IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.

CASE No.  CC/73/2019.

 Date of Filing:                 Date of Admission:                                  Date of Disposal:

   17.06.19                                 20.03.20                                                  01.02.24

Complainant: Abdur Rashid

S/O Late Entaj Ali, Vill&PO-Shyampur Natunpara,

Ps-Bhagwangola, Pin-742135

-Vs-

Opposite Party:  1.Manager, Flipkart Internet Private LTD

Vaishnavi Summit, Ground Floor, 7th Main, 80 Feet Road, 3rd Block,        Koramangala Industrial Layout, Bangalore - 560034

2.Branch Manager, State Bank Of India, Lalgola Branch

Station Road, PO & PS-Lalgola, Pin- 742148

Agent/Advocate for the Complainant                        : Bidishya Sarkar

Agent/Advocate for the Opposite Party No.1 : Prabir Banerjee

Agent/Advocate for the Opposite Party No.2 : Satinath Chandra

Present:    Sri Ajay Kumar Das………………………….......President.     

         Sri. Nityananda Roy……………………………….Member.

FINAL ORDER

Sri.ajay kumar das, presiding member.

This is a complaint under section 12 of the CP Act, 1986.

            One Abdur Rashid (here in after referred to as the Complainant) filed the case against Manager, Flipkart Internet Private Ltd. & Anr. (here in after referred to as the OPs) praying for compensation alleging deficiency in service.

The material facts giving rise to file the complaint are that:-

                 The Complainant is an Indian citizen by birth and reside at above mentioned address.

                 The OP No. 1 & 2 companies are the renowned online shopping company and OP No.3 is the Govt. Bank and having its branch office at the above mentioned address.

                 The Complainant ordered Asus Zenfone Max Pro M1 (Blue 64GB) phone on 13.10.18 vide order Id OD113625345632323000 through online on flipkart apps.

                 The OP Flipkart gave on EMI offer through Debit Card, and this Complainant encashed this offer and ordered Asus Zenfone Max Pro M1 phone amount a sum of Rs. 12,999/-. And monthly EMI was a sum of Rs. 1531/- for 9 month from his saving Bank Account vide No. 30572630812.

                 The Complainant changed his mind and canceled the order on the same date on 13.10.18 as he had no more need the product. And he received the SMS of cancellation from Flipkart.

                 The Complainant got astonished on 13.11.18 when his monthly EMI of Rs. 1531/- got deducted from his SBI account vide No. 30572630812.

                 The Complainant contacted the customer care of OP No.1 and 2 regarding the deduction of the EMI charges. And from Flipkart they assured that they would look after the matter and take necessary action.

                 Each and every month this OP No.1 and 2 deduct the EMI amount from the Bank account of the Complainant.

                 The Complainant visited OP No.3 SBI Branch for the information that why after the cancelling the product, this EMI is being deducted from his account. But this OP No.3 didn’t give any information regarding the deduction and asked to contact OP No.1 and 2.

                 After several calls and email this Complainant didn’t get back his amount from Flipkart nor from OP No.3. But this OP Flipkart is always informing through mail that they had already refunded the amount. But till date the Complainant didn’t get back his amount. And till date monthly EMI is being deducted from the account of the Complainant.

                 The Complainant several time requested the OP to refund the amount which is being deducted from the account of the Complainant. But this OP didn’t refund the amount nor pay any heed to the Complainant, which amounts to deficiency of service on the part of the OP and unfair trade practice.

                 The Complainant getting no other alternative but to file this case before the Ld. Forum for directing the OP to refund the amount which got deducted from his account along with 10% interest per month and to pay a sum of Rs. 50,000/- for compensation and to pay a sum of Rs. 5,000/- for cost and to pass such other order or orders as your Honour would deem fit and proper.

                 OP No.1 contesting the case by filing written version inter alia that the OP No.1 denies all the allegations, contentions, submissions and statements of the complaint which are inconsistent.

                 OP No.1 submits that the business of the OP No.1 falls with the definition of an ‘’intermediary’’ under section 2(1)(w) of the Information Technology Act, 2000, which is reproduced hereunder:

      ‘’intermediary’’, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;’’

                 OP No.2 i.e. State Bank of India is contesting the case by filing written version inter alia that the case is barred by the Law of Limitation and barred by jurisdiction and the case is bad for defect of parties.

                 OP No.2 submits that the as per banking norms the OP being a payee bank can not stop standing instruction (S.I) for deduction of EMI unilaterally. Online mandate for deduction of EMI should be canceled by the party in whose favour mandate has been given. As such ECS mandate should be canceled from the end of Flipkart.

