By Smt. PREETHI SIVARAMAN.C, MEMBER
1.The complaint in short is as follows:-
Complainant decided to purchase a black pair of shoes by believing theadvertisement and other offers in the website of opposite parties. The website offered varieties of offers, representation and feed backs for their products manufactured by second opposite party and distributed through first opposite party’s online platforms. Opposite party No.2 represented that the shoes are world class having best quality and they advertised the photographs and price of the shoes through opposite party No.1 platform.
2. Complainant paid Rs. 2799/- to opposite parties and they delivered the product in a well packed packet. Opposite parties delivered the Lee Cooper Lace up for men on 24/08/2020 and complainant collected the product and paid the amount at the time of delivery (COD). On using the same it was found that the shoe is defective. The polished portions are began to fall off, the leather is breaking into granules, sole is having minute cracks and the shoe was seen having inherent manufacturing defects. The received shoe is different from the photographs of the shoe shown in the advertisement. The product is not fit for use.
3. The complainant informed the opposite parties through phone but nothing was happened. Complainant bought the shoe for wearing for a function. But after use of the shoe he realised that granules are coming out from the shoe and minute cracks were seen and later the cracks open up. Some black powder was seen coming out from the shoe. Complainant lost Rs.2799/- and he suffered a lot and the experience was much more than explaining. Everybody was saying to complainant that old useless shoes were sold by the opposite parties to the complainant.
4. Complainant again stated that opposite parties attracted the customers through their advertisement and other offers in visual format and there were promises for the return of the money. Complainant waited for offer period and till date, but the refund was not given to him by opposite parties. Opposite parties are advertising false, baseless, flowery advertisements and poor consumers are invited to buy the goods. The mail sent to their mail Id was not responded and the customer number shown in the advertisement was also useless. The opposite parties committed gross deficiency in service by supplying the defective product to complainant. Hence this complaint. There is clear deficiency in service and unfair trade practice from the side of opposite parties.
5. The prayer of the complainant is that, he is entitled to get a full refund of Rs. 2799/-, the cost of the shoe with 12% interest till realisation, Rs.10,000/- as compensation on account of deficiency in service and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant and cost of the proceedings.
6. On admission of the complaint notice was issued to the opposite parties and
notice served on them and opposite party No.1 appeared before the Commission through their counsel and filed version. Opposite party No.2 received notice on 17/04/2021, but they did not appear before the Commission. Hence on 29/09/2021 opposite party No.2 set exparte.
7. In their version opposite party No.1 denied all the allegations levelled by complainant against them. They again stated that entire complaint is nothing but specific and centric to the manufacturer that means opposite party No.2 in the present complaint. Complainant has wrongfully impleaded opposite party No.1, who only acts as an online intermediary under present complaint. Hence the complaint deserves to be dismissed. The whole grievance of the complainant pertains to alleged defects in the pair of shoes which is manufactured by opposite party No.2 and purchased from a third party seller. Complainant has categorically failed to produce the invoice against purchase of the product or any document to establish any kind of communication between complainant and opposite party No.1.
8. They again stated that, complainant has himself mentioned that complaint is pertaining to the inherent manufacturing defects of the product due to which the complainant has himself approached the manufacturer that means opposite party No2 and opposite party No.1 being a mere intermediary and not the manufacturer of the product cannot be held liable for any manufacturing defect in the product. Opposite party No.1 again stated that they are an online market place E-commerce entity as defined under Consumer Protection Act 2019. The flipkart platform is electronic market place model E-commerce platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent customers. The sellers are separate entity being controlled and managed by different persons. Thus for any act of the seller the market place E-commerce platform or its operating entity cannot be held liable. They only acts as an intermediary through their web interface and provide a medium to various sellers all over India to offer for sale and sell their products to the users of the flipkart platform. Opposite party No.1 does not directly or indirectly sells any products on flipkart platform. They again stated that they have no role in providing warranty of the product sold by independent seller through the flipkart platform. The services of them are similar to a shopping mall where various shops are rented out to different sellers who independently carry out sale proceedings with the customer of the shopping mall and in case of any defect in the goods sold by sellers in the shopping mall, it is the shop owner or seller who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. There is no privity of contract between complainant and opposite party No.1. Hence complaint may be dismissed.
9. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A4. Ext.A1 is the copy of the delivery message. Ext.A2 is the copy of delivery message. Ext.A3 is the copy of the details and MRP of the shoe purchased by complainant. Ext.A4 is the Photostat copy of the picture of the shoe. Thereafter opposite party No.1 also filed affidavit and the document they produced is marked as Ext. B1. Ext. B1 is the copy of the Terms of use for using the online portal (Flipkart).
10. Heard complainant and opposite parties. Perused affidavit and documents. The following points arise for consideration:-
- Is there any manufacturing defects for the product mentioned in the complaint?
- Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
- If so, reliefs and cost
11. Point No.1 :-
Case of the complainant is that the shoe purchased by him through opposite party No.1 and manufactured by opposite party No.2 was defective and opposite parties did not take any steps to resolve the grievance of the complainant. Opposite party No.2 the manufacturer of the shoe was not present before the Commission after receiving the notice from this Commission. Hence they set exparte. They are the manufacturer of the shoe in the present complaint. As per the complaint it is seen that complainant ordered the shoe on 07/08/2020 and he received the shoe on 24/08/2020. It is a costly one worth Rs 2799/-. Complainant filed this complaint before the Commission on 17/03/2021. That means complainant filed the complaint within seven months of its purchase. As per complainant’s case he stated that the shoe is defective and the polished portions are began to fall off, the leather is breaking is granules, sole is having minute cracks and the shoe was seen having inherent manufacturing defects. Moreover he stated in the complaint that the shoe is different from the photographs in the advertisement and product is not fit for use. The minute cracks later developed into prominent cracks.
