M/s Flip Card Situated V/S Sh.Sandeep Kumar - Consumer Court Case

Haryana

Karnal

414/13

Sh.Sandeep Kumar - Complainant(s)

Versus

M/s Flip Card Situated - Opp.Party(s)

Sarita

01 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

Complaint No.414 of 2013

Date of instt.: 26.09.2013

Date of decision:01.04.2016

Sandeep Kumar son of Sh.Ashok Kumar resident of house No.337, Gali No.7, Gandhi Nagar, Karnal.

. ……..Complainant.

Vs.

1.M/s Flipkart situated at 447/C, First Floor, near Telephone Exchange, Ast –A, CRS 12^th Floor, Mn, 4^th BLK, Koramangala, Bangalore.

2.M/s WS Retail Service Pvt.Ltd. Ware House Address No.42/1,& 43, Kachera Kanahalli village Jadigenahalli Hobli Hoskote Talok, Bangalore, Karanatka.

3. Dell India Private Limited, Divyashree Greens, Ground Floor, 12/1, 12/A , 13/1A, Challagha H.Q.village Varthur Hobli, Banglore(South)Bangalore – 560071 State, Karnataka.

………… Opposite Parties.

Complaint u/s 12 of the Consumer

Protection Act.

Before Sh.K.C.Sharma……….President.

Sh.Anil Sharma…….Member.

Present:- Smt.Sarita Devi Advocate for the complainant.

Sh.Abhey Sahu Advocate for the Opposite Parties no.1 and 2.

Sh.Dheeraj Sachdeva Advocate for the Opposite Party no.3.

ORDER:

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he purchased one Dell Vostro 2520 laptop (2 ND GEN PDC/2GB/320 GB/LINUX (GREY) bearing serial no.771 xxx1 through OP No.1 sent by Opposite Party No.2. He had agreed to purchase Pentium Dual core second generation Processor chip and the same model was shown to him while receiving the payment of Rs.22690/-, vide bill order ID No.OD30830031615 by the Opposite Party no.1. However, vide delivery receipt No. 1136934 dated 2.9.2013, laptop with Pentium -4 processor was supplied. He complained to the Opposite Party no.1 and was assured that either laptop would be replaced or the amount would be refunded, but the matter was postponed on one pretext or the other. He called Opposite Party no.1 repeatedly on telephone from 3.9.2013 to 18.9.2013, but in vain. Ultimately, the Opposite Parties flatly refused to replace the laptop. Due to such act and conduct of the Opposite Parties, he suffered mental harassment apart from financial loss.

2. Notice of the complaint was given to the Opposite Parties. The Opposite Party no.1 appeared and filed written statement disputing the claim of the complainant. Objections have been raised that the complainant is not a consumer of the Opposite Party no.1; that there was no privity of contract between the complainant and Opposite Party no.1 and that there was no deficiency in services on the part of Opposite Party no.1.

On merits, it has been submitted that the complainant purchased the computer from seller Opposite Party no.2 by using website of Opposite Party no.1 and the said transaction was bipartite contact between seller and buyer covered by “terms of use” enumerated on the website. As per those terms , the Opposite Party no.1 had no right, title or interest over the product and there was no obligation or liability on its part in respect of such contract entered between the buyer and sellers. The Opposite Party no.1 had a very limited role as a intermediary, in providing only the online plat- form and no product was sold by it. The Opposite Party no.1 provides online platform where different registered sellers sell their product and the visitors/buyers purchase such products from respective sellers on the aforesaid website. Opposite Party No.1 is not involved in such transactions except providing platform and contract is only between seller and buyers. Therefore, Opposite Party no.1 cannot be held liable for any liability owning to such contract. It has further been pleaded that the complainant had placed order with the Opposite Party no.2 on the website operated by Opposite Party no.1 and the laptop was delivered by Opposite Party no.2 at the address of complainant. The complainant approached the customer support of Opposite Party no.1 claiming that he was not happy with the product, therefore, customer support informed the complainant about 30 days replacement guarantee of Opposite Party no.2 and accordingly initiated “wait and refund” which means the laptop shall be collected from the complainant and sent to the seller and the amount shall be refunded by the seller to the complainant subject to complainant returning the laptop as per the return policy. However, the complainant refused to return the laptop, when approached. The other allegations made in the complaint have been specifically denied.

3. The Opposite Party No.2 filed separate written statement controverting the claim of the complainant. It has been averred that Opposite Party no.2 supplied the laptop as per the order. The complainant had approached the customer support of Opposite Party no.1 who in turn intimated the Opposite Party no.2 about the grievance of the complainant. Accordingly, return and refund was approved under 30 days replacement period as per the policy. However, the complainant refused to return the laptop when pick up was arranged on 23.9.2013. Under such facts and circumstances, the Opposite Party no.2 was not in a position to assist the complainant, when he himself refused to cooperate to redress his grievance. The complainant had put the laptop in use and filing of the complaint was an afterthought attempt . It has further been pleaded that the complaint is false, baseless and has been filed just in order to harass the Opposite Parties.

