Haryana

Panchkula

CC/80/2015

NARENDER KAAJLA. - Complainant(s)

Versus

MANAGER,FLIPKART. - Opp.Party(s)

COMPLAINANT IN PERSON.

29 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA. 

Narender Kaajla, R/o H.No.101, Block E-4, GHS-79, (AWHO Society), Sector-20, Panchkula (Haryana).

                                                                      ….Complainant

Versus

1.     Manager (sales) flipkart, DLF City IV, Sector-28, Gurgaon, Haryana.

2.     Sunder Electronics, Gala No.135, 1^st Floor, Pargati Industrial Estate. N.M.Joshi Marg. Lower Parel (E), Mumbai-400011.

3.     Manager Trackon Courier Services, DSS-312, (Ground Floor), Sector-20, Panchkula, Haryana.

                                                        ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:              Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                        Mr.S.P.Attri, Member.

For the Parties:  Mr.Amit Singla, Adv., for the complainant. 

Mr.Amit Mahajan, Adv., for the Op No.1.

Ops No.2 & 3 are exparte.

ORDER

(Dharam Pal, President)

1. The complainant-Narender Kaajla has filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that he placed an order online shopping in the name of Prikshit Kaajla minor son, for purchasing Nintendo DS (a playing device) on 08.12.2014 but the seller of OP No.1 has sent only a chip (new super Mario Bross DS games) vide order ID No.OD301460567362312100 (Annexure C-1) dated 05.12.2014 which was received on 08.12.2014. After receiving the consignment, the complainant has sent a mail regarding return of the product and to refund the amount of Rs.3000/- only but the same was not answered. The complainant again sent a mail but to no avail. Thereafter, the complainant sent back the consignment at their address through Trackon Courier Service i.e. Op No.3 vide receipt No.426801897 dated 17.12.2014 (Annexure C-2). The complainant also contacted the Op No.1 on toll-free number and their representative stated that they were looking into the matter and would refund the money as soon as possible. But the Ops refused to return the money vide mail dated 24.01.2015 (Annexure C-4). The Ops No.1 and 2 are not refunding the amount of Rs.3000/- nor admitting that whether they have received the product or not. As per report of courier services, the consignment has been received by the Ops No.1 and 2 on 22.12.2014. As per the norms/policy of the online shopping, in case the product is returned in 30 days of delivery, they would returned the money and the Op No.1 also assured the complainant, if the product returned within 30 days, they should refund the money but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. OP No.1 appeared and filed written statement by taking some preliminary objections and submitted that the Op No.1 is a company duly registered under the provisions of the Companies Act, 1956 and having its registered office at Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feet Road, 3^rd Block, Koramangla Industrial Layout, Bangalore 560034, Karnataka. It is submitted that the company is engaged among others, in providing trading/selling facility over the internet through its website

“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, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;”

It is submitted that the Op No.1 is protected by the provisions of Section 79 of the Information Technology Act, 2000, which is reproduced as under:-

“79…

1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
2. The provisions of sub-section (1) shall apply if-

1. the functions of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
2. the intermediary does not-

1.   initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

3. The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

3. The provisions of sub-section (1) shall not apply if-

a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;

b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.

It is submitted that the complainant is not a consumer of OP No.1 under the provision of Consumer Protection Act. It is submitted that there is no privity of contract between the complainant and Op No.1. It is submitted that the users of the website/buyer of goods are bound by the terms of use enumerated on the website. It is submitted that the complainant has placed an order for Nintendo DS (a playing device) from the seller “Sunder Electronics” i.e. Op No.2 on 05.12.2014. It is submitted that the complainant contacted on toll-free number. It is submitted that the OP No.1 is not liable to refund the price of the product in question as the OP No.1 has not sold any product to the complainant. Thus, there is no deficiency in service on the part of Op No.1 and prayed for dismissal of the complaint.  

3. OP No.2 appeared on 03.06.2015 and sought time for filing written statement, the case was adjourned to 12.06.2015. On 12.06.2015, none has appeared on behalf of OP No.2 and the case was adjourned to 22.07.2015. On 22.07.2015, quorum of this Forum was not complete and the case adjourned to 29.07.2015. On 29.07.2015, also none has appeared on behalf of Op No.2 nor filed any written statement after availing opportunities and the OP No.2 was proceeded against ex-parte vide order dated 29.07.2015.
4. Notice was issued to the Op No.3 through speed post but the Op No.3. It is deemed to be served and the Op No.1 was proceeded against ex-parte vide order dated 03.06.2015.
5. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 & C1/A to C-6 and closed the evidence. On the other hand, the Op No.1 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 & R1/2 and closed the evidence.
6. We have heard learned counsel for the parties and have also perused the record as well as written arguments submitted by the counsel for the Op No.1 carefully and minutely.
7. Admittedly, the complainant had placed an order with OP No.1 on dated 05.12.2014 vide ID No. OD301460567362312100 for his son namely Prikashit Kaajla (minor) which was received on 08.12.2014. Perusal of case file reveals that the order was placed for purchase of Nintendo DS (a playing device) but the Ops has delivered the item having description New Super Mario Bros DS Games as shown in Ex.C1/A, therefore, the complainant had returned the product to the Ops on 18.12.2014 (vide Ex.C2) and also sent an email to the Ops requesting them to refund an amount of Rs.3,000/- (vide Ex.C3). The grievance of the complainant is that the OP No.1 vide Ex.C4 declined his claim on the ground that seller has crossed the 10 days replacement policy. Had it been so, it was obligatory on the part of the OP No.1 to intimate the complainant with this condition but the OP No.1 has failed to produce any evidence and document to show that such type of condition/policy/intimation has ever been issued to the complainant either at the time of receiving of order/money or at the time of delivery/dispatch of the product.  Learned counsel for the complainant drew the attention of the document Ex.R1/1 wherein it has been mentioned that Buyer need to raise the refund request within 10 days from the date of payment realization.  It is not disputed that the product (though the wrong item was delivered) to the complainant on 08.12.2014 and the complainant had sent the same to the OP No. on 18.12.2014 as is evident through  Ex.C2 i.e. courier receipt. The act and conduct of the OP No.1 clearly shows that in this way or that way it wants to harass the consumer to avoid the payment made by the complainant.  Learned counsel for the OP No.1 raised another plea that it never comes in possession of the product, therefore no privity of contract has arisen with the complainant as it only provides online market place/ platform/ technology and other mechanism/services to the sellers and buyers of products to facilitate the transactions etc.  This plea itself is sufficient to prove that the OP No.1 company is engaged in the business of providing services through its internet portal to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of moveable goods. If this is the declared business interest of OP No.1 it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not  the case of OP No.1 that it is a charitable organization involved in ecommerce with no business returns for itself, therefore, the plea raised by OP No.1 is distinguished being devoid of any merit. On this point reliance can be taken from case law titled as Rediff.com India Limited 1^st Floor, Mahalaxmi Engineering Estate L.J.Road No.1 Mahim (W) Vs. Ms.Urmil Munjal c/o Gurgaon Gramin Bank decided on 10.07.2015 by the Hon’ble National Commission in Revision Petition No.4656 of 2012  It is worthwhile to mention here that now-a-days online shopping is spreading everywhere because it is time and money saving but the responsibilities of the companies cannot be over after selling of the product as it is the bounded duty of the companies to satisfy their customers because any consumer and it does not give any liberty to usurp the money of the consumers either by sending wrong items or defective product. In the present case it is very well established that wrong item was sent by the seller, therefore, the complainant has a right to seek refund of the price. Such like behaviour and practice is not expected from a company which is selling its product through online. In other words, we can say that this act and conduct of the company falls under unfair trade practice and deficiency in service as defined in Sections 2 (f) and 2 (g) of The Consumer Protection Act, 1986 because it sells or sends the wrong item than the purchased item product even after charging full amount of the product.
8. In view of the above discussion, we are of the view that the present complaint deserves to be allowed and the same is accordingly allowed. The Ops are jointly and severely directed as under:-

1. To refund the amount received from the complainant qua the product in question i.e. Rs.3000/- alongwith interest @ 9% p.a. from the date of depositing of amount till realization.
2. To pay an amount of Rs.10,000/- as compensation for mental agony and harassment etc.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy, thereafter, the Ops shall pay the amount at serial No.1 above with the interest @ 12 % per annum form the date of depositing of the amount by the complainant till realization besides complying with the direction at serial No.2 above. A copy of this order be supplied to the parties free of costs.  File be consigned to records after due compliance.

Announced

29.10.2015   S.P.ATTRI         ANITA KAPOOR          DHARAM PAL

                    MEMBER           MEMBER                   PRESIDENT

Note: Each and every page of this order has been duly signed by me.

                                                DHARAM PAL

                                                PRESIDENT