Punjab

Ludhiana

CC/21/329

Shameesh Aggarwal - Complainant(s)

Versus

M/s Flipkar Internet Pvt.Ltd - Opp.Party(s)

Sachin Vasudeva

08 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 329 dated 08.07.2021.                                                        Date of decision: 08.08.2023.

     

Shameesh Aggarwal aged 44 years son of Sh. Kulbhushan Aggarwal, resident of House No.271, Street No.7, New Deep Nagar, Backside Arya College for Boys, Civil Lines, Ludhiana.                                                                                                                                                            ..…Complainant

                                                Versus

M/s. Flipkart Internet Private Ltd., Buildings Alyssa, Begonia & Cove Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Bengauru-560103, Karnataka.                                                                                                                                                                                              …..Opposite party 

Complaint Under Section 36 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Sachin Vasudeva, Advocate.

For OP                           :         Sh. J.D. Singh Ahuja, Advocate.    

 

ORDER

PER SANJEEV BATRA, PRESIDENT

 

1.                Briefly stated, the facts of the case are that on 08.11.2020, the complainant had placed an order ID120169033497530000 with the opposite party with expected date of delivery as 26.11.2020 and paid a sum of Rs.5777/- through credit card of ICICI Bank. The details of the delivered items are reproduced as under:-

Sr. No.	Items	Delivery Dates	Returned Date
1.	Lee skinny Men Jeans	15.11.2020	16.11.2020
2.	Levis Skinny Men Blue Jeans	11.11.2020	16.11.2020
3.	Pepe Slim Women Blue Jean	11.11.2020	12.11.2020
4.	Metro Boots for (Women)	25.11.2020	Kept
5.	Metro Oxford Shows for men	Not delivered

 

The complainant stated that he received statement of accounts from his HDFC Bank credit card inked with Flipkart showing debit of Rs.2405/- levied on his credit card on 06.11.2020 by Flipkart upon which he immediate contacted customer care team of opposite party on 16.11.2020 and its representative informed the complainant that no such amount of Rs.2405/- has been charged by Flipkart as shown in the account statement. Thereafter, the complainant contacted customer care of HDFC Bank who informed that the said transaction of Rs.2405/- has been done at Flipkart and as such, the complainant had to bock his HDFC Bank Credit card. According to the complainant, on 25.11.2020, he was delivered only Metro Boots for Women but was not delivered Metro Oxford shoes for Men and he lodged a complaint on phone at customer care of the opposite party in response to which he received a reply, which is reproduced as under:-

“We’d like to let respondent know that respondent recent order has been cancelled as our systems have detected irregularities in the payment methods used for this purchase. We always ensure that the transactions made using online payment methods are authorized and secure this is for account security. This would also mean that respondent will no longer be able to login to respondent Flipkart account.”

The complainant further stated that he sent numerous Emails to the opposite party with request to unblock his account and either to deliver the Metro Men shoes  or to refund the amount of Rs.1619/- already paid to them but in spite of several emails but neither the opposite party delivered the shoes nor had refunded the amount. The complainant served a legal notice dated 23.12.2021 upon the opposite party calling upon to refund the amount of Rs.1619/- already paid due to non-receipt of Metro Men Shoes and to unblock his account but no reply was received. The complainant further stated that he lodged complaint before Grievance Cell by giving remarks, which is reproduced as under:-

“We are sorry for the trouble caused with OD120169033497530000. As the customer already proceeded with the legal action. Hence, closing the complaint from our end”

According to the complainant, the act of the opposite party is negligent and malafide by not refunding the amount in spite of various reminders and legal notice dated 23.12.2021 due to which the complainant has suffered mental tension, agony and harassment. In the end, the complainant prayed for directing the opposite party to refund the amount of Rs.1619/- for non-receipt of Metro Men shoes and to pay compensation of Rs.1,00,000/- besides litigation charges of Rs.20,000/-.

