PER
Sh. Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Section 12 of the Consumer Protection Act against the opposite parties on the allegations that lured by ads through various media sources the complainant was made to purchase one. LED TV Philips 40 PFL 4958, 40 inches was purchased from flipkart.com for Rs. 27400.00/- vide order date 6.10.2014. The decision to buy this particular TV (LED) has solely based on the reputation of Philips Company with which claims to supply products best in quality, performance, potency etc. and as well as its customer care services, as such, the complainant was tempted to buy this TV at reasonable price trusting it to be a quality product. The complainant never thought that this company make misleading promise to ditch the consumer by selling the substandard quality product and poor response in providing good sale & service because inspite of legal notice, the OPs never thought of approaching/responding the consumer to make any effort in redressal of the grievance of the complainant, leaving the consumer high & dry without caring the reputation of their own. The trust of the complainant is completely shattered as the TV so purchased has not lasted for 3½ years even while in general the LED TVS of a normal quality provide good service for 8-10 years specifically the TV set is sparingly used at home where 2 senior citizens reside for 6-8 months a year. The said TV was delivered to the complainant after week's time through GATI carriers i.e. on 11th Oct., 2014. The said TV was installed by company's engineers of O.Ps. and TV started working since then. During the month of August 2018, the picture of the TV started blurring and now the half of the Screen is turning black and half grey which shows that the TV had manufacturing defect which means any fault, imperfection or shortcoming in the performance, quality, quantity, potency, purity or standard which is required to be maintained by or under any law. On internet, the phone Number of Philips Customer care was found to be 97816-29990 which was contacted by the complainant, who sent service engineer on 17.9.2018. The OP3 was also contacted on its toll free No. 18002089898 with a reference No. IN181141221378596408 but to no avail as its executive showed inability to help in the matter. The service engineer (contact no. 9779383353) on visit, informed that the display console has to be replaced or repaired and the charges for replacement would be Rs. 17,000/- to Rs. 19,000/- and for repair would be Rs. 6,000/- to 7,000/- and also charged Rs. 350/-as his visit fees. The complainant was flabbergasted to the LED TV of the most reputed brand Philips has gone faulty just after 3 years and not completed 4 years even. The O.Ps. 1 & 2 never sent any warranty card through Flipkart.com who acted as trader in this case is also found to be negligent being trader which is defined to be a person who sells or distributes any goods for sale and includes the manufacture thereof and where such goods are sold or distributed in package form, includes the packer thereof. The average warranty as available on internet is 5 years for most of the brands and average life of an LED TV is 4 to 5 years without any complication. The said TV has proved to be suffering from the manufacturing defect with the poor quality in its performance and potency, the manufacturing defects as mentioned in Consumer Protection Act 1986. The O.Ps have resorted to unfair trade practice as well as deficient in service while unfair trade practice is which is deceptive practice as per Sec 2(1) (r) of CPA and is defined therein. The cause of action arose at Amritsar in the month of August 2018, as such complaint is maintainable. The said LED TV requires replacement by a new one being inherently defective and prayed that OP.s be directed to replace the defective TV by a new one of the same make, brand and similar version and compensation of Rs. 50,000/- for mental pain harassment, and litigation charges of Rs. 20,000/- or in the alternative to refund the amount of Rs. 27,400/- paid to the O.Ps as a sale price with interest @ 12% P.A. Alongwith the complaint, the complainant has placed on record copy of invoice Ex. C-1, self attested copy of estimate Ex. C-2, self attested copy of Warranty Ex. C-3.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 3 appeared through counsel and filed written version by interalia pleadings that the Complainant has suppressed true and material facts from this Commission and cooked all crooked stories of sufferings. The present complaint is not maintainable and liable to be dismissed against this Opposite Party No. 3. The Opposite Party No. 3, Flipkart Internet Private Limited is a company duly registered under the provisions of the Companies Act, 1956, and having its registered office at Vaishnavi Summit, Ground Floor, 7th Main, 80 Feet Road 3rd Block, Koramangla Industrial Layout, Bangalore 560034, Karnataka. The Company is engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application. The Opposite Party No. 3 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. The said 'Flipkart Platform' 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 the Answering Opposite Party falls within the definition of an "intermediary' under Section 2(1)(w) of the Information Technology Act, 2000, which is reproduced hereunder
"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;"
The Opposite Party No. 3 is protected by the provisions of Section 79 of the Information Technology Act, 2000, which is reproduced hereunder:
#79....
1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
2 The provisions of sub-section (1) shall apply if-
a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
c) The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
The Opposite Party No. 3 only 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. These sellers are separate entity being controlled and managed by different persons/stakeholders. The Opposite Party No. 3 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 of the online marketplace services provided by the Opposite Party No. 3, on terms decided by the respective sellers only. Any kind of assurance, whether in terms of warranty on the products, Price, Discounts, Promotional Offers, after sale services or otherwise, are offered and provided by the manufacturer of the products sold on Flipkart Platform. The Opposite Party No. 3 neither offers nor provides any assurance and/or offers warranty to the end buyers of the product. The Complainant doesn't fall under the category of consumer of the Opposite Party No. 3 under the provisions of the Consumer Protections Act as the Opposite Party No. 3 is neither a trader nor a 'service provider' and there does not exists any privity of contract between the Complainant and the Opposite Party No. 3, and therefore, it is submitted that the Complainant has wrongly arrayed Opposite Party No. 3 in the present Complaint and hence the complaint is bad for mis-joinder of party. The role/involvement of Opposite Party No. 3 is as an intermediary only, that is, to provide online platform to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its Flipkart Platform. The services of Opposite Party No. 3 is similar to a shopping mall where various shops are rented out to different sellers who independently carryout sale proceedings with customer/visitors of the shopping mall and in case of any defect in the goods sold by such shop owners/sellers in the shopping mall, it is the shop owner/seller, who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. In the same way, the Opposite Party No. 3 is not involved in the entire transaction except for providing the online platform for the transaction(s) and the concerned contract(s) of sale and purchase is between the seller and the buyer (here complainant) only and hence this Opposite Party No. 3 shall not be held liable for any liability owing to such contract. No relief sought against the Opposite Party No. 3 can be granted in the given facts and circumstances. The product purchased by the Complainant has not been sold by Opposite Party No. 3 and Opposite Party No. 3 has no role in providing warranty of the product sold by an independent seller through the Flipkart Platform of the Opposite Party No. 3. The user(s) of the Flipkart Platform are bound by the Terms of use enumerated on the Flipkart Platform which clearly state that the contract of sale is a bipartite contract between the buyer and the seller only and the Answering Opposite Party is not a party to it. On the Flipkart Platform i.e. http://www.flipkart.com/s/terms. It is clearly mentioned that "All contractual/ commercial terms are offered by and agreed to between the buyer and the seller alone. The contractual/commercial terms include without limitation price, shipping cost, payment method, payment terms, date, period and mode of delivery, warranties related to products and services and after sale services related to products and services. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such contractual/commercial terms