BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.297 of 2021
Date of Instt. 08.09.2021
Date of Decision: 01.12.2022
Kewal Krishan aged 43 years S/o Sh. Gopal Krishan, R/o 167, Makhdoom Pura, Jalandhar.
..........Complainant
Versus
1. M/s Flipkart Internet Private Limited, Buildings Alyssa, Begonia and Clove Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Bengaluru 560103, Karnataka, India, through its Managing Director/Director/Manager/Partner/Authorized representative.
2. M/s Realme Mobile Telecommunications (India) Private Limited, 3rd Floor, Tower- B, Building Number 8, DLF Cyber City Gurugram-122002, Haryana, India, through its Managing Director/Director/Manager/Partner/Authorized representative.
3. M/s Realme Service Centre, F1-Shop No.4, 8/1, Green Park, Opposite All India Radio Station, Near Lajwanti Hospital, Jalandhar, through its Managing Director/Director Manager/ Partner/ Owner Authorized representative.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Rajat Chopra, Adv. Counsel for the Complainant.
Sh. A. S. Sohal, Adv. Counsel for OP No.1.
Sh. Vikas Sharma, Adv. Counsel for OPs No.2 & 3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein he has alleged that on 24.07.2021, the complainant ordered a cell phone bearing model no.Realme 8, variant 8/128 on the Mobile application of the opposite party no.1, the order number was OD122398676144830000. The said order was supplied successfully by the OPs No.1 & 2 jointly on 26.07.2021 to the complainant. The IMEI number of the cell phone is 860745055378995 and the payment of Rs.15,999/- for the said cell phone was made by complainant in cash at the time of delivery of the said cell phone. In this regard an invoice dated 25.07.2021 was also issued to complainant. The said mobile phone was covered under the 7 days return or replacement policy by the OP No.1. The screen shot of the return replacement policy of the OP No. 1 is on the record. After use of 2-3 days, the complainant found that the said cell phone is not working properly. He found that data processing is very slow and the said cell phone is lagging. The videos were not playing seamlessly, even complainant is unable to open calculator application due to error of software processor. On 01.08.2021 (within 7 days from the date of delivery of mobile phone), the complainant reported the matter to the OP No.3 i.e. local service centre of the OP No.2 and requested them to replace the cell phone, then the representative of the OP No.3 flatly refused the complainant to replace the same and suggested to communicate with the OP No.1. The OP No.1 openly told the complainant that the return replacement of the said mobile is covered by the OP No.1 only and he cannot interfere into their policy. On 02.08.2021, within return/replacement policy period, complainant lodged a complaint with OP No.1 and requested them for replacement of the said cell phone with the same mobile phone. The replacement request was registered successfully and the OP No.1 arranged a technician visit at the residence of complainant and the said technician was visited on 07.08.2021 and thoroughly checked the cell phone of complainant and found that the said cell phone is not working properly. The said technician formatted/reset the software of the said cell phone and handed over the same to complainant, in the presence of the technician, the complainant switched on the cell phone and found that the problems are still persists in the cell phone. Once again the said technician checked the cell phone and found that the same problem is still present. At the end the said technician submitted his report with the OP No.1. After few minutes complainant received a message from the OP No.1 regarding cancellation of replacement request of cell phone. On this, the complainant immediately called the customer care of the OP No.1 and requested to send a copy of report sent by technician who checked the cell phone of the complainant, but the OP No.1 flatly refused the complainant, reason may be best known to them. After rejection of replacement request of the complainant by the OP No.1, the complainant visited the office of OP No.3 and again requested to replace his mobile phone but the officials of OP No.3 flatly refused to help him out. The complainant also served a legal notice upon all the OPs on 08.08.2021 through counsel on the email addresses of the OPs, but they all didn't pay any heed on the genuine request of the complainant. Even OP No.2 promised to resolve the matter within short period, but no solution was provided by them and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the purchase price of the mobile i.e. Rs.15,999/- alongwith interest @ 12% per annum from the date of purchase and further OPs be directed to pay Rs.30,000/- as compensation for causing mental tension and harassment to the complainant and Rs.15,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed its written reply, whereby contested the complaint by taking preliminary objections that the complainant has suppressed true and material facts from this Commission and trying to mislead this Commission. Hence, the present complaint is not maintainable and liable to be dismissed against the OP No.1. It is further averred that the fact needs to be recorded here that the complainant might have mistakenly considered the answering Opposite Party No. 1 as the seller of the product and this is complete negligence on the part of the complainant. The Opposite Party No. 1 is not the seller of any product (including the product under present complaint) but mere an online intermediary providing a common platform to the buyer & independent third party seller. This is also evident from the tax invoice attached by the Complainant himself that the seller of the product is Utkrisht Trade Solutions Pvt. Ltd. It is further averred that the whole grievance of the complainant pertains to receiving an alleged defective mobile phone thereinafter referred as the product). The complainant has presented the complaint with false and twisted facts. The Complainant