SMT.MOLYKUTTY MATHEW : MEMBER

     This is a  complaint filed  by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the opposite parties   to refund the value of Fitbit Ionic Smart watch Rs.22,424/-  along with  compensation and cost to the complainant   for  the deficiency of service on their part.

The case of the complainant in brief :

  The complainant had placed an online order for a Fitbit Ionic Smart watch (Blue strap) on 18/7/2020 through 1^st OP  through their order ID OD119191821307511000 dtd.25/7/2020 and paid an amount of  Rs.22,424/- through the complainant’s net banking which includes the delivery charges to be delivered to complainant’s office address of Rajiv Gandhi Ayurveda Medical College and hospital Chalakkara, New Mahe.  On placing the order through the online platform the complainant got a message from 1^st OP stating that the item will be delivered on 28/7/2020,howeer on 28/7/2020 it was informed that the delivery  is re-scheduled  owing to un-foreseen issue faced by them hence the service provider has re-schedule the delivery and the product may be delivered by 30/7/2020.  Then on 30/7/2020 the delivery boy has delivered the package in complainant’s office address.  On opening the same package it was noticed that the watch was not found in the package and in the inner original packet of watch box was found in an old waste packet.  Immediately the complainant informed the matter to delivery boy and informed that the watch is missing in return he stated that he can’t do anything in this regard and the delivery boy advised the complainant to contact the customer care of 1^st OP.  Then the complainant contacted 2^nd OP also.  But no response from the side of both Ops.  On repeated chatting and follow up on 24/8/2020 the OP’s assured the complainant that the concerned team will get back with an update by 27/8/2020.  But on 8/9/2020 one message received  complainant’s  mobile phone from OP stating that issue is resolved.  But actually the problem is not solved by the Ops.  At last on 17/10/2020 the complainant sent a grievance petition to OP’s office at Bangalore by registered post.  But no reply send by OP’s side.  So there is  deficiency of service and unfair trade practice on the part of OPs .  Hence the complaint.

           After filing the complaint notice was issued to both opposite parties. 1st Op entered appearance before the commission and  submitted his written version.  1^st OP contended that Flipkart internet Pvt.Ltd is a company only act as an intermediary through web interface www.flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their products to the users of the flipkart platform.  1^st OP never came in possession of the actually ordered product or the alleged damaged product  delivered to the complainant at any point of time.  The refund of the product is the responsibility of the manufacturer.  The 1^st OP has stated that the seller of the  product is Tech connect Retail Pvt.Ltd, so the complaint is bad for non joinder of necessary party.  The 1^st OP has not caused any financial loss or mental agony to the complainant.  So OP.1 is merely online intermediary cannot be held liable for the same.  So the contention of OP.NO.1 is that there is no deficiency of service or unfair trade practice on the part of 1^st OP and the complaint may be dismissed. OP.No.2 filed vakalath and no version filed before the commission.  So OP.NO.2’s name called absent and set exparte.

    On the  basis of the rival contentions by the  pleadings  the following issues  were framed for  consideration.

1 . Whether there is any deficiency  of service on the part of  the opposite parties .

2. Whether the complainant is entitled for any relief?

3.  Relief and cost.

      The evidence consists of the  oral testimony of PW 1 and Exts.A1 to A3 marked and MO1 the courier box along with the product packing ”box of Fitbit Ionic “ also produced before the commission. On the OP’s side Exts.B1&B2 documents marked.  No witness examined and  no oral evidence  from the side of Ops.

Issue  No.1:   

     The complainant adduced evidence  before the commission by  submitting   his  chief  affidavit  in lieu  of  his chief examination to the  tune of the pleadings in the complaint and denying  the contentions in the version.  He was cross  examined as PW1 by OP.No1.  He relied on Exts.A1 to A3 and MO.1. In Ext.A1 shows that the India post, Registered letter issued by complainant to 1^st OP. Ext.A2 is the tax invoice of the Fitbit Ionic smart watch dtd.25/7/2020 and  paid Rs.22,424/- to  1^st OP as the cost of the watch through the complainant’s net banking system.  In Ext.A3 shows the message from  1^st OP.  As per the chat 1^st OP stated that “ we understand that you’ve received an empty parcel of  your order OD119191821307511000”-we  can relate to  your concern and know how important it is for you to get the issue fixed.  We will definitely help you with this”.  But the 1^st OP is not resolve the problem.  Moreover the complainant produce the MO1 before the commission  the material object that” The courier box along with the packing box of Fitbit Ionic”. So  it is clear that the ordered fitbit Ionic smart watch was not delivered to the complainant.  Immediately the complainant informed the mater to Ops.  But the Ops are not ready to  solve the problem.  The Ops are cheated the complainant by receiving the amount of Fitbit Ionic smart watch and not delivered the product to the complainant.  The act of the Ops  the complainant  caused much mental  agony and financial loss.  There is  deficiency of service and unfair trade practice on the part of OPs .  Hence the  Issue No.1 is found in favour of the complainant and answered accordingly.

Issue No.2&3:

   As discussed above ,the Ops are not ready to deliver  a new  Fitbit Ionic smart watch to the complainant or refund the value of the product.  The complainant produce Ext.A2 document which clearly shows that the complainant had paid Rs.22424/- to 1^st OP.  According to  the complainant failure to provide Fitbit Ionic smart watch the Ops are directly   bound  to redress the grievance caused to the complainant.  Therefore we hold that the  opposite parties 1&2  are jointly and severally  liable to refund the value of Fitbit Ionic smart watch Rs.22,424/- along with Rs.5000/- as compensation and Rs.2000/- as litigation cost to the complainant.   Thus the issue No.2&3 are also accordingly answered.

               In the result, the complaint is allowed in part directing the opposite parties 1&2  are jointly and severally  liable to refund the value of Fitbit Ionic smart watch Rs.22,424/- along with Rs.5000/- as compensation and Rs.2000/- as litigation cost to the complainant  within  30 days of receipt  of this order.  In default the amount of Rs.22424/- carries 9% interest  per annum  from the date of order till realization.  Failing which the   complainant is at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019. 

Exts:

A1-  Postal receipt of notice

A2-Tax invoice

A3-Whats app messages(screen short)

B1- Guidelines for (FDI) on e –commerce

B2-Flipkart terms of use

MO1- Cover along with product packing box.l

MO1- mobile phone

PW1-C.H.Velayudhan-complainant

Sd/                                                                       Sd/                                                              Sd/ 

PRESIDENT                                               MEMBER                                                        MEMBER

Ravi Susha                                         Molykutty Mathew.                                                     Sajeesh K.P

eva                                                  /Forwarded by Order/

                                                    ASSISTANT REGISTRAR