DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 8^th day of May, 2023

Present : Sri.Vinay Menon V., President

             : Smt.Vidya A., Member                       

             : Sri.Krishnankutty N.K., Member         Date of filing: 22/04/2021 

CC/79/2021

Haridas.C.K

    Souhridam, Aiswarya Nagar

    Moorkkattu Parambu (P.O)

    Pattambi – 679 303                                                 -         Complainant                                            

(Party in person)

                                                           V/s

1. Flipkart Internet Pvt. Ltd.

    Buildings Alyssa,

Begonia & Clove Embassy Tech Village

Outer Ring Road, Devarabeesanahalli Village

Bengaluru, Karnataka – 560 103

(By Adv. Manoj Ambat)       

2. Samsung India

    6^th Floor, DLF Centre

    Sansad Marg

    New Delhi – 110 001                                               -         Opposite parties

(By Adv. Manimangalath Sameer Babu)

O R D E R

By Smt. Vidya.A, Member

1.  Pleadings of the complainant in brief

      The complainant purchased a Samsung 1.5 Ton dual Inverter Air Conditioner through the website Flipkart.com on 03/04/2021.  The 1^st opposite party advertised that the Air Conditioner is having 1 year comprehensive warranty, 5 years of warranty on condenser and PCB; 5 years of free gas recharge and 10 years warranty on compressor.  When the product was delivered to the complainant, there was no information regarding its warranty.  The complainant contacted the manufacturer to know more about warranty details and a representative informed him that the product did not have the advertised warranty period and instead only had 1 year comprehensive warranty and 10 years condenser warranty.  Complainant contacted Flipkart to get some clarification on this issue and the representative asked for 48 hrs waiting time.  Even after that they did not contact him.  In the meantime, the complainant found that the Flipkart had changed the details of the product in their website.  It is a case of misleading advertisement and is punishable under the Consumer Protection Act.  After lodging of a complaint with consumer helpline, Flipkart offered to return the amount paid for purchasing the Air Conditioner.

          The complainant purchased the Air Conditioner from the Flipkart only because of their advertisement of 5 years warranty on PCB and condenser and 5 years free gas recharge.  Complainant spent Rs.32,533/- for purchasing the Air Conditioner because of the warranty offered for 5 years.  It is a clear case of unfair trade practice.  Due to the opposite party’s deficiency in service and unfair trade practice, the complainant suffered mental agony and inconveniences.

          The complainant filed this complaint for an order directing the opposite party to replace the Air Conditioner with another one with same specifications and warranty that was promised and to pay a compensation of Rs. 70,000/- for their deficiency in service and cost of the proceedings.

2.   After admitting complaint, notices were issued to both opposite parties.  Both the opposite parties entered appearance and filed their version.

3.   The 1^st opposite party in their version contended that they are not the seller of the product but mere an online intermediary providing a common platform to the buyer and independent third party seller.  The seller of the product is Bathla Teletech Pvt. Ltd. and the complaint is to be dismissed against 1^st opposite party on the ground of non-joinder of parties.

          The 1^st opposite party has not charged any consideration from the complainant for using the online platform.  The averment in the complaint that Advertisement/Warranty/Description of the product is false and fabricated is denied.  Further when the complainant raised the issue with 1^st opposite party, they duly communicated this to the seller and they agreed to provide complete refund by taking the product back.  This was intimated to the complainant and he was not amenable for the resolution and demanded compensation along with refund.

          Even if the averments raised by the complainant are true, 1^st opposite party is not liable to provide refund or compensation.  The warranty, advertisements, specification and descriptions of the products are ascertained by the seller of the product and not by 1^st opposite party.  Hence the complaint has to be dismissed against 1^st opposite party with cost.

4.   The 2^nd opposite party in their version stated that all the alleged issues in the complaint are only against 1^st opposite party and they are only answerable for that.  The complaint averment is that the complainant purchased the product seeing the advertisement made by the 1^st opposite party and they are only responsible to answer.

          The complainant has not produced any document to show that he has reported any complaint about the product at any point of time.  The 2^nd opposite party has never made any such advertisement regarding any product misleading the consumers.  The company does not provide any such warranty to any of its products including the product in this case.  The 2^nd opposite party has not committed any deficiency in service/unfair trade practice and the complaint has to be dismissed.     

5.   From the pleadings of both parties, the following points arise for consideration

1. Whether the complaint is bad for non-joinder of necessary parties?
2. Whether 1^st opposite party has published misleading advertisement relating to the warranty of the product?
3. Whether there is any deficiency in service/unfair trade practice on the part of opposite parties?
4. Whether the complainant is entitled to the reliefs claimed?
5. Reliefs as cost and compensation.

6.   Complainant filed proof affidavit and Exts. A1 to A6 marked from his side.  Ext. A7 sought to be marked is a pendrive of telephonic conversation unaccompanied by transcripts.

          Hence pendrive is rejected and not marked.  Opposite parties did not file proof affidavit and evidence was closed.  Heard.         