2.                Upon notice, the opposite party appeared and filed written statement by taking preliminary objections that the complaint is not maintainable; suppression of material facts by the complainant etc. The opposite party stated that is an electric platform which acts as an intermediary to facilitate sale transactions between the sellers and the customers. In this manner, OP1 has acted only as an intermediary as per Section 2(1) (w) of the Information Technology Act, 2000 and as per Section 79 of the Information Technology Act, 2000, the function of the intermediary is limited to providing access to a communication system.  All the products on Flipkart platform are sold by the third party seller and the opposite party does not offer or provide any warranty to the end buyers of the product through its platform. The opposite party further stat5ed that section 5(1) of Consumer Protection (E-Commerce) Rules, 2020 also provides for exemption to market place e-commerce entity under sub section 1 of Section 79, who complies with sub-Section (2) and (3) of that section. Moreover, the opposite party does not directly or indirectly sell any products on Flipkart Platform rather all the products on Flipkart Platform are sold by third party sellers, who avail the online market place services provided by the opposite party on terms decided by the respective sellers only. The opposite party further stated that it neither offers nor provides any assurance and/or offers pickup or refund facility to the end buyers of the product. Moreover, the product purchased by the complainant had not been sold by the opposite party but by an independent third party seller. The opposite party further stated that the alleged fraudulent use of his credit card can be explained or rectified by the bank alone and not by the opposite party. As the product was purchased from the third party seller who had sold the product to the complainant through the third party logistic service provider as such the opposite party never came in possession of the actually ordered product or the alleged missing product at any point of time. Moreover, the opposite party conducted an independent internal investigation upon which some unauthorized and fraudulent methods for making the payment of the purchase of the products through the Flipkart platform was found. According to the opposite party, when the complainant raised his grievance with the opposite party, then it in the capacity of intermediary duly escalated the same to the seller of the product who intimated back to it that it has duly delivered the product to the complainant and same has also been confirmed by the third party logistic service provider and as such, the dispute, if any, was only between the complainant and the third party seller.  

                   On merits, the opposite party reiterated the crux of averments made in the preliminary objections. The opposite party stated that the account of the complainant was blocked as a protective measure as during investigation on the part of the opposite party there were unauthorized and fraudulent methods found for making the payment for the purchase of products through the Flipkart platform. The opposite party has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                The complainant filed replication to the written statement of the opposite party reiterating the facts mentioned in the complaint and controverting those made in the written statement.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered Ex. C1 to Ex. C6, Ex. C9 are the copies of emails, Ex. C7 is the legal notice dated 23.02.2021, Ex. C8 is the postal receipt and closed the evidence.

5.                On the other hand, the counsel for the opposite party tendered affidavit Ex. RA of Ms. Sheetal Tiwari, Authorized Signatory of the opposite party along with documents Ex. R1 is the copy of guidelines issued by Government of India, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion (FC Section), Ex. R2 is the copy of Flikpart Terms of use

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavits and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

7.                On 08.11.2020, the complainant placed an order of five items with the opposite party expecting its delivery to be made on or before 26.11.2020, out of which four items were received by the complainant and the fifth item Metro Oxford Shoes for Men could not be delivered to him. On 25.11.2020, the complainant contacted the opposite party through customer care service and raised a grievance of non-delivery of said item. On 26.11.2020, vide email Ex. C3, a response was received whereby not only the recent order was cancelled but the complainant’s right to login to opposite party’s Flipkart account was extinguished. Ex. C3 reads as under:-

“We’d like to let respondent know that respondent recent order has been cancelled as our systems have detected irregularities in the payment methods used for this purchase. We always ensure that the transactions made using online payment methods are authorized and secure this is for account security. This would also mean that respondent will no longer be able to login to respondent Flipkart account.”

Thereafter, a trail of emails Ex. C1 to Ex. C6 and Ex. C9 were exchanged between the parties whereby the complainant repeatedly requested the opposite party to refund an amount of Rs.1619/- and further to unblock his account but the opposite party did not yield. A legal notice dated 23.02.2021 Ex. C7 was also sent to the opposite party but vide email dated 25.06.2021 Ex. C9, the opposite party sent the following remarks:-

“We are sorry for the trouble caused with OD120169033497530000. As the customer already proceeded with the legal action. Hence, closing the complaint from our end”

8.                O the other hand, the opposite party has emphasized that the opposite party is an electronic platform marketplace mode E-Commerce which acts as an intermediary to facilitate the sale transactions between the independent third party seller and independent end customers and it cannot be held liable being “Intermediary”.   

9.                Before adverting to the merits of the case, it will be imperative to refer the Consumer Protection (E-Commerce) Rules 2020 which were framed to protect the rights and interest of consumer and to prevent unfair trade practice in ‘e-commerce’ business. Section 2(16) of the Consumer Protection Act defines as under:-

                   16.     “e-commerce” means buying or selling of goods or services                        including digital products over digital or electronic network.

Further rule 3(b) and 3(g) of the Consumer Protection (E-Commerce) Rules, 2020 (hereinafter called as ‘Rules 2020’) provides the definition of ‘e-commerce entity’ and ‘marketplace e-commerce entity’

“3(b) “e-commerce entity” means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce, but does not include a seller offering his goods or services for sale on a marketplace e-commerce entity.

