Haryana

Kaithal

CC/216/2022

Shunty Arora Alias Pardeep Kumar - Complainant(s)

Versus

Instakart Services Private Ltd. etc. - Opp.Party(s)

Sh. Ashutosh Sharma

23 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 216 of 2022.

                                                               Date of institution:    01.09.2022.

                                                               Date of decision:       23.01.2024.

 

Shunty Arora @ Pardeep Kumar s/o Shri Radhe Shyam, r/o Palika Bazaar, Bhagat Singh Chowk, Kaithal.

                                                                                      …Complainant.

                                                       Versus

 

1. Instakart Services Private Limited, through its Authorized Person, 326, MDR119, HUDA, Sector-20, Kaithal.
2. Sane Retail Pvt. Ltd., through its Authorized Person, SCO No.219, 1^st Floor, Sector-14, Panchkula.

&

     Sane Retail Pvt. Ltd., AWFIS Space Solutions Pvt.Ltd., 5^th and 6^th Floor,    

     near Main Street Chemtex Lane, Sainath Nagar Hiranandani Gardens    

     Powai,  Maharashtra.

3. Flipkart India Pvt. Ltd., through its Authorized Person Appe Jay Global Logistics Park, 23/5, Ballabgarh, Faridabad-121004.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       Shri Ashutosh Sharma, Advocate for the complainant.   

                   Shri Vikram Tiwari, Advocate for the Opposite Parties.

                  

ORDER  -  SUMAN RANA, MEMBER

        Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’), against the OPs.

2.                It is all44eged by the complainant that on 02.10.2021, he purchased a Samsung Galaxy F12 (Celestial Black X194K2T) mobile and PROVOGUE sneakers for men vide Invoice No.FAF07X2200255514 and FAFQ772204764995 dated 02.10.2021, from  OP No.2, for the sale and promotion in India for a sum of Rs.8799/- from the website of OP No.3. That OPs No.2 & 3 gave 1 year warranty at that time. That the mobile was delivered by OP No.1 which is authorized courier service of OPs No.2 & 3. OP No.1 delivered the box to him on 05.10.2021, but regret to say that he found only Provogue Sneakers only and no mobile was there. He contacted OPs No.1 to 3, but no satisfactory reply was given to him till date. He requested a return of mobile on the same day of delivery as the item was missing, but later on they rejected it on 08.10.2021. He made video of opening of the box of mobile in which no mobile phone was found. The above act of OPs, amounts to gross deficiency in service, on their part, due to which, he suffered physical and mental agony as well as financial loss, constraining him, to file the present complaint, against the OPs, before this Commission.

3.             Upon notice of complaint, all OPs appeared before this Commission and filed their respective written statements

4.                OP No.1 in its written statement stated that the goods were sold by an independent seller (OP No.2) and the seller had prepared the goods for delivery and OP No.1 has only provided delivery when it got the order confirmation through the seller. OP No.1 delivered the product in a sealed box (as provided by the seller) and it is the seller’s responsibility to provide complete and original goods to the complainant, because order is sold by the seller and the OP No.1 only provides door to door delivery facilities at the address provided by the complainant, thereafter, if the product is missing or incomplete, the seller is one who is responsible for it and not OP No.1.

5.                OP No.2, in its written statement stated that OP No.2 is engaged in the sale of goods manufactured and produced by other manufacturers. OP No.2 categorically denies the allegation of non-delivery of the said product because it is sold in the sealed pack box and in intact condition to the complainant, as received by manufacturer/distributor (which are not impleaded as a party) and the said product was delivered by a third party courier service provider (OP No.1). The complainant never approached OP No.2 for the alleged issue. Even otherwise not admitting to it but for the sake of argument, if the statement of making the alleged video is to be believed, then also these videos cannot determine the authenticity of the situation as such video can easily be made by taking out the product and then rebuilding the situation all over again.

6.                OP No.3, in its written statement stated that OP No.3 does not directly or indirectly sell any products on the Flipkart Platform, rather all the products on the Flipkart Platform are sold by third party sellers, who avail of the online marketplace services provided by OP No.3. In the instant case also, it is evident from the invoice copy that the actual seller of the product is a third party seller (OP No.2) and not OP No.3. There is no relation between OP No.2 and OP No.3 and both are separate and distinct entities. Hence, it is pertinent to mention here that the complainant has wrongly arrayed OP No.3 in the present complaint. The grievance of the complainant should have been only against the seller of the product i.e. OP No.2 and the product delivery and replacement/refund is only provided by the seller, as the product was sold by an independent third party seller i.e. OP No.2 and not OP No.3.

7.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 & Annexure-C6.