7.  Point No: 1

      The 1^st opposite party raised a contention in their version that 1^st opposite party acts only as an intermediary between the customers and 3^rd party sellers.  The warranty/specifications/descriptions of the product are ascertained by the seller and they are necessary party to the complaint. 

          1^st opposite party filed an application IA/176/21 to direct the complainant to implead the seller in the party array.  IA is dismissed for the reason that this Commission has no authority to direct the complainant to implead a party.    

          Complainant being the ‘Dominus litius’, it is for him to decide whom are to be impleaded in the party array.  Further, he purchased the product manufactured by 2^nd opposite party through the website of Flipkart and no direct connection with the seller.  So the seller is not a necessary party to the complaint.  Point No: 1 is decided in favour of the complainant.

8.  Point No: 2    

      Complainant’s grievance is that he purchased the Air Conditioner believing the advertisement about the warranty of the product.  The product at the time of sale was advertised to have, 1 year comprehensive warranty, 5 years warranty on condenser and PCB, 5 years free gas charge and 10 years warranty on compressor. 

But after receiving the product, when he contacted the manufacturer to know more about the warranty details, a representative of the manufacturer informed him that the product did not have the warranty period as advertised by the 1^st opposite party instead it only had 1 year comprehensive warranty and 10 years condenser warranty.

9.   Six documents were marked from the side of the complainant.  Ext. A1 is the Tax invoice dated 04/04/2021 showing the purchase of SAMSUNG 1.5 Ton 3 star Split Inverter Air Conditioner for an amount of Rs.32,533/-  Ext.A1 shows warranty details as “1 year comprehensive warranty on product, 5 years on PCB, 5 years on condenser, 5 years free gas recharge and 10 years on Compressor.  Ext. A2 is the copy of Flipkart warranty specification which also shows the same warranty details.  Ext. A3 is the copy of the cover of the Air Conditioner which shows the Power: 1700 Watt.  Ext. A4 is the copy of Flipkart advertisement showing the description and specifications of the product.   Ext. A4 shows the ‘Power Features’ as Power Requirement: AC 230V, Power Consumption: 1044.19 Watt.   

10. Ext. A1 to A4 shows the warranty details and power consumption given by the opposite parties at the time of purchase by the complainant.  Ext. A5 is the copy of the web page of Flipkart.  In this the product warranty is shown as 1 year comprehensive warranty on product, 1 year on PCB, 1 year on condenser, 1 year free Gas recharge and 10 years on compressor.  Ext. A6 is the whatsapp communication between the complainant and representative showing the compressor warranty to be 5 years.

11. So from the exhibits produced by the complainant, it is clear that the warranty conditions advertised by the opposite party in their website is different from that on sale of the product and given by the manufacturer.  Exts. A1 to A4 shows that the 1^st opposite party had given advertisement misleading the customers that a product has a warranty which it does not have.  Point No: 2 is decided accordingly.

12.    Points 3 to 5 are considered together

      From the conclusion arrived at in Point No: 2, it is clear that the 1^st opposite party had published a misleading advertisement relating to the warranty of the product.  It is an unfair trade practice which is punishable under the Consumer Protection Act.  As per Consumer Protection Act Definition clause S.2(28)(ii) “misleading advertisement” in relation to any product or service means an advertisement which (ii) gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service......”  Accordingly the 1^st opposite party is liable for the unfair trade practice.         

13. The complainant’s grievance pertains only to the warranty conditions published by the 1^st opposite party in variance with the warranty conditions provided by the manufacturer (Samsung). 

          1^st opposite party in their version admitted that when the complainant raised this issue, it was duly communicated to the seller of the product and they agreed to provide the complete refund taking the product back.  This appears to be an indirect admission about the false advertisement given by them.

      In the result complaint is allowed.

1. We direct the 1^st opposite party to procure and provide the warranty initially offered to the complainant from the 2^nd opposite party or in lieu of procuring a warranty, pay Rs. 20,000/- to the complainant.
2. We further direct the 1^st opposite party to pay Rs. 25,000/- as compensation for their unfair trade practice and Rs. 10,000/- as cost of the litigation.

The opposite party shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 500/- per month or part thereof until the date of payment in full and final settlement of this order. 

Pronounced in open court on this the 8^th day of May, 2023.

                                                                                            Sd/-

                                                                                    Vinay Menon V

                                                                               President                                              

                                                        Sd/-

              Vidya.A

                             Member   

                                                                                              Sd/-

                                                                                  Krishnankutty N.K.

                                                                                           Member

APPENDIX

Documents marked from the side of the complainant:

Ext. A1: Tax invoice dated 04/04/2021.

Ext. A2: Copy of Flipkart warranty specification.

Ext. A3: Copy of the cover of the Air Conditioner.

Ext. A4: Copy of the Power Features of AC.

Ext. A5: Copy of the web page of Flipkart.

Ext. A6: Copy of Whatsapp communication with Samsung Support.

Documents marked from the side of opposite parties: Nil

Witness examined from the complainant’s side: Nil

Witness examined from the opposite parties side: Nil

Cost- Rs. 10,000/-  

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.