is cooking all crooked stories based on whims and fancies. It is submitted that when the Complainant raised his grievance with the OP No.1, the OP No.1 duly escalated the same to the seller of the product and tried to resolve the grievances of the complainant by giving proper resolution of the same as much as OP No.1 can do in its intermediary capacity. Thereafter, the seller arranged a technician visit at the Complainant's address wherein the expert technician examined product and intimated that the alleged issue in said product has been duly resolved and the product is defect free. Thereafter, the Complainant again raised his grievance regarding the same issue. For the second time, the seller of the product was again ready to provide technician visit to the Complainant so that the alleged issues can be ascertained and rectified however, the complainant himself denied for technician visit and was adamant on directly returning the product. However, this time the seller of the product rejected the unreasonable demand of the Complainant and duly informed the Complainant that since the product is defect free thus, as per the seller's policy the said product cannot be returned based on unreasonable demands of the Complainant. Moreover, the Complainant himself is denying the resolution provided by the seller. It is pertinent to mention here that even if, at the stretch of imagination, the averments laid by the complainant are believed to be true, still the OP No.1 is not liable to provide any relief to the complainant as the dispute, if any is only between the Complainant and the independent third party seller. The OP No.1 has no role to play in the entire transaction. Thus the present complaint against the OP No.1 is liable to be dismissed. It is further averred that OP No.1 reiterates that the Complainant has purchased the product from an independent third party seller on the Flipkart Platform. The OP No. 1 is not involved in the entire transaction executed between the seller and the Complainant. The OP No.1 has not charged complainant any amount of consideration for using his online platform. There is no privity of contract between the Complainant and the OP No.1 and hence, OP No.1 does not render any liability arising out of such contract. It is also pertinent to note that the OP No.1 is not owned/controlled/associated with the seller of any product that is registered on its OP No. 1 being merely an online intermediary online platform. The OP No.1 being merely an online intermediary and not the seller of the product sold to the complainant, in no way, assumes liability for the alleged defective delivery of the ordered product. The OP No.1, Flipkart Internet Private Limited is a company engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (Mob App) (hereinafter collectively referred to as the "Flipkart Platform). The OP is an online marketplace e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection (E-commerce) Rules, 2020. The said ‘Flipkart Platform’ is electronic marketplace model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. Consumer Protection (E-commerce) Rules, 2020 has clearly distinguished marketplace E-commerce platform from the seller of the goods. Thus, for any act of the seller, the marketplace e-commerce platform or its operating entity cannot be held liable. It is further averred that the business of the OP No.1 falls within the definition of an ‘intermediary’ under Section 2(1) (w) of the Information Technology Act, 2000. It is further averred that no relief sought against the answering OP No.1 can be granted in the given facts and circumstances. The product purchased by the complainant has not been sold by answering OP No.1 but by an independent third party seller. On merits, it is admitted that the product in question was purchased through the answering OP No.1 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OPs No.2 & 3 filed its separate joint written reply, whereby contested the complaint by taking preliminary objections that the instant consumer complaint is not only completely devoid of merit, but amounts to blatant and flagrant abuse of the procedure established under the consumer laws of the country. The complaint, without doubt, is a vexatious and petulant litigation, filed with mala-fide and motivated intention aimed at harassing, harming and humiliating the answering Opposite Party. The complaint is ex-face false, erroneous, flimsy, misconceived and built on self-serving assumptions and interpretations. The complaints like the present complaint deserve to be treated with judicial disdain and unqualified opprobrium since they are meant only to waste the precious time of the Commission. It is further averred that the complainant has falsely/mistakenly implead the answering Opposite Party in the instant case, as the answering Opposite Party is neither necessary nor proper party. The answering Opposite Party has no role to play in this whole incident. Hence, there has been mis-joinder of parties. It is further averred that the complainant has not approached this Commission with clean hands, which per ipsum disentitles them to invoke the jurisdiction of this Commission for the desired relief. The complainant has stated the false facts and tried to hide the real facts of the instant case in order to support his false claims. This case is completely related to Flipkart OP No.1. The complainant wants his replacement/amount to be refunded from Flipkart. The complainant wrongly implicated the answering OP as the product he had ordered is of Realme. The complainant ordered the impugned product from Flipkart/OP No.1. It is further averred that the complainant has falsely/mistakenly implead the answering OP in the instant case, as the answering OP is neither necessary nor proper party. The answering OP has no role to play in this whole incident. Hence, there has been misjoinder of parties. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder not filed by the complainant.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the parties very minutely.
