Haryana

Ambala

CC/316/2021

Varun Garg - Complainant(s)

Versus

New India Battery Industries - Opp.Party(s)

In Person

10 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     316 of 2021

                                                          Date of Institution           :     08.10.2021

                                                          Date of decision    :     10.10.2022.

 

Varun Garg S/O Ashok Kumar Garg, Resident of House No-64 Ajit Nagar, Near P.N.B Bank, Ambala Cantt, Tehsil- Ambala Cantt, District Ambala(Haryana)  

                                                                             ……. Complainant.

                                                Versus

1. NEW INDIA BATTERY INDUSTRIES, (Seller Regd Office)-New Anaj Mandi, KAITHAL-136027/NEW INDIA BATTERY INDUSTRIES, House No-364, Model Town, Jind Road, Kaithal (Haryana) (Through its Prop/ Manager)
2. Flipkart Internet Private Limited, Buildings Alyssa, Begonia an Clove Embassy Tech Village outer Ring Road, Devarabeesanahalli, Village, Bengalure 560103, Karnatak INDIA. (Through its M.D).
3. Microtek Corporate Office, H-57, Udyog Nagar, Rohtak Road Delhi-110041 (Through its M.D).

 ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Complainant in person.

                      OP No.1 already ex parte.

                     Shri Rajiv Sachdeva, Advocate, counsel for the OP No.2.

                     Shri Lakhwinder Singh, Advocate, counsel for the OP No.3.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(a) To refund the amount of Rs.6879/-, alongwith interest OR to deliver Upgrade Model MICROTEK XP 2500VA SINEWAVE INVERTER.

(b) To pay Rs.3,00,000/- as compensation for the mental agony and physical harassment caused to the complainant

(c)To pay Rs.31000/- as litigation expenses and counsel fee.

(d) OP No.2 shall verify all the orders fulfilled by OP No.1 and take corrective action in the matter.

(e) Grant any other relief to which this commission deems fit..

