Haryana

StateCommission

A/1018/2015

MANAGER (SALES) FLIPKART - Complainant(s)

Versus

NARENDER KAAJLA - Opp.Party(s)

ATHIKHO ISAAC

08 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

 

First Appeal No.1018 of 2015

Date of the Institution:30.11.2015

Date of Decision:08.03.2017

 

Manager (Sales) Flipkart, company duly incorporated under Companies Act, 1956, Having its registered office at Vaishnavi Summit No.6/B, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala industrial Layout, Banglore-560034.                                     

.….Appellant

Versus

1.      Narender Kaajla, R/o H.No.101, Block E-4, GHS-79 (A WHO Society), Sector-20, Panchkula.

2.      Sunder Electronics, Gala No.135, 1^st Floor, Pragati Industrial Estate, N.M. Joshi Marg, Lower Parel (E), Mumbai-400011.

3.      Manager Trackon Courier Services, DSS-312, (Ground Floor), Sector-20, Panchkula, Haryana.

Respondents.

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

 

Present:-    Mr.Vivek Sethi, Advocate for the appellant.

Mr.Narender Kaajla, Advocate, respondent No.1 in person.

 

O R D E R

 

URVASHI AGNIHOTRI, MEMBER:

 

1.      Manager (Sales) Flipkart - OP is in appeal against the Order dated 29.10.2015, passed by the learned District Consumer Disputes Redressal Forum, Panchkula (for short ‘District Forum’), whereby the complaint of Narender Kaajla has been allowed, by directing the OP as under:-

1. “To refund the amount received from the complainant qua the product in question i.e. Rs.3000/- alongwith interest @ 9% p.a. from the date of depositing of amount till realization.
2. To pay an amount of Rs.10,000/- as compensation for mental agony and harassment etc.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy, thereafter, the Ops shall pay the amount at serial No.1 above with the interest @ 12 % per annum form the date of depositing of the amount by the complainant till realization besides complying with the direction at serial No.2 above”.

2. Briefly stated, the complainant placed an order online shopping in the name of Prikshit Kaajla minor son, for purchasing Nintendo DS (a playing device) on 08.12.2014 but the seller of OP No.1 sent only a chip (new super Mario Bross DS games) vide order ID No.OD301460567362312100 (Annexure C-1) dated 05.12.2014, which was received on 08.12.2014. After receiving the consignment, the complainant sent a mail regarding return of the product and to refund the amount of Rs.3000/- only, followed by other mail. But when no reply was received, the complainant sent back the consignment at their address through Trackon Courier Service i.e. OP No.3 vide receipt No.426801897 dated 17.12.2014 (Annexure C-2). The complainant also contacted the Op No.1 on toll-free number but their representative replied that they were looking into the matter and would refund the money as soon as possible. But the OPs refused to return the money. This act of the opposite parties amounted to deficiency in service on their part, hence, aggrieved by the same, the complainant approached the District Forum for redressal of his grievance.
3. Pursuant to notice, the opposite party No.1 appeared and filed the written reply pleading that the OP No.1 was a company duly registered under the provisions of the Companies Act and engaged in the business of trade of various kinds of goods. Its position and status were only of intermediary within the definition of an “intermediary” u/s 2 (1)(w) of the Information Technology Act, 2000 which is as under:-

“intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;” Therefore, they were protected by the provisions of Section 79 of the Information Technology Act, 2000.

It was further pleaded that the complainant was not a consumer of OP No.1 under the provisions of the Consumer Protection Act, as there was no privity of contract between the complainant and the OP No.1. Moreover, the users of the website/buyer of goods are bound by the terms of use enumerated on the website. Therefore, when the complainant placed the order for Nintendo DS (a playing device) from the seller “Sunder Electronics” i.e. Op No.2 on 05.12.2014, the OP No.1 was not liable to refund the price of the product in question. In fact, the OP No.1 did not sell any product to the complainant and there is no deficiency in service on the part of Op No.1.  

4. None appeared on behalf of OP No.2 nor filed any written statement even after availing opportunities and the OP No.2 was proceeded against ex-parte vide order dated 29.07.2015.
5. Notice was issued to the OP No.3 through speed post but the Op No.3 was proceeded against ex-parte vide order dated 03.06.2015.
6. However, the learned District Forum rejected the pleas raised by the OP-1 and accepted the complaint vide order dated 10.03.2015 by granting the aforesaid reliefs to the complainant.  

7. Against the impugned Order, the OP/appellants have filed appeal before us reiterating the same pleas, as raised by them before the District Forum. We have heard the learned counsel for the parties and have also gone through the record. 
8. From the perusal of the record it is evident that the order was placed online by the complainant–respondent for the supply of Nintendo DS (a playing device) by paying the purchase price of Rs.3000/-. Obviously, by this action of the complainant he was covered within the definition of the Consumer Protection Act. Again the product sent by respondent No.1 through Courier was not the same for which the order was placed was a totally different one. Therefore, the defence of respondent of OP No.1 that he was only an intermediary is not tenable in law, as there is a complete deficiency in service. Otherwise also, supplying a different product, after the receipt of price of another product clearly amounts to unfair trade practice for which the respondent was wholly liable to reimburse the complainant by refund of the purchase price. Consequently, we fully agree with the detailed and well reasoned order passed by the learned District Forum and uphold the relief granted to the complainant.  
9. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

March 08th, 2017

Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

R.K