7. The complainant has purchased the Realme 8 phone through OP No.1, vide Ex.C-1, which is the Invoice for Rs.15,999/-. The complainant has proved on record the condition for replacement of the product issued by the OP No.1, which is Ex.C-2. As per Ex.C-2, the customer can raise a replacement request on the website/mobile site within seven days of receiving the product, if he has received a damaged or defective product or if it is not as described. As per Ex.C-1, the complainant purchased the mobile on 24.07.2021. As per the contention of the complainant, after 2-3 days, the complainant found that the cell phone is not working properly and the same is lagging and processing very slow. He also found that the videos were not playing seamlessly, even the calculator application could not be opened due to error of software. He reported the matter to the OP No.3 i.e. the local service centre of the mobile company i.e. OP No.2 and requested to replace the cell phone, but they refused. He sent email to the OP No.1 requesting to replace the mobile. As per Ex.C-4, which is the screen shot of the message, the return request of the complainant was cancelled. This message of cancellation was sent without assigning any reasons. Thereafter, the complainant sent legal notice, which is Ex.C-5. In reply to the legal notice, the OP No.2 asked the complainant to wait for some time as they have arranged a call back for him. Their team will contact him for the same and assist him with the best possible manner, but thereafter none contacted the complainant and the complainant’s request was not considered and his grievances was never redressed. The complainant has proved on record that he made efforts for redressal of his grievance, but despite all the efforts, emails and correspondence, he neither got the refund nor the replacement of the mobile.
8. As per Ex.OP1/1 and Ex.OP1/2, the OP No.1 is an electronic market place and act as intermediary to facilitate the sale transaction between independent third party seller and independent customers. The complainant purchased the mobile phone through Flipkart i.e. OP No.1 and the condition for replacement was also issued by OP No.1. As per Ex.C-3, it is proved that Flipkart i.e. OP No.1 received the request for replacement of the product. But the fact remains that the complainant has made the payment to the Flipkart for onward giving to the seller or manufacturer as the OP was intermediary platform provided for both seller and buyer. Flipkart cannot escape or run away from its liability on the ground that there was no privity of contract between the buyer and the seller. As per record and the proved documents from Ex.C-1 to Ex.C-6, it is proved that the entire transaction and correspondence was done through the flipkart online portal i.e. www.flipkart.com. It is proved that the complainant purchased the product through flipkart website, therefore there exist the relationship of a consumer and the service provider between the complainant and the OPs. The OP No.1 to 3 opted to provide the services of selling Mobile by giving online platform through their website, therefore the complainant becomes consumer. As per Ex.C-1, the Mobile was sold by OP No.2 and it was through Flipkart i.e. OP No.1.
9. The OP has sought the exemption under Section 79 of the Information Technology Act. Under Consumer Protection Act, 2019 there are rules regarding the liabilities of marketplace e-commerce entities. These rules have been notified on 23 July 2020 by the Department of Consumer Affairs. It has been mentioned that as per rule 5(1) of the liabilities of marketplace e-commerce entities, a marketplace e-commerce entity which seeks to avail the exemption from the liability under sub-section (1) of Section 79 of the Information Technology Act, 2000 shall comply with sub-sections (2) and (3) of that section, including the provisions of the Information Technology (Intermediary Guidelines) Rules, 2011. It has specifically been mentioned that a marketplace e-commerce entity shall require sellers, through an undertaking, to ensure that descriptions, images and other content pertaining to goods or services on their platform is accurate and corresponds directly with the appearance, nature, quality, purpose and other general features of such good or service. Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform:
(a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage: Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution.
10. There is no document on the record to show that the OP has complied with these rules and has ever assisted the complainant in getting the issue resolved through their seller or manufacturer. As per the record the complainant has booked the order through OP No.1, which was accepted by the OP No.1 and the payment was received by the OP No.1. The product was also delivered by the OP No.1. All the correspondence was carried on between the OPs and the complainant. It is proved that the defect occurred within warranty period. As per Ex.C1 the warranty of the product is one year and six months for accessories. Despite the request made for number of times by the complainant, the issue has not been resolved by the OPs, thus, it amounts to deficiency in service and unfair trade practice on the part of the OPs and therefore, the complainant is entitled for the relief as claimed.
11. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs No.2 & 3 are directed to refund the price of the mobile i.e. Rs.15,999/- alongwith interest @ 6% per annum from the date of purchase till its realization. The complainant is directed to return the mobile to the OPs No.2 & 3 at the time of receiving the amount of mobile. Further, OP No.1 is directed to pay a compensation of Rs.5000/- to the complainant for causing mental tension and harassment to the complainant and Rs.3000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
01.12.2022 Member Member President