2.             Brief facts of the case are that on 11^th Nov 2020 at 02:28 PM the complainant placed an order No-OD 120194025885656000 with OP No.1 for purchase of a MICROTEK XP 2300 va JAMBO SINEWAVE INVERTER. On 15^th Nov 2020 the delivery person of OP No-2 Flipkart Agency came to deliver the package and handed over to the complainant. The complainant kept the said inverter in the office till April 2021 and in the month of April 2021 when the complainant tried to start his computer with the above said inverter, it failed to function. The complainant informed OP No.3 in the matter. Thereafter the representative of OP No-3 came to the office of complainant and checked the inverter. After checking, it was told to the complainant that the Inverter is OK, but the same cannot be synchronized with the computer of the complainant because it is MICROTEK XP 2300 VA SECUEWAVE and not MICROTEK XP 2300 VA SINEWAVE. After that, the complainant again reported the matter to OP No.3. The representative of OP No-3 again visited the office of complainant and told the same problem. In the month of Aug 2021, the representative of OP No-3 told the complainant that the OP No-1 has wrongly sent the Inverter - MICROTEK XP2300 SECUREWAVE instead of MICROTEK XP 2300VA JAMBO SINEWAVE and also told the complainant that the said inverter suffers from manufacturing defects. The matter was reported to OP No.1 but to no avail.  In August 2021, the complainant again made a complaint to OPs No.1 and 3, upon which they assured that they will deliver another Inverter-Upgraded Model XP 2500VA JUMBO SINEWAVE, but they failed to do so.  On 31^st Aug 2021 the complainant made complaint to OP No.2 through National Consumer help line, vide docket No 2934923, against OP No.1. OP No.2 told the complainant that the product can only be replaced and returned within seven days of delivery. In this way, the complainant was left in lurch. Hence, the present complaint.
3.           Upon notice, none appeared on behalf of the OP No.1, before this Commission, therefore, it was proceeded against ex-parte vide order dated 29.03.2022.
4.           Upon notice, the OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability not come with clean hands and concealed the true and material facts, cause of action, jurisdiction and bad for mis-joinder of necessary parties etc. On merits, it has been stated that  OP No.2 is engaged in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (Mob App) thereinafter collectively referred to as the "Flipkart Platform". It provides online marketplace platform/ technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc. OP No.2 is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers. The independent third-party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart Platform. Once a buyer accepts the offer of sale of the products made by the third-party seller on the Flipkart Platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart Platform. The business of OP No.2 falls within the definition of an intermediary' under Section 2(1)(w) of the Information Technology Act, 2000. OP No.2 acts as an intermediary through its web interface www.flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the users of the Flipkart Platform. Hence request for replacement/refund made by the complainant cannot be fulfilled by OP No.2. OP No.2, neither offers nor provides any assurance and/or offers warranty to the end buyers of the product. There exists no relationship between the complainant and OP No.2 as far as defective inverter is concerned.  Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with exemplary costs.
5.           Upon notice, OP No.3 appeared and filed its written version wherein it was stated that  OP No3 has been unnecessarily dragged in the present case as there is no any allegation against it in the entire complaint and all allegations are against the OPs No.1 and 2 only. Admittedly, the dispute is regarding supply of wrong product which was to be supplied by OP No.1 through OP No.2. Rest of the averments of the complainant were denied by the OP No.3 and prayed for dismissal of the present complaint with heavy costs.
6.           Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 and C-2 and closed the evidence. On the other hand, learned counsel for the OP No.2 tendered affidavit of Ms Sheetal Tiwari, Authorized Signatory of OP No.2-Flipkart Internet Private Limited as Annexure OP-2/1 and closed the evidence on behalf of OP No.2. Learned counsel for the OP No.3 tendered affidavit of Lakhwinder Singh, Representative of OP No.3-Microtek International Pvt. Ltd. as Annexure OP-3/A and closed the evidence on behalf of OP No.3.
7.           We have heard the complainant and learned counsel for OPs No.2 and 3 and carefully gone through the case file.
8.           Complainant has submitted that by selling the inverter with wrong specifications/model by the OPs and neither by replacing the same with a new one nor refunding the price thereof, the OPs are deficient in providing service and adopted unfair trade practice. 
9.           On the contrary, the learned counsel for the OP No.2 submitted that since it is only the electronic platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers and the inverter in question was supplied to the complainant on behalf of OP No.1-the seller/dealer, and at the same time no allegations have been levelled by  complainant against OP No.2 and the complaint has been filed with regard to the  inverter supplied by OP No.1 with wrong specification/model, as such, the complaint against OP No.2 is liable to be dismissed.
10.           Learned counsel for OP No.3 submitted that since the dispute is regarding supply of wrong product which was to be supplied by OP No.1 through OP No.2 and the complaint is not in respect of defect in the product, as such, the complaint against OP No.3 is liable to be dismissed
11.           The moot question which falls for consideration is, as to whether, the complainant  is entitled to get refund of the price of the inverter in question or not. It may be stated here that perusal of tax invoice dated 11.11.2020, Annexure C-1 reveals that the complainant ordered for an inverter make-Microtek XP SW 2300 VA Jumbo Pure Sine Wave Inverter m-2300 from OP No.1, on making payment of Rs.6879/-. The said inverter was to be supplied by OPNo.2-dilvery agent of OP No.1. It is also coming out from the record that when the complainant received inverter at his premises, it was found that instead of inverter 2300va sinewave, OP No.1 sent some other inverter i.e. 2300va securewave, which  could not be synchronized with the computer of the complainant, as a result whereof, the complainant raised complaint on 07.09.2021, Annexure C-2 with OP No.2. It is further coming out from the record that OP No.2 informed the complainant that it has taken up the matter with the company by NCH and that in case he is still not satisfied, he is free to file consumer complaint.
12.           It is significant to mention here that perusal of contents of the complaint reveals that the primary allegations have been levelled by the complainant against supply of inverter with wrong specifications/model by OP No.1 which was supplied through OP No.2-delivery agent, as a result whereof, the same could not be synchronized with his computer.  In this view of the matter, we are of the considered view that only OP No.1 was the primary party to contest the allegations levelled by the complainant complaint regarding supply of inverter with wrong specifications/model.  However, notice of this complaint was sent to OP No.1 seeking its version of the case, yet, nobody appeared on its behalf, despite service, therefore, it was proceeded ex-parte. This act of the OP No.1 draws an adverse inference against it. The non-appearance of the OP No.1 shows that it has nothing to say in its defence against the allegations made by the complainant. Therefore, the assertions of the complainant to the effect that  instead of inverter 2300va sinewave, OP No.1 sent some other inverter i.e. 2300va securewave, which could not be synchronized with his computer, went unrebutted & uncontroverted. Under these circumstances, it is held that by neither replacing the  inverter in  question with the inverter of correct specifications/model as ordered by the complainant, OP No.1 is deficient  in providing service and adopted unfair trade practice, which has definitely caused a lot of mental agony and harassment to complainant.
13.           At the same time it is also held that since OP No.2 was only the electronic platform which acted as an intermediary to facilitate sale transaction of the inverter from OP No.1 to the complainant and also no specific allegations have been levelled by the complainant against OP No.2 regarding any deficiency in providing service, therefore, complaint against OP No.2 is dismissed with no order as to cost.
14.           Similarly, since the complainant has not levelled any allegations with regard to any manufacturing defect in the said inverter, whereas, this complaint has been filed with regard to supply of inverter with wrong specifications/model,  as such, OP No.3 being manufacturer of the said inverter cannot be held responsible for any deficiency in rendering service or adoption of unfair trade practice in the matter. Therefore, this complaint filed against OP No.3 is liable to be dismissed, in view of ratio of law laid down by the Hon’ble Supreme Court in the case Tata Motors Ltd. v. Antonio Paulo Vaz and Ors. 2021 SCC OnLine SC 125 wherein it was held that a vehicle manufacturer cannot be held liable for any deficiency in service by the dealer.
15.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OPs No.2 and 3 and allow the same against OP No.1 and direct it in the following manner:-
    1. To refund the amount of Rs.6,879/- to the complainant alongwith interest @4%% p.a. from 11.11.2020 i.e the date of purchase of the inverter in question, till realisation.
    2. To pay Rs.2,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.1,000/- as litigation costs.

                      This order be complied with, within a period of 45 days from the date of receipt of a certified copy of the same, failing which the awarded amounts besides litigation costs shall carry interest @5% p.a. from the date of default till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 10.10.2022.

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President