4. The Opposite Party no.3 also filed written statement disputing the claim of the complainant on various grounds. Objections have been raised that the complainant has no locus standi and cause of action and that the complaint has been filed just to harass and pressurize the Opposite Parties to accede to his illegal demand.

On merits, it has been admitted that the complainant ordered Dell Vostro 2520 bearing service tag no.771xxx1 to Opposite Party no.1 on 31.8.2013. It has been submitted that computer/laptop was delivered to him on 2.9.2013 by the Opposite Party no.1. The Opposite Party no.3 was always ready and willing to resolve the complaint of the complainant but the complainant never approached the Opposite Party no.3, therefore, there could be no question of any deficiency in services on the part of the Opposite Party no.3.

5. In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C5 have been tendered.

6. On the other hand in evidence of the Opposite Parties, affidavit of Lokesh Rajpal Ex.OW1/A, affidavit of Anushree Saksena EX.OW2/A and affidavit of Nikunj Murukutla Ex.RW1/A have been tendered.

7. We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

8. The complainant had placed order for Dell Vostro 2520 leptop (2 ND GEN PDC/2GB/320 GB/LINUX (GREY) bearing serial no.771 xxx1 through Opposite Party No.1 sent by Opposite Party No.2. As per his case, he agreed to purchase Pentium Dual core second generation Processor chip, and the order was placed on 30.8.2013 and the laptop with Pentium -4 processor was delivered on 2.9.2013. The Opposite Parties no.1 and 2 have asserted that return and refund was approved under thirty days replacement period as per the policy, but the complainant refused to return the laptop when the pick up was arranged on 23.9.2013.Therefore, the laptop of the complainant could not the replaced.

9. The documents Ex.C2 and Ex.C3 indicate that the complainant placed order for Pentium Dual core second generation Processor chip on 30.8.2013, as per specifications, the copy of which is Ex.C5and the payment was made by him at the time of delivery on 2.9.2013. It is clear from Ex.C6 that the Opposite Party no.1 received the return request of the complainant as the laptop which was supplied was of Pentium -4 core processor and assured him that the laptop delivered to him would be picked up within 1-2 days. The Opposite Party no.2 apologized for the inconvenience caused to the complainant and assured to refund the amount of Rs.22690/- to the bank account of the complainant within 5-7 days after the laptop was picked up. Thus, it is emphatically clear that laptop which was ordered by the complainant was not supplied and the Opposite Parties no.1 and 2 assured to refund the price of the said laptop to the complainant. There is no documentary evidence worth the name which may show that any person was sent by the Opposite Parties no.1 and 2 to pick up the laptop from the complainant and he refused to return the same. Had the complainant refused to return the laptop to any official of the Opposite Parties no.1 and 2, then at least written communication could be sent to him that the amount would not be refunded to him as he refused to return the laptop , but no such letter was issued by the Opposite party no.1 and 2 to the complainant. Therefore, in the absence of any documentary evidence, plea of the Opposite Parties no.1 and 2 that the complainant refused to return the laptop supplied to him, cannot be accepted.

10. The learned counsel for the Opposite Party no.1 vehemently argued that the Opposite party no.1 was just intermediary, because it operates trading facility platform over internet and it is not selling any product, which involves in any transaction except for providing platform and the contract was only between the seller i.e. Opposite party no.2 and the complainant. Therefore, the Opposite Party no.1 cannot be held liable.

11. The argument advanced by the learned counsel for the Opposite party no.1 cannot be accepted being devoid of force. The Opposite Party no.1 provided plat- form to Opposite party no.2 for selling product manufactured by Opposite party no.3. The complainant had also made the complaint to the Opposite party no.1, who in turn asked the Opposite party no.2 to refund the amount of the complainant as per the policy. The correspondence sent by the Opposite parties no.1 and 2 to the complainant is Ex.C6.The laptop was delivered by Opposite Party No.1. It is not the case of the Opposite Party No.1 that it was not charging any amount in the said transaction. As the laptop was delivered by Opposite Party No.1, it must have charged some amount for the said transaction from Opposite Party No.2, it cannot escape from its liability to the customer to whom goods are sold by the Opposite Party No.2.

12. In view of the aforediscussed facts and circumstances, it is established that the complainant was not supplied the laptop ordered by him and even after his complaint, neither the laptop was got replaced, nor the price paid by him was refunded. Thus, there was deficiency in services on the part of the Opposite Party No.1 and 2.

13. As a sequel to the foregoing discussion, we accept the present complaint and direct the Opposite Parties no.1 and 2 to refund the price of the laptop to the complainant. The complainant shall also be entitled for a sum of Rs.5500/- for the mental harassment suffered by him and for the litigation expenses. The Opposite Parties no.1 and 2 shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated: 01 04.2016.

(K.C.Sharma)

President,

District Consumer Disputes

Redressal Forum, Karnal.

(Anil Sharma )

Member.