8.                On the other hand, OPs, in their evidence tendered affidavits Ex.RW1/A and Ex.RW2/A.

9.                We have heard the learned counsel for the parties and perused the record carefully.

10.              Learned counsel for the complainant has argued that on 02.10.2021, the complainant purchased a Samsung Galaxy F12 (Celestial Black X164K2T) mobile and Provogue sneakers for men, vide Invoice No.FAF07X2200255514 and FAFQ772204764995 dated 02.10.2021, from OP No.2, for the sale and promotion in India for a sum of Rs.8799/- from the website of OP No.3. He further argued that the mobile was delivered by OP No.1, through courier service of OPs No.2 & 3. He further argued that OP No.1 delivered the box to the complainant on 05.10.2021, but regret to say that the complainant found only Provogue Sneakers only and no mobile was there. He further argued that the complainant contacted OPs No.1 to 3, but no satisfactory reply was given to him till date. He further argued that the complainant made video of opening of the box of mobile in which no mobile phone was found. He further argued that the above act of OPs, amounts to gross deficiency in service, on their part

11.              On the other hand, learned counsel for OP No.1 has argued that the goods were sold by an independent seller (OP No.2) and the seller had prepared the goods for delivery and OP No.1 has only provided delivery when it got the order confirmation through the seller. He further argued that OP No.1 delivered the product in a sealed box (as provided by the seller) and it is the seller’s responsibility to provide complete and original goods to the complainant, because order is sold by the seller and the OP No.1 only provides door to door delivery facilities at the address provided by the complainant, thereafter, if the product is missing or incomplete, the seller is one who is responsible for it and not OP No.1.

12.               Learned counsel for OP No.2 has argued that OP No.2 is engaged in the sale of goods manufactured and produced by other manufacturers. He further argued that OP No.2 categorically denies the allegation of non-delivery of the said product because it is sold in the sealed pack box and in intact condition to the complainant, as received by manufacturer/distributor (which are not impleaded as a party) and the said product was delivered by a third party courier service provider (OP No.1). He further argued that the complainant never approached OP No.2 for the alleged issue. Even otherwise not admitting to it but for the sake of argument, if the statement of making the alleged video is to be believed, then also these videos cannot determine the authenticity of the situation as such video can easily be made by taking out the product and then rebuilding the situation all over again.

13.              Learned counsel for OP No.3 has argued that OP No.3 does not directly or indirectly sell any products on the Flipkart Platform, rather all the products on the Flipkart Platform are sold by third party sellers, who avail of the online marketplace services provided by OP No.3. He further argued that in the instant case also, it is evident from the invoice copy that the actual seller of the product is a third party seller (OP No.2) and not OP No.3. He further argued that there is no relation between OP No.2 and OP No.3 and both are separate and distinct entities. He further argued that the complainant has wrongly arrayed OP No.3 in the present complaint.

14.              Admittedly, the complainant had made online order for purchasing a Samsung Galaxy F12 (Celestial Black, 641 X194K2T) mobile and PROVOGUE Sneakers For Men X19RQEH, vide Invoice Nos.FAF07X2200255514 and FAFQ772204764995 dated 02.10.2021, from OP No.2, for a sum of Rs.8799/- and Rs.530/- vide Invoice Annexure C-2, from the website of OP No.3, which was delivered by OP No.1, authorized courier service of OPs No.2 & 3.

15.              The grievance of the complainant is that OP No.1 delivered the box to him on 05.10.2021 and when he opened the box, only Provogue Sneakers only was there and no mobile was there and in this regard, he contacted OPs No.1 to 3, but no satisfactory reply was given to him till date.

16.              On the other hand, learned counsel for the OPs had denied the all the allegations of the complainant regarding missing of Samsung mobile phone from the box.

17.              In order to support his contentions, learned counsel for the complainant has produced CCTV Footage in a Pen Drive as Mark-X and the same has been attached with the computer system of this Commission today and found that there are two videos in that Pen Drive. In the first video, one person came in front of shop of complainant in a motorcycle and delivered a sealed box to the complainant and then goes back. From watching the second video, we found that complainant had opened the same sealed box, which was delivered by that person in first video and opened the same, by removing its tape, and then found only one pair of shoes and no mobile phone was found in that sealed box. However, it is pertinent to mention here that from watching the first video of Pen Drive Mark-X regarding delivery of box too the complainant, it is crystal clear that the delivery boy had given only one sealed box, to the complainant, nor the OPs had anywhere contended (neither in their reply nor at the time of arguments) that they had sent more than one box, to the complainant, containing shoes in one box and the mobile phone in other box.

18.              So, keeping in view the above facts and circumstances of the case as well as after watching the above-mentioned videos of Pen Drive Mark-X, this Commission is of the considered view that the complainant had made online order for purchasing a Samsung mobile phone and PROVOGUE Sneakers shoes, vide Invoice Annexure C-2, for a sum of Rs.8799/- and Rs.530/- respectively, from the OPs, but the complainant found only one pair of shoes, in the box, delivered by the OPs, and could not found the mobile phone. By not delivering the mobile phone, even after receiving its cost price of Rs.8799/-, by the OPs, amounts to gross deficiency as well as unfair trade practice, on the part of OPs, for which, the OPs not only liable to refund the cost of mobile phone amounting to Rs.8799/-, but also liable to pay the compensation amount and litigation expenses, to the complainant.

19.              Thus, in view of above discussion, we allow the complaint and direct all the OPs, jointly and severally, refund the amount of Rs.8799/- along with lump-sum amount of Rs.5000/- as compensation and litigation expenses, to the complainant. The OPs are directed to make compliance of this order within 45 days from today, failing which, the total award amount shall carry simple interest @6% P.A., from the date of this order, till its actual realization. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:23.01.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

 

 

 

 

Typed by: Sham Kalra, Stenographer.