DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 91 of 2020.

 

1. Sri Jayanta Chowdhury,

S/O.-Sri Digendra Choudhury,

Of Vill.-K. K. Nagar, Bishalgarh,

P.O.- K. K. Nagar, P.S.-Bishalgarh,

Pin-799102, Dist.- Sepahijala Tripura …......…...........Complainant.

 

-VERSUS-

 

 

1. Flipkart

Block B (Begonia), Ground Floor, Embassy tech Village,

Outer Ring Road, Devarabeesanahalli village, Varthur

Hobli, Bangaluru East Taluk, Bangaluru District,

Karnataka, India, P.O.-Bellandur,

Pin-560103.

 

2. E-kart Logistics,

Brigade Manage Court, 1st Floor, No.111,

Koramangala Industrial Layout, 

Bangalore-560095, Karnataka, India.....................Opposite parties.

 

 

    __________PRESENT__________

 

 SRI RUHIDAS  PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

SRI SAMIR  GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA. 

 

C O U N S E L

 

For the Complainant : Sri Kumar Sankar Sarma,

  Sri Diptanu Debnath,

  Advocates. 

 

For the O.Ps. : Sri Kajal Nandi,

  Advocate.

 

JUDGMENT  DELIVERED  ON: 04/04/2022.

J U D G M E N T

The complainant Sri Jayanta Chowdhury,  set the law in motion by presenting the petition U/S 35 of the Consumer Protection Act, 2019 complaining deficiency of service committed by the O.P.  

  The complainants' case, in brief, is that the Complainant on 24/09/2020 had booked one VEGA crux Motorsports helmet, size-58 (Black Color) amounting to Rs.1215/-(Rupees One thousand Two hundred Fifteen) by way of cash on delivery from Flipkart Company through online portal(O.P.) which was order ID No.OD119776555314230000 dated 24/09/2020.  Thereafter, the Flip kart delivered one parcel before the Complainant having ID. No.OD119776555314230000 dated 24/09/2020 and one nos. of retail invoice was affixed over the said parcel. Then after opening the said parcel the Complainant saw that a wrong helmet was delivered to the Complainant which the price of the delivered items was Rs.917/-(Nine hundred Seventeen) only. Thereafter, the Complainant through online requested to the O.P. for replace the said this wrong helmet and sent the exact order of “VEGA crux Motorsports helmet, size-58 (Black Color)” which was booked on 24/09/2020 but the O.P. rejected the request. In the order details it was clearly mentioned that 'return policy ended on Oct 10' and the Complainant sent the last request for return on 09/10/2020, after that the request was rejected.  The complainant in his complaint has alleged that he has been cheated by the O.P. Due to the deficiency of service and unfair trade practice committed by the O.P. the Complainant asserted that he has suffered mental agony, hardship and pains apart from financial loss. He thus filed this case praying for cost of the VEGA crux Motorsports helmet, size-58(Black Color) amounting to Rs.1215/-, Rs.40,000/- for deficiency of service, suffering hardship, agony, distress, pain etc. suffered by him and Rs.20,000/- being the cost of the litigation cost, in total  Rs.61,215/-.  

Hence this case. 

On the other hand the O.P. No.1 contested the proceedings by way of filing written statement. The name of O.P. No.2 was deleted at the instance of the complaint. 

In the written statement O.P. No.1 averred that the Complainant might have mistakenly considered the O.P. No.1 as the seller of the product and actually O.P. No.1 is not the seller of any product but mere an online intermediary providing a common platform to the buyer & independent third-party seller. O.P. No.1 is an online marketplace e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection(E-commerce) Rules, 2020. It is an electronic market place model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third-party end sellers and independent end customers. It is also averred that O.P. No.1 is protected by the provisions of Section 79 of the Information Technology Act, 2000. The O.P. No.1 neither offers nor provides any assurance or offers pickup or refund facility to the end buyers of the product. In the instant case seller is responsible for delivery of Goods to the Customers, customer satisfaction and Post Sales. 

It is further stated that Flipkart is not responsible for any non-performance or breach of any contract entered into between buyers and sellers.  

Complainant has purchased the product from an independent third-party seller on the Flipkart Platform. O.P. No.1 is not involved in the entire transaction executed between the seller and the Complainant. The O.P. No.1 has not charged Complainant any amount of consideration for using his online platform. There is no privity of contract between the Complainant and the O.P. No.1. 

