from the Opposite Party that the order has been cancelled and told the complainant that if the complainant wants to purchase fresh order so make the fresh price of Rs.79,990/-. The son of the complainant had to submit a project on 28.10.2018 at University for which this laptop was needed, but due to non delivery of the laptop, the son of the complainant suffered a lot. As such, there is deficiency in service on the part of the Opposite Party.
7. On the other hand, in is written version, the Opposite Party has repelled the aforesaid contention of the complainant on the ground that the Opposite Party only acts as an intermediary i.e. providing the seller and the buyer a platform to do online purchase and sale and other than it, the Opposite Party is not involved in any of other aspect. The product was sold by a registered seller and thereafter the Opposite Party can not be held liable for non delivery of the product in question as the product is sold, packed and delivered by the seller or its agent. The product in question was sold/ packed by a third party seller, which is not impleaded as a party therefore it is clear that Opposite Party has nothing to do with selling of the product or packing of the product and therefore, the complaint should be dismissed for misjoinder of party. The true facts are that the product in issue was duly sent to the address of the complainant but in the transit the product was damaged and therefore, same could not be delivered. Moreover, the answering Opposite Party is only a online portal and does not sells the products itself and hence, there is no deficiency in service on the part of the Opposite Party.
8. From the appraisal of the evidence on record, it becomes evident the complainant has placed an order for the laptop i.e. product “Acer Predator Helios 300 core I 5 8th Gen- (8GB/1TB…Shade Black)” amounting to Rs.59,990/- on Flipkart website and Flipkart app and for this, he made the payment of Rs.54,990/- through HDFC credit card (got additional discount) on 11.10.2018 vide Flipkart app and hence, the complainant falls under the definition of Consumer under the Consumer Protection Act, 2019. The case of the complainant is that son of the complainant was dire need of the laptop and as per the advertisement of the Opposite Party, he placed on order for the laptop on discounted price of Rs.54,990/- on 13.12.2019 and for this the Opposite Party also assured to send the said product 19.12.2021. It is further contended that on 13.10.2018 a SMS was received from the Opposite Party that the product is being dispatched, but the product was not delivered on 19.10.2018. Thereafter, the son of the complainant made call to the customer care centre and they assured that the product will reach by 21.10.2018, but to no affect. Since the son of the complainant was a dire need of the laptop, so the complainant made so many calls time and again, but the product did not reach. The complainant called Opposite Party customer care multiple times to know the reason for the cancellation, but no satisfactory response was received. On 25.10.2018 the complainant received a SMS from the Opposite Party that the order has been cancelled and told the complainant that if the complainant wants to purchase fresh order so make the fresh price of Rs.79,990/-. On the other hand, the main contention of the Opposite Party in its written reply is that the product in issue was duly sent to the address of the complainant but in the transit the product was damaged and therefore, same could not be delivered. But we are of the view that there is deficiency in service and unfair trade practice on the part of the Opposite Party and this act of the Opposite Party has caused lot of mental agony, harassment, inconvenience because the son of the complainant was dire need of the product and due to non receipt of the said product, he must have suffered. To corroborate his aforesaid assertion, the Complainant has placed on record his duly sworn affidavit Ex.C1 alongwith copy of order detail Ex.C2, copy of order shipping detail Ex.C3, copy of seller processed order detail Ex.C4, copies of letters Ex.C5 to Ex.C7, copy of transaction of making the payment of Rs.54,990/- to the Opposite Party Ex.C8. Not only this, with regard to loss incurred due to non supply of the goods, the complainant has sought compensation to the tune of Rs.3.5 lakhs on account of mental tension and harassment caused in the hands of the Opposite Party and cited judgement of Hon’ble Supreme Court of India titled as Patel Roadways Ltd. Vs. Birla Yamaha Ltd. III (2000) SLT 554-II (2000), CLT 83 (SC), 1(2000) CPJ 42 (SC) 2000 (4) SCC, 91 in this judgement Hon’ble Supreme Court of India held that “loss of goods or injury to goods or non delivery of goods, entrusted to a common carrier for carriage, would amount to a deficiency in service and, therefore, a complaint under the Consumer Protection Act, would be maintainable. When a person entrusts a goods to a common carrier for transportation and the carrier accepts the same, there is a contract for ‘service’, within the meaning of CP Act. Therefore, when the goods are not delivered, there is a deficiency of service.” The aforesaid evidence produced by the complainant has gone unrebutted and unchallenged through any cogent and convincing evidence on record as the Opposite Party did not opt to appear and contest the proceedings lateron after filing the written reply. In this way, the Opposite Party has impliedly admitted the correctness of the allegations made in the complaint. It also shows that Opposite Party have no defence to offer or defend the complaint.
9. So, from the entire unrebutted and unchallenged evidence produced by the complainant on record, it stands fully proved on record that the Opposite Party has adopted unfair trade practice and deficiency in service by not delivering the goods. On this count, the Complainant has prayed for compensation for causing him mental tension and harassment to the tune of Rs.3.5 lakhs but we are of the view that the claim for compensation to the tune of Rs.3.5 lakhs appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. It is not disputed that the Opposite Party has refunded the payment of Rs.54,990/- to the complainant directly to his bank account on October 25, 2018 with reference number: 829819106302 and the same was credited in the account of the complainant, as per letter written by Opposite Party to the complainant, copy of which is placed by the complainant himself as Ex.C7.
10. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.5,000/- on account of compensation for causing him mental tension and harassment besides difference of the price of laptop i..e Rs.25,000/- because the complainant made the payment of Rs.54,990/- and after cancellation of the said product, its fresh price was Rs.79,990/- and on this count, we award the difference price only.
11. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against the Opposite Party and the Opposite Party is directed to make the payment of Rs.30,000/- (Rupees thirty thousands only) i.e. Rs.25,000/- on account of difference of price of laptop in question and Rs.5,000/- on account of lumpsum compensation to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 04.12.2019 ill its actual realization. The Compliance of this order be made by the Opposite Party within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.
12. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 01.02.2022.
