Delhi

East Delhi

CC/152/2016

NISHU - Complainant(s)

Versus

FLIPKART - Opp.Party(s)

10 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. NO.  152/16

 

Sh Nishu

S/o Shri Badri Narayan,

R/o 182, Yadav Nursing Home

Guru Ram Dass Nagar, Laxmi Nagar,

Delhi- 110092                                             

….Complainant

Vs.

Flipkart

6/B, Mahatyagi Laxmi Devi Road,

Koramangala, 1A-Block,

Koramangala 3-Block,

Koramangala, Bangaluru,

Karnataka-560034                                                                                      …Opponent

 

Date of Institution: 30.03.2016

Judgement  Reserved on: 10.01.2019

Judgement  Pronouced on: 25.01.2019

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By Harpreet Kaur Charya (Member)

 

Judgement

          Jurisdiction of this forum has been invoked by Shri Nishu, the complainant against Flipkart (OP) with the allegations of deficiency of services. Briefly stated the facts of the present complaint are that the complainant purchased one HTC 728G handset on 07.03.2016 from OP, which was delivered to the complainant on 16.03.2016. The said order was placed online and the complainant found that some other model had been delivered, from what was ordered, for which the OP was informed immediately. The complainant had stated that he was assured by OP that the handset would be replaced according to the satisfaction of the complainant by 22.03.2016, which was only done on 25.03.2016. The complainant has further stated that again the consignment delivered contained used handset different from what was ordered without the facility of earphone. The OP was  again informed immediately where the complainant was told that his complaint would be escalated to the seniors but, the complainant received a mail where it was mentioned that neither the payment of the complainant could be refunded nor the handset could be replaced.

Feeling harassed the complainant has filed the present complaint seeking directions to OP to refund Rs. 12,860/- towards the cost of handset, Rs. 2,00,000/- as compensation for wastage of his precious time; Rs. 2,00,000/- as compensation on account of mental harassment and agony as well as litigation expenses.

            The complainant has annexed retail invoice dated 18.03.2016, order confirmation mail of dated 07.03.2016, request for return dated 16.03.2016, updated dated 22.03.2016 and several other mails exchanged between the complainant and the OP,  alongwith the complaint.

2.         Notice of the present complaint was issued to the OP, thereafter, the reply was filed, where they have taken several pleas in their defence such as: the complaint was bad for non-joinder of necessary parties as the complainant had failed to implead the seller “Shri Rajani Communication based in Bangalore” as a party. The complaint was a case of miss-shipment; the OP was a mere facilitator/ market place where third party vendors registered themselves and listed their products and offered the said product for sale. It was submitted that OP acts solely an intermediary as defined under section 2(1) (w) of the Information Technology Act, 2000. Thus, the complainant’s allegations did not have any footing. It was further submitted that as it was a case of miss-shipment the onus of any refund/ replacement qua the same was on the seller, who had not been impleaded as a party. Thus, being an intermediary no deficiency in service could be attributed to them. Therefore, the complaint deserved dismissal and rest of the contents of the complaint have also been denied.

3.         In the Rejoinder to the statement filed on behalf of the OP, the complainant had denied the submissions made by them in their reply and has reiterated the contents of the complaint. It was submitted that the OP had advertised the matter and had mentioned the word; “F-assured”, which meant that the OP was wholly responsible for the business through online. It was further submitted that OP cannot claim immunity under Section 79 of the Information Technology Act, 2000 as the OP being an intermediary had conspired/ abetted/ induced whether by threat or promise or otherwise  in commission of lawful act.

Evidence by way of affidavit was filed by the complainant, where he has got himself examined and has reiterated the contents of the complaint on oath and has got exhibited the copies of the invoice dated 07.03.2016 and e-mails as Ex. PW-1/E (Colly.)

 

Shri Satyajeet Bhattacharya, was examined on behalf of OP who has also affirmed the contents of their written Statement on oath.

We have heard the arguments on behalf of the Ld. Counsel for Complainant and Ld. Counsel for OP and have perused the material placed on record. The complainant has alleged that he has placed order of the handset with OP where he was delivered a different product from what was ordered, which was eventually replaced after compliant. The Replaced product was also stated to be used and different from what had been originally ordered by the complainant. If we look at the invoice dated 18.03.2016 it bears the name of the seller as “Sri Rajani Communication” as the seller and as per the delivery confirmation of order vide e-mail dated 25.03.2016 the column under  Seller Details bears “Sanscell”, which is also reflected from e-mail dated 28.03.2016. The complainant has not made seller a party ,further, the complainant has also not placed any service report or job sheet on record to support his allegations that the replaced handset was different from what was ordered and at the same time was “Used”. It is a settled principle of law that the complaint should stand on its own feet and merely relying on the fact that the order was placed with OP cannot hold them responsible for deficiency in services. Further, the complainant has not filed any document to show that the product carried an endorsement of being “F-assured”, therefore, no liability can be fastened on OP, as they are merely an intermediary.

Hence, the present complaint is dismissed being devoid of merits without order to cost.

Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                                    (HARPREET KAUR CHARYA)     Member                                                                            Member

 

(SUKHDEV SINGH)

          President