12. On 08/07/2022 complainant produced the shoe before the Commission as per the direction of Commission. On verification it is noted that there is defect over the shoe. After verification shoe returned back to complainant. Complainant argued that the defects were seen within a few days after the purchase of the shoe. He was unable to use the shoe in public. Moreover after receiving notice from this Commission, opposite party No.2 not appeared before this commission and not filed their version and affidavit. From the facts stated above, we are on the opinion that the shoe had manufacturing defect. That is why it became defective within few days of its use . Moreover the shoe mentioned in the complaint is a costly one.
13. Pont No.2 and 3:-
As per Ext.A1 and A2 it is seen that complainant ordered the shoe on 07/08/2020 and to delivered on 24/08/2020. As per Ext A3, it is seen that complainant purchased a black colour one pair of shoe and the MRP is Rs.2799/- (inclusive of all taxes) and Ext. A4 is the Photostat copy of the photograph of the shoe. In this case, we are directly checked the shoe at open court and we realised that the shoe is defective. But there is no documents to prove that complainant informed the defects of the shoe purchased by him to opposite party No.2, which is manufactured by opposite party No.2. Moreover there is no document to prove that he informed the defects of the shoe to opposite party No.1 also.
14. In the complaint, complainant stated that he believed the advertisement and other offers in the website of opposite parties .He again stated that, he purchased one pair of black shoe through first opposite party’s online platform. He himself admitted that he got the shoe in a well packed condition. Complainant always mentioned that the photographs and price was advertised by opposite parties and he again stated that payment was accepted by the opposite parties. He again stated that opposite parties are having a good name and he believed the brand name of opposite parties. Complainant did not specifically mentioned in the complaint that which opposite party is liable to compensate the complainant. He simply stated ‘’opposite parties’’. From the complaint and affidavit filed by complainant we are unable to identify to whom complainant paid the amount and who delivered the product to complainant . From the complaint we are on the opinion that the shoe had manufacturing defect. Moreover he stated that the shoe had inherent manufacturing defect and the product is not fit for use. He again stated that opposite parties are submitting many advertisement and other offers in visual format and in reality even the phone numbers given by them will not function and no one will respond. Complainant again stated that he waited their offer period and till date the refund was not given. From the above statements we are unable to identify who will refund the money to complainant. There is nothing mentioned about opposite party No.1 in this case.
15. Complainant again stated that he sent an email to opposite party No.2 in their email Id and which was not responded and customer number shown in the site also is useless. In the version of opposite party No.1 they stated that they are only an intermediary between complainant and the seller of the product and they only provide a medium to various sellers all over India to offer for sale and sell that products. But that statements are not taken into consideration. Opposite party No.1 also have responsibility for the products sold through their platform. They must know the quality and the veracity of the products sold through them. But in this case complainant not directly mentioned about opposite party No.1 in the complaint. Nothing mentioned about the platform from which he had seen the offers and advertisement. From the complaint and affidavit of complainant it is not clear that whether complainant saw the offers and advertisement from opposite party No.1 platform or opposite party No.2 platform. Moreover we have no idea from the complaint that complainant paid the amount to which opposite party at the time of delivery. The main contention of complainant is that the shoe had manufacturing defects. He stated in the complaint that shoe had inherent manufacturing defects. So we are on the opinion that in this particular case opposite party No.1 is not responsible for the defects caused to the shoe mentioned in the complaint. Opposite party No.2 is responsible for the quality and defects of the shoe manufactured by them. Complainant stated in the complaint and affidavit that he received the product in a well packed packet. Moreover he stated that product seems to be well packed and polished. There is no document to prove that complainant contacted opposite party No.1 to redress his grievance. So there is no role for opposite party No.1 in this particular case. The product in question is having manufacturing defects. Hence opposite party No.2 is liable to compensate the complainant for the defects caused to the shoe. Hence the Commission finds that there is deficiency in service and unfair trade practice on the part of the opposite party No.2 as alleged in the complaint. Hence we allow this complaint holding that opposite party No.2 is deficient in service.
16. We allow this complaint as follows:-
- The opposite party No.2 is directed to refund Rs. 2,799/- (Rupees Two thousand seven hundred and ninety nine only) to complainant the cost of the shoe with 12% interest till realisation.
- The opposite party No.2 is directed to pay compensation of Rs.10,000/-(Rupees Ten thousand only) to the complainant on account of deficiency in service on the part of opposite party No.2 and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite party No.2 is also directed to pay Rs.2,000/-(Rupees Two thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite party No.2 is liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 19th day of June , 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1 : Copy of the delivery message.
Ext.A2 : Copy of delivery message.
Ext.A3 : Copy of the details and MRP of the shoe purchased by complainant .
Ext.A4 : Photostat copy of the picture of the shoe.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1
Ext.B1 : Copy of the terms of use for using the online portal (Flipkart).
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
