Haryana

Panchkula

CC/153/2020

UMESH KUMAR. - Complainant(s)

Versus

MANAGER(SALES)FLIPKART - Opp.Party(s)

NARIENDER KAAJLA.

07 Feb 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                      

Consumer Complaint No	:	153 of 2020
Date of Institution	:	16.03.2020
Date of Decision	:	07.02.2022

 

 

Umesh Kumar son of Shri Madan Pal, resident of House No. 76/1, Vikas Nagar, Baltana, Zirakpur(Mohali).

 

                                                                           ….Complainant

Versus

1.     Flipkart Internet Pvt. Ltd., Building Alyssa, Begonia and Clover Embassy, Tehsil Village Outer Ring Road, Devarabeegana Halli Village, Varthue Hobli, Bengluru.

2.     Manager, Ecom Express Private Limited, Plot No. 242, Industrial Area, Phase 2, Panchkula(Haryana).                                         

….Opposite Parties

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986 (AS AMENDED UPTO DATE).

 

Before:              Sh.Satpal, President.

Dr. Pawan Kumar Saini, Member.

 

 

For the Parties:   Shri Narender Kaajla, Advocate, Counsel for the Complainant.

                        Ms. Jyoti Rani, Advocate, Counsel for the OP No.1.

                        Shri Arjun Kundra, Advocate, Counsel for the OP No.2.

 

ORDER

(Sh. Satpal, President)

1.             The brief facts of the present complaint are that on 12.10.2019, the complainant placed an order of Redmi 8 mobile phone through online shopping to OP No.1 who had confirmed the order No. OD116771839717437000. The payment of Rs. 7,999/- was made in advance to OP No.1 through debit card. The product in question was to be delivered at bays No. 3-6, Sector 4, Panchkula on or before 16.10.2019 through OP No.2 vide AWB No. 2530744044. The said product was approved, packed and shipped on 12.10.2019. It is submitted that the item in question was purchased by the complainant for giving the same to his wife on occasion of “Karva Chauth” which fell on 17.10.2019. That on 15.10.2019, the complainant received the message on his mobile No. 9988429476, “Dear customer, your Flipkart “Pre-paid” shipment awb 253074044 is out for delivery by ECOM executive Ph: 08061914615 PIN:2530744044. The complainant waited in the office after receiving the message for taking the delivery of his parcel. After waited sufficiently, the Complainant tried to call the executive on his aforementioned mobile No. but the mobile No. could not be connected and the executive who was to deliver the item did not make a phone call to the complainant on the said date. On the next day, the complainant several times tried to call the executive on his mobile but it could not be connected The complainant also contacted OP No. 1 on its Flipkart App and raised the issue by writing “ I have an issue with the delivery of my order” and in response to the aforesaid complaint, OP No. 1 admitted that there was an unexpected delay in delivering the item. The complainant several times raised this issue before the OPs by calling on their respective customer care numbers. The OP No. 2 did not deliver the item on 16.10.2019, 17.10.2019 and 18.10.2019 despite knowing well that the item was lying with it. On 19.10.2019, the complainant again received the same message that was received on 15.10.2019 and to utter dismay to the complainant, the same episode was repeated by OP No. 2 knowing that the address given by the complainant was office address and the item could not be delivered after 5 p.m. and Saturday and Sunday were holidays. Again, the executive did not make a phone call to the Complainant on his mobile number.

                It is very well known to everyone in our culture that the “Karva Chauth” is an important and special festival for all married women. The complainant had purchased the product in question for his wife to give her on the special occasion. Despite well apprised about the special day, OP No. 2 failed to deliver the mobile phone to the Complainant on the day or prior. Due to the negligence on the part of OPs, the complainant could not gift the aforesaid item containing Redmi 8 mobile to his wife on occasion of “Karva Chauth” and faced embarrassment despite making the entire payment in advance to OP No. 1. Both the OPs are deficient in providing services to the complainant and the complainant also suffered harassment and mental agony; hence, OPs are liable to pay compensation to the complainant. Hence, the present complaint.

2.             Upon notice, OPs No. 1 and 2 appeared through their counsels and filed separate written statement raising preliminary objections qua complaint is not maintainable due to non-joinder of the necessary party. On merits, it is stated by OP No.1 that the complainant has suppressed true and material facts and cooked all crooked stories of sufferings. The complaint is not maintainable and liable to be dismissed against the OP No. 1 as the OP No. 1 provides online Marketplace platform/ technology or other mechanism/services to the sellers and buyers of the products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods. The said Flipkart platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third-parties sellers and independent end customers. It is submitted that the OP No. 1 is protected by the provisions of section 79 of Information Technology Act 2000. The OP No. 1 does not directly or indirectly sell any product on Flipkart platform. In the instant complaint also, the actual seller of the product is a third party seller (who is not impleaded as a party) and OP No. 2 is a courier service provider and not the OP No.1. The complainant has wrongly added the OP No. 1 in the present complaint. It is submitted that any kind of assurance whether in terms of warranty on the products, price, discounts, promotional offers, after sales services or otherwise are offered and provided by the manufacturer of the products sold on Flipkart platform. The OP No. 1 neither offers nor provides any assurance and/or offers warranty to the end buyers of the product. It is submitted that the OP No. 1 has no role in providing delivery or any compensation of the products sold by an independent seller through the Flipkart platform. It is also submitted that complainant does not fall under the category of consumer of OP No. 1 under the provisions of consumer protection act as the OP No.1 is neither a trader nor a service provider and there does not exist any privity of contract between the complainant and OP No. 1 and thus, the complainant has wrongly arrayed OP No. 1 in the present complaint; hence the complaint is bad for mis-joinder of party. It is also submitted that the said product was delivered to the complainant on 20.10.2019 instead of 16.10.2019. There is no deficiency in the services on the part of OP No. 1 and no dispute is caused to have arisen between the complainant and OP No. 1. It is also submitted that the product delivery is only provided by the seller through his courier provide i.e. OP No. 2 Ecom Express Private Limited and the OP No. 1 only acts as an intermediary through its web interface www.flipkart.com and provide a medium to various sellers all over India to offer for sale and sell their product to the users of Flipkart platform. It is further submitted that delivery of the product is only determined by the seller and the OP No. 1 is not responsible for any late delivery which is only related to the seller and courier provider i.e. OP No. 2.

                It is submitted that the complaint is totally false, frivolous and vexatious and has been filed with malafide intention of causing harassment to the OP No.1 as the averments made in the complaint are baseless and are made only with the intention to defame the OP No. 1 and extorting money in illegal manner; hence, the complaint is liable to be dismissed against the OP No.  1.

                On the other hand, the OP No. 2 submitted that the OP No. 2 is a company duly incorporated under the provisions of Companies Act 1956 and is engaged in the business of providing courier services to its customers including e-tailers on a principal to principal basis only wherein the OP No. 2 delivers the e-commerce shipments ordered by end customers accessing marketplace platforms of e-tailers in the intact condition or “Said to Contain basis only” to the said end customers. It is submitted that the OP No. 2 has duly delivered the consignment in favour of the complainant on 22.10.2019 and as such, no cause of action subsists under the present complaint and is liable to be dismissed for want of cause of action. There has been no negligence, deficiency in services or unfair trade practice whatsoever on part of OP No. 2 in dealing with the concerned service. It is submitted that the complainant has alleged that he had purchased Redmi 8 Onyx mobile phone through online shopping from OP No.1 and the said product was shipped by OP No. 1 through the OP No. 2. It is submitted that the OP No. 2 has no express liabilities towards the complainant as there is no contractual relations between the complainant and OP No. 2. It is further submitted that OP No. 2 has a direct agreement with the OP No. 1 which provides for “Turn Around Time(TAT)” for delivery of goods as well as penalty clauses. Therefore, the OP No. 2 is not privy to the contract between the complainant and OP No. 1 and cannot be held liable in case of any delay in delivery of the shipment. It is submitted that the OP No. 2 owes no direct liability towards the complainant.

                It is further submitted that the present complaint deserves to be dismissed as the complainant have narrated force and convicted story only with the malafide intention of making wrongful gain and causing wrongful loss to the OP No. 2; hence, the present complaint is liable to be dismissed against OP No.2.

3.             The learned counsel for the complainant has tendered affidavit of the Complainant as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, the Ld. Counsel for the OP No.1 by making a separate statement stated that the written statement filed by OP No.1 may be treated as evidence of OP No. 1 and also tendered document Annexure R1/1 in its defence and closed the evidence. The Ld. Counsel for the OP No.2 has tendered affidavit Annexure R2/A alongwith document as Annexure R2/1 in its defence and closed the evidence.

4.             We have heard the Learned counsels for both the parties and gone through the record minutely and carefully.

5.             Admittedly, the mobile set i.e. Redmi 8 Onyx Black, 64 GB (Annexure C-1- Tax Invoice) was delivered to the Complainant by OP No. 2 on 22.10.2019 as against 16.10.2019 promised by OP No.1 vide Annexure C-3. Now, the grievances of the Complainant is only with regard to delayed delivery of said mobile set to him. The compensation on account of mental agony and harassment has been claimed by the Complainant stating that he was prevented to give the said mobile set to his wife as gift on 17.10.2019 on the occasion of “Karva Chauth” due to the lapse and deficiency on the part of OPs.

                The OP No.1 has denied any deficiency on its part on several grounds. The Ld. Counsel for the OP No.1 during arguments reiterated all the contentions raised in the written statement and document Annexure R1/1. The main submissions made by the Ld. Counsel may be summarized as under:-

(i) That the OP No.1 provides online marketplace platform/technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers.

(ii)  That the ‘Flipkart Platform’ i.e. www.flipkart.com is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers.

(iii) That the OP No.1 being an intermediary is protected as per provisions of section 79 of IT Act 2000.