3 (g)  “marketplace e-commerce entity” means an e-commerce entity which provides an information technology platform on a digital or electronic network to facilitate transactions between buyers and sellers.”

10.              Under these Rules 2020, it has been further mandated that every e-commerce entity will provide all information related to its business operations on its platform and shall also establish “Consumer Grievance Redressal Mechanism” which shall redress the consumer complaint within one month from the date of receipt of the complaint.

                   Further Rule 5 of the Rules, 2020 enlists liability of marketplace e-commerce entities that such e-commerce entities are bound to ensure the quantity and quality of nature of product and services, information with regard to return, refund, delivery and shipment etc.

                   Further Rule 8 of the Rules, 2020 provides that any contravention of provisions of these rules would entail an action as per Consumer protection Act.

11.              It may be noted that the complainant immediately raised his grievance on 25.11.2020 with regard to non-receipt of Metro Oxford Shoes men but instead of complying with the provisions of the Rules 2020, the opposite party abruptly cancelled the order as well as account of the complainant maintained with the opposite party’s end was blocked. Before scuttling the rights of the complainant, no reasonable opportunity of being heard was afforded to the complainant and he has been condemned unheard. It is a matter of common knowledge that the digital platforms like that of the opposite party aggressively advertise the products and other umpteen number of incentives so to lure prospective customers to purchase the products offered by them or avail services. Once a customer purchases product or avails the service, some incentives in the form of cash back points, or otherwise are credited to the account of the said customer which carries some pecuniary value. So it was bounden duty of the opposite party to seek explanation from the complainant before infringing his valuable rights. It is very strange that the professional companies like the opposite parties had closed the complaint by observing that the customer had already proceeded with the legal action. Rather had the opposite party acted efficiently and in accordance with mandate of Rules 2020, the situation for filing of the present complaint could to have arisen. Further, Rule 3(k) of Rues 2020 provides the definition of “Seller” which means the product seller as defined in clause (37) of Section 2 of the Act and shall include any service provider.

                   Also Section 2(38) of the Consumer Protection Act stipulates that ‘product service provider’, in relation to a product, means a person who provides any service in respect of such product. So it is evident that the act and conduct of the opposite party falls within the purview of these definitions. Therefore, there is a deficiency in service on the part of the opposite party and the opposite party cannot escape their liability when they actively participated in the promotion, sale and service of the product and at the same time failed to redress the grievance of the complainant within stipulated period with regard to refund of price of one item amounting to Rs.1619/-.   

12.              Section 2(47) (viii) of the Consumer Protection Act defines the “Unfair trade practice” which means trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including refusing, after selling goods or rendering services, to take back or withdrew defective goods or to withdraw or discontinue deficient services and to refund the consideration thereof, if paid, within the period stipulated in the bill or cash memo or receipt or in the absence of such stipulation, within a period of thirty days.  The case of the complainant is also squarely covered in this section. The opposite party has failed to provide refund of amount of Rs.1619/- to the complainant within stipulated period and as such, there is unfair trade practice on the part of the opposite party. As such, in our considered opinion, it would be just and appropriate if the opposite party is directed to refund Rs.1619/- to the complainant and to unblock the ‘Flipkart’ account of the complainant with all its incidental and consequential benefits along with composite compensation of Rs.10,000/-.

13.              As a result of above discussion, the complaint is partly allowed with an order that the opposite party shall refund Rs.1619/- to the complainant with interest @8% per annum from the date of filing of complaint till the date of actual payment. The opposite party is further directed to unblock the ‘Flipkart’ account of the complainant with all its incidental and consequential benefits. The opposite party shall further pay a composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of the above order be made within 30 days from the date of receipt of copy of order Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

14.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (Sanjeev Batra)

                    Member                                           President

 

Announced in Open Commission.

Dated:08.08.2023.

Gobind Ram.

 

 

Shameesh Aggarwal Vs M/s. Flipkart Internet Pvt. Ltd.            CC/21/329

Present:       Sh. Sachin Vasudeva, Advocate for complainant.

                   Sh. J.D. Singh Ahuja, Advocate for OP.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with an order that the opposite party shall refund Rs.1619/- to the complainant with interest @8% per annum from the date of filing of complaint till the date of actual payment. The opposite party is further directed to unblock the ‘Flipkart’ account of the complainant with all its incidental and consequential benefits. The opposite party shall further pay a composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of the above order be made within 30 days from the date of receipt of copy of order Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (Sanjeev Batra)

                    Member                                           President

 

Announced in Open Commission.

Dated:08.08.2023.

Gobind Ram.