On the basis of the complaint and the written versions the following points are framed for proper  adjudication of the case :

Points for decision

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Has the OP any deficiency in service, as alleged?

3. Is the Complainant entitled to get any relief, as prayed for?

Decision with Reasons:

Point nos1,2&3

            All the points are taken up together for the sake of convenience and brevity of discussion.

                 The Complainant ordered Asus Zenfone Max Pro M1 (Blue 64GB) phone on 13.10.18 vide order Id OD113625345632323000 through online on flipkart apps.

                 The OP No.1 Flipkart gave on EMI offer through Debit Card, and this Complainant encashed such offer and ordered Asus Zenfone Max Pro M1 phone amount a sum of Rs. 12,999/-. And monthly EMI was a sum of Rs. 1531/- for 9 month from his saving Bank Account vide No. 30572630812.

                 The Complainant changed his mind and canceled the order on the same date on 13.10.18 as because he had no more need such product. And he received the SMS of cancellation from Flipkart.

                 The Complainant got astonished on 13.11.18 when his monthly EMI of Rs. 1531/- got deducted from his SBI account vide No. 30572630812.

                 The Complainant contacted the customer care of OP No.1 and 2 regarding the deduction of the EMI charges. And from Flipkart they assured that they would look after the matter for necessary action.

                 Each and every month this OP No.1 and 2 deducted the EMI amount from the Bank account of the Complainant.

                 The Complainant visited OP No.3 SBI Branch for the information that why after the cancellation of the product, this EMI is deducted from his account. But this OP No.3 didn’t give any information regarding the deduction and asked to contact OP No.1 and 2.

                 After several calls and emails this Complainant didn’t get back his amount from Flipkart nor from OP No.3. But this OP Flipkart is always informing through mail that they had already refunded the amount. But till date Complainant didn’t get back his amount. And till date monthly EMI is being deducted from the account of the Complainant.

                 Ld. Adv. for the Complainant submits that the Complainant canceled the order. It is admitted fact but despite such cancellation EMI deduction is carried on through SBI i.e. OP No.2.

                 Ld. Adv. for the OP No.1 submits they are playing role as intermediary vice versa online payment service and they assured they would look after the matter and take necessary action.

                 Considering the facts and circumstances of the case and keeping in mind the submissions advanced by the Ld. Advocates for the parties, we are of the view that the Complainant is a consumer to OP No.1 and SBI has no control over pecuniary transaction between seller and customer.

                 OP No.1 as intermediary (to and fro service) should make arrangement to return the amount of money i.e. Rs. 13,779/- (1531*9) to the Complainant along with 6% interest p.a. from the date of deduction of EMI till payment within 60 days from the date of this order.

                 In view of the matters discussed above we are of the view that the instant complaint case is liable to be dismissed against OP No.2 and allowed on contest against OP No.1.

      Reasons for delay

The Case was filed on 17.06.19 and admitted on 20.03.20. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.

In the result, the Consumer case is partly allowed.

     Fees paid are correct. Hence, it is

Ordered

that the complaint Case No. CC/73/2019 be and the same is  allowed on contest  against the OP No.1 but dismissed on contest against the OP No.2 with litigation cost of Rs.1,000/- ( Rupees one thousand) which is payable by OP No.1 to the Complainant within 60 days from this day.

                 OP No. 1 as intermediary (to and fro service)  is directed to make  arrangement to return the amount of money i.e. Rs. 13,779/- (1531*9) to the Complainant along with 6% interest p.a. from the date of deduction of EMI till payment within 60 days from the date of this order.

                 OP No.1 as intermediary (to and fro service) is further directed to make arrangement to pay litigation cost of Rs. 5,000/- and Rs. 5,000/- for harassment and mental pain and agony to the Complainant within 60 days from the date of this order.

                 OP No.1 as intermediary (to and fro service) is further directed to make arrangement to return the amount of money i.e. Rs. 13,779/- (thirteen thousand seven hundred and seventy nine only) along with 6% (six percent) interest p.a. from the date of deduction of EMI till payment within 60 days from the date of this order and to pay the litigation cost of Rs. 5,000/- ( five thousand only) and Rs. 5,000/- (five thousand only) for harassment and mental pain and agony to the Complainant within 60 days from the date of this order in default the total amount due will carry interest @10% (ten percent) p.a. on and from 01.04.24.

        Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in

Dictated & corrected by me.

President

Member                                                                                        President.