So, present complaint is neither maintainable nor can the answering O.P. be held liable to pay any compensation or any kind of relief to the Complainant. It is also prayed to dismiss the complaint against the O.P. No.1. 

 3. EVIDENCE ADDUCED BY THE PARTIES:

The Complainant examined himself as PW-I and he has submitted examination in chief by way of affidavit. He has produced 4 documents comprising 06 sheets under a Firisti dated 11/11/2020. The documents on identification have been marked as Exhibit – 1 Series.  

On behalf of the O.P. No.1 one witness namely MS. Sheetal Tiwari, D/O. Mr. Col Pk Tiwari, Authorized Signatory of O.P. No.1 has been examined. The said O.P. did not produce any documentary evidence.

 POINTS TO BE DETERMINED:- 

4.  Based on the contentions raised by both the parties the following issues were framed for determination:  

      (I). Whether the O.P.  have committed any deficiency of service and are involved in unfair trade practices?

      (II). Whether the complainant is entitled to get cost of the product and compensation/relief as prayed for?   

5. ARGUMENTS OF BOTH SIDES:

      On the date of argument Counsel of the Complainant was absent. Counsel of the O.P. was present and we heard argument from the side of the O.P. No.1. 

A written argument also submitted on behalf of the O.P. No.1. Learned Advocate Mr. Kajal Nandi appearing on behalf of the O.P. No.1 submitted that the instant complaint is not maintainable in law. He submits that O.P. No.1 is an electronic market place model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third-party end sellers and independent end customers. It is further submitted that Complainant has not made seller party in the instant case, Seller is responsible if he violated the condition of online booking. As Complainant did not make the seller party the instant case is not maintainable in law. 

6. DECISION AND REASONS FOR DECISION:

All the points are taken up together for the convenience. 

    We have carefully perused the complaint as well as written objection and also exhibited documents. 

        There is no dispute about online booking of VEGA crux Motorsports helmet, size-58 (Black color). Booking was made through Flipkart Company through online. Complainant got one Order-I.D.;OD119776555314230000, dated 24/09/2020. It is also admitted fact that O.P. No.1 is an intermediary and  an electronic market place model E-commerce platform. 

              From the written objection as well as the evidence adduced by the O.P. No.1 we found that O.P. No.1 is denying the responsibility on the ground that sellers is not made party. In examination-in-chief on affidavit submitted by the Complainant we found that on 24/09/2020 Complainant booked one VEGA crux Motorsports helmet, size-58 (Black color) amount to Rs.1,215/- by way of cash on delivery from Flipkart Company through online. After booking Complainant got one Order ID:OD119776555314230000, dated 24/09/2020. Then he paid Rs.1,215/- to the Courier Service and also received the said parcel from the Courier Service. Then he saw that wrong helmet was delivered to him. The delivered item was not the same as he booked and the price of the delivered item was Rs.917/- only. From the date of delivery on several occasions through online he requested to the O.P. No.1 for replace the said wrong helmet and to send the exact order commodity but the O.P. rejected the request. 

7.                On overall appreciation of the evidence adduced by both sides we find that Complainant did not get his helmet as per booking of order. Obviously, it amounts to deficiency in service as well as an unfair trade practice on the part of the O.P. No.1.  

               Accordingly, Complainant is entitled to get compensation of Rs.5,000/- for his mental agony and also entitled to a litigation cost of Rs.5,000/- i.e. means Complainant is entitled to Rs.10,000/-(Rs.5,000/- + Rs.5,000/-) in total from the O.P. No.1 by way of compensation and litigation cost. 

             O.P. No.1 is directed to make the payment in the account of the Complainant within 02 months from the date of this judgment and if O.P. fails to comply the order within 02 months then it will carry interest @ 9% per annum from the date of judgment till the payment is made in full.

    Supply a certified copy of the judgment to both the parties free of cost.    

 Announced.

 

 

SRI  RUHIDAS  PAL

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

DR (SMT)  BINDU  PAL

MEMBER, 

DISTRICT CONSUMER DISPUTES 

REDRESSAL COMMISSION, 

WEST TRIPURA,  AGARTALA

 

SRI SAMIR  GUPTA

MEMBER,

 DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.