(iv) That the product in question has neither been sold by OP No.1 nor it was delivered to it by the Complainant. The complaint is liable to be dismissed as the seller as well as manufacturer of the product in question i.e. mobile set has not been impleaded in the present complaint, which was necessary party for the adjudication of the complaint.

(v) There is no privity of contract between the Complainant and the OP No. 1.

6.             The OP No.2 has also denied its liability in the delayed delivery of mobile set to the Complainant. The Ld. Counsel for the OP No.2 vide reiterating the contentions raised in written statement as well as affidavit and documents Annexure R2/1 contended that there was no express liability of the OP No.2 towards Complainant as there was no contractual relations between them. It is contended that the OP No. 2 has a direct agreement with the OP No.1, which provides for “Turn Around Time(TAT)” for delivery of goods as well as the penalty clauses. It is contended that the OP No. 2 is not privy to the contract between the Complainant and the OP No.1.

                Now, coming to the plea of intermediary raised by OP No.1, it is found that the Complainant placed the order No. OD116771839717437000 on the website of OP No.1 for the delivery of mobile set in question to him, in response to which, the OP No.1 assured the delivery of said set to the Complainant on 16.10.2019 as per Annexure C-3. For the sake of convenience and clarity, the contents of Annexure C-3 are reproduced as under:-

“Flipkart Customer (9988429476) shared this order with you.

Order ID- OD116771839717437000

 

Redmi 8 (Onyx Black, 64 GB)

Onyx Black

Seller: Flashstar Commerce

Rs. 7,999

 

Ordered and Approved

Sat, 12^th Oct.19

 

Packed

Sat 12^th Oct. 19

 

Shipped

Sat, 12^th Oct.19

 

Delivery

Expected by Wed, 16^th Oct. 19

Shipment yet to be delivered”

 

                In view of above, the contentions of the OP No.1 that it has no role to play in the sale transaction in question between the Complainant and the seller, is not tenable as the OP No.1 has been found to have played an active role in the sale transaction in question. Moreover, the payment of Rs.7,999/- has been made by the Complainant to the OP No.1. Furthermore, it is the consistent, specific and categorical assertion of the Complainant that he had made the payment amounting to Rs. 7,999/- through his debit card to OP No. 1 who had assured him to deliver the said product on 16.10.2019. The OP No.1 has not rebutted or controverted the said assertions of the Complainant, which clearly proves that its role in the sale transaction in question was beyond the role of an intermediary and thus, it is not entitled to the shelter as provided under section 79 of IT Act, 2000.

                Apart from above discussion, it is relevant to mention here that there was a direct agreement between the OP No.1 and the OP No.2, as alleged by the OP No.2 vide its averment made in Para No. 9 of the Affidavit Annexure R2/A, which provides for “Turn Around Time(TAT)” for delivery of goods as well as the penalty clauses. In view of the said agreement between the OP No. 1 and the OP No.2, the OP No.1 cannot decline its liability in the delivery of the goods to the consumers. Further, its plea of non-joinder of seller as well as the manufacturer of the mobile set is also of no avail to it as the Complainant has no grievances with regard to the price as well as the quality and functioning of the mobile set in question and thus, neither the seller nor the manufacturer of the product in question are necessary party for the adjudication of the dispute/controversy involved in the present complaint.

                Now, coming to the plea taken by the OP No.2, it is found that the pick-up date of the product in question as per Annexure R2/1 was 12.10.2019 at 17:59:00 hours whereas the same had, admittedly, been delivered to the Complainant on 22.10.2019. As per Annexure C-4, the product could not be delivered as the Complainant was not found at the given address. However, there is no explanation or clarification as to why the product could not be delivered during the period from 13.10.2019 to 18.10.2019. Further, there is no clarification for non-delivery of the product on 20.10.2019 and 21.10.2019. The contact no. of the Complainant was available with OP No.2 and thus, there was clear lapse on the part of OP No.2 while not delivering the product in question in time i.e. 16.10.2019.

                From above discussion, it is crystal clear that there has been lapse and deficiency on the part of the OPs while delivering the product in question to the Complainant; hence, the Complainant is entitled to relief.

7.             Coming to relief, it is found that the mobile set was to be given by the Complainant to his wife as gift on the occasion of “Karva Chauth” and thus, the said occasion had a lot of emotional significance for the Complainant as well as for his wife. It is pertinent to mention here that a Hindu married wife, on this occasion observes fast for the whole day praying for the longevity and good health of her husband.

                Since the product has already been delivered to the Complainant, in the facts and circumstances of the case, a lump-sum compensation of Rs. 10,000/- on account of mental agony, harassment, litigation charges would be adequate and sufficient, to be paid by the OPs in equal proportion, to the Complainant.

8.             The OPs shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the awarded amount shall carry an interest at the rate of 9% from the date of this order. Further, the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:07.02.2022

 

                Dr. Pawan Kumar Saini                Satpal       

                                  Member                          President

 

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

 

                                                Satpal                     

President