BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.267/2017.
Date of instt. 11.10.2017.
Date of Decision: 09.04.2018.
Parshant Sharma son of Sh.Dulichand Sharma, resident of Gita Colony, Sirsa Road, Fatehabad Tehsil & District Fatehabad Haryana.
..Complainant.
Versus
1.Flipkart Internet Private Limited Ozone Manay Tech Park, #56/18 & 55/09, 7th Floor, Garvebhavipalaya, Hosur Road, Bangalore 560068 Karnatka Through its Director.
2.Ecom Express, DSP Road, Near Khema Khati Chowk, Fatehabad through its Manager.
..Opposite parties.
Complaint under Section 12 of Consumer Protection Act.
Before Sh. Raghbir Singh, President.
Sh.M.K.Khurana, Member.
Present: Sh.Rohtash Bishnoi, Advocate for complainant.
Sh.Yogesh Gupta, Advocate for OP No.1.
Opposite party no.2 exparte.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs) with the averments that during the festival season OP no.1 offered for selling a mobile make Infinics not 4 in Rs.7200/- in place of Rs.9000/-. The OP no.1 also made an offer for home delivery of the above said product. Upon this the complainant placed an order No.OD110285591555800000 for purchased of the above said product and made a payment of Rs.7200/-. It is also further submitted that the complainant was offered by OP no.1 that OP No.2 who is courier company of Op No.1 shall deliver the above said product on the address of the complainant and the complainant was informed that the above said product will be delivered to him on 3rd October, 2017. However on 26th September, 2017 the complainant got a message that the order placed by him regarding the above said product has been cancelled and the amount of Rs.7200/- paid by the complainant will be refunded to him. Thereafter the complainant visited to Op No.2 and inquired about the delivery of the order and it was informed by OP no.2 that the product was delivered in his office but the complainant did not come to OP no.2 for receiving the same and such the order was cancelled.
2. Since the product as ordered by the complainant was not delivered by the OPs as such the complainant had to purchase the same product in Rs.9000/- from the market and the complainant has suffered a loss of Rs.1800/-. It is further submitted that the above said act on the part of OPs amounts to deficiency and unfair trade practice in rendering service to him. Hence, the present complaint.
3. On being served Op No.1 appeared through its counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to concealment of material facts, maintainability, cause of action, locus-standi etc., have been raised.
4. In reply on merits, it is submitted that the complainant purchased a mobile handset in question on the basis of offer made by Op No.1 is completely false, fabricated and as such the same is denied. The OP No.1 is neither a seller nor manufacturer of the product in this case. The product purchased by the complainant was sold by an independent 3rd party. The OP no.1 only provides an on-line plate-form where 3rd party seller sell their products and the buyers purchase such product form the respective seller on website out of their own will or choice. The product was to be delivered by seller of the product and not by Op no.1. Moreover OP no.1 does not advertise its product on its own. It is the manufacturer of the product who advertise for their products.
5. It is further submitted that any information forwarded to the complainant is based upon information or confirmation received from the seller of the product and no information is provided by OP No.1 on its own. It is also submitted that delivery of the product is sole responsibility of the seller through its courier partner i.e. Op No.2. OP no.1 has no role to play in the entire transaction of sale and purchase and as such the Op no.1 cannot be held liable for any deficiency in service to the complainant and as such the present complaint is liable to be dismissed.
6. In evidence, the complainant tendered his affidavit as Ex.CW1/A and the documents as Annexures A-1 to A-9. On the other hand, Sh.Satyajeet Bhatacharya filed an affidavit as Annexure R-1 in evidence and closed the evidence.
7. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of the complainant that a mobile handset was booked by him on-line on 21.10.2017 for Rs.7200/- on discount. But the said product was not delivered to him and the order was cancelled on 26.10.2017 without any prior intimation to the complainant. Therefore the complainant had to purchase the said product in Rs.9000/- without discount from the market and as such the complainant has suffered a loss of Rs.1800/-. The above-said act on the part of OPs amounts to deficiency and unfair trade practice in rendering service to him. Therefore the complainant is entitled for recovery of Rs.1800/- from the OPs along-with compensation.
8. On the other hand it is the case of OP no.1 that it is not seller of the product and merely an on-line intermediary to facilitate sale transactions between third party seller and independent customers and once a buyers accepts the offer of sale of the products made by the third party seller on the flipcart plateform the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms. It is further the case that OP No.1 is protected by provisions of Section 79 of Information and Technology Act of 2000. Contract of sale is a bipartite contract between the seller and the buyer only and OP no.1 is not a party to it. The Op No.1 has no role in supply or delivery of the product sold by an independent seller sold through the web-site of Op No.1.The Department of Industrial Policy and Promotion Ministry of Commerce and Industry Government of India has clarified that seller is responsible for delivery of goods to the consumer.
9. It is also the case of the OP no.1 that after receiving request from the complainant an internal investigation as conducted with the seller as well as with Op no.2 herein and it was confirmed by the seller that dispute several attempts the OPs No.2 could not deliver the product to the complainant and the order was cancelled.
10. After considering the arguments advanced by the learned counsel for the parties we are of the view that complainant has not made any efforts to collect the item i.e. phone from the OPs through it was in very knowledge of the complainant that the same has been dispatched by the OPs and also the movements of the same were also in his knowledge. Moreover the complainant has not raised any objections, on receiving back the also not refund money from the OPs. The seller of the product has been impleaded as party.
11. So keeping in view the above facts, we are of the considered opinion that the OPs are not deficient in providing the service. So the complainant is devoid of merit and the same is dismissed with no order as to costs. Copy of this order be communicated to the parties free of costs. File be consigned to the record after due compliance.
Announced in open Forum:
Dt.09.04.2018. (Raghbir Singh)
President,
District Consumer Disputes (M.K.Khurana)
Redressal Forum, Fatehabad.
Member
