IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 30^th day of July, 2024

Present: Sri. Manulal V.S. President

  Smt. Bindhu R.  Member

Sri.K.M.Anto, Member

C C No. 43/2024 (Filed on 02.02.2024)

O R D E R

Smt. Bindhu R.  Member

The complaint is filed under Section 35 of the Consumer Protection Act 2019.

The case of the complainant is that the complainant ordered a mobile phone Samsung Galaxy S21 FE  with Snapdragon 888 (Graphite 256GB) from Flipkart.com on 7^th October 2023. As there was a cash back offer for users of Flipkart Axis Bank credit card, he used his friends credit card for the payment and thus paid ₹ 32,068/- (Rupees thirty two thousand and sixty eight only) to Flipkart. The order was placed and shipped on 7^th October 23 .The promised date of delivery of the product was 15.10.2023. When the order was tracked  to know its status, the app showed capacity issues, vendor status not configured etc. The complainant contacted the Flipkart customer care they promised that the order would be delivered on 15^th October itself. But though the complainant was available on 15^th October, the opposite party rescheduled the delivery to 21^st  October. The complainant contacted the opposite party several times but the product was not delivered on 21^st October, so the complainant filed a grievance against Flipkart in National Consumer Helpline Portal on 22^nd October 2023 as case number 5067508. Again the complainant contacted the opposite party from 7^th November 2023 to 13^th November 2023 but again he was asked to wait on 13.11.2023 when the complainant called to NCH helpline number he could reach the Flickart team and they again asked to wait for 48 hours. After two days they called again and informed that it was not possible to deliver his order. They asked him to cancel the order and make a new order and sent the order ID to Flipkart so they will give him ₹ 500/- (Rupees five hundred only) on flipkart wallet. The new price on that day for the same product was ₹ 49,999/- (Rupees forty nine thousand nine hundred and nineteen nine only) when the complainant asked them to deliver with the same order ID they refused. The opposite party was trying to make more profit through another order and this is a clear case of unfair trade practice. Even though the complainant’s order was cancelled by Flipkart on 18.12.2023 they had not initiated the refund of the amount. After that when the complainant contacted the customer support several times the refund was credited to the credit card on 28.12.2023. The complainant ordered for the said phone in order to gift it to his aged father and due to the act of the opposite party he had to suffer severe mental agony. The opposite party has made inordinate delay in settling his complaint of non delivery of the mobile phone and this caused him to buy another mobile phone from open market by paying more amount. Thus the unfair trade practice and deficiency in service from the opposite party in not delivering the ordered mobile phone on time and delaying the refund upon the non delivery has caused great loss and mental agony to the complainant and the complaint is filed for a compensation of ₹1,60,340/-(Rupees one lakh sixty thousand three hundred and forty only) 5 times the price of the mobile phone, for redressing his grievances.

Notice to the opposite party was seen served but no appearance was made by the opposite party and no version has been filed.

The complainant adduced evidence vide affidavit in lieu of chief examination along with five documents which were marked as Exhibits A1 to A5.

On the basis of the pleadings and evidence on record we frame the following issues to be answered:-

1. Whether there is any deficiency of service proved by the complainant on the part of the opposite party?
2. If so what are the reliefs and cost?

The case of the complainant is that though he had ordered for a Samsung S20FE 5G mobile phone by paying ₹ 32,068/- (Rupees thirty two thousand and sixty eight only) on 07.10.2023. The same was not delivered and even after the lodging of complaint with the grievance cell they did not deliver the product to the complainant but the complainant was asked to order the same mobile phone  again for ₹ 49,999/- (Rupees forty nine thousand nine hundred and ninety nine only). When the complainant’s order was cancelled the opposite party didn’t return the money they retained for three months. So the complainant had to suffer mental agony and financial loss. As per the Exhibit A1, it is evident that the opposite party has confirmed the order of the complainant for Samsung Galaxy S21 FE 5G with Snapdragon 888 graphite 256GB for ₹ 32,068/- (Rupees thirty two thousand and sixty eight only) on 15.10.2023.Vide Exhibit A3 the opposite party admitted the delay of the delivery of the product due to Logistical constraints and assured that on 21.10.2023 the product would be delivered. But on 22.10.2023 again the opposite party informed the complainant that the product delivery would be delayed. Again on 13.11.2023 the opposite party assured that they would resolve the problem by 17.11.2023. On 29.11.2023 in reply to the complaint of the complainant, the opposite party admitted that the said phone could not be delivered and the complainant should order for a new phone .A gift card worth ₹ 500/- (Rupees five hundred only) would be provided to him. But as the new phone cost ₹ 49,999/- (Rupees forty nine thousand nine hundred and ninety nine only) the complainant was unable to order the same. As per Exhibit A5 document, the  opposite party  again assure the complainant that they would resolve the problem by 30^th December 2023. But as per Exhibit A2 which is the track record of the shipment shows several times that “your order has been picked up by the courier partner” thereafter it shows “capacity issues” on several dates this is repeated and on 18.12.2023 finally the shipment was cancelled.

From the above said documents we find that the opposite party, who was bound to deliver the ordered product after receiving the money, has made inordinate delay in delivery and not even delivered the product after 3 months of waiting. The consumer, who orders a product in expectation of receiving it for fulfilling some of his needs or wishes with the product is put to utter dismay due to the act of the opposite party. Here the complainant had ordered the mobile phone for gifting it to his father due to the non delivery by the opposite party the complainant could not accomplish this and hindered from the complainant was purchase another mobile from the market. Though the opposite party refunded the money, it was after the elapse of 3 months without the mobile phone. Moreover, the opposite party asked the complainant to purchase a new phone of the same model but of a higher rate. The act of the opposite party is clear deficiency of service.

As per section 2 (11) of Consumer Protection Act 2019, “Deficiency” means any fault imperfection shortcoming or inadequacy in the quality nature and manner of performance which is required to be maintained by or under any love for the time being in force or has been undertaken to be performed by a person in persons of a contract or otherwise in relation to any service and includes

(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer and

(ii)deliberate withholding of relevant information by such person to the consumer.

The opposite party though received payment, made inordinate delay of 3 months for the confirmation of non delivery of the phone putting the complainant into untold mental agony which doubled on information that the opposite party was not delivering the same and he should purchase another phone for a higher price. So the complainant is entitled to be compensated.

The opposite parties have not put forward any objection or evidence in contrary and hence we are inclined to answer the two issues in favour of the complainant.

Thus we allow the complaint vide the following order:

1. The opposite party is directed to pay a compensation of ₹ 30,000/- (Rupees thirty thousand only) to the complainant for deficiency in service and mental agony along with ₹ 2,000/-(Rupees two thousand only) as litigation cost.

The order shall be complied within 30 days from the date of receipt of copy of this order failing which the award amount shall carry 9% interest till realisation.

  Pronounced in the Open Commission on this the 30^th day of July, 2024

    Smt. Bindhu R.  Member    Sd/-

    Sri. Manulal V.S, President  Sd/-

    Sri. K.M. Anto, Member      Sd/-

APPENDIX :

Exhibits from the side of the Complainant :

A1     Copy of the loan screenshot of order confirmation.

A2     Copy of the Flipkart app screenshot.

A3     Copy of the Flipkart feedback screenshot.

A4     Copy of the feedback from Flipkart to cancel and reorder the product.

A5     Copy of the escalation done for refund of payment even after Flipkart cancelled the order

Exhibits from the side of the Opposite Parties :

 NIL

By Order,

    Sd/-

                                                                                                     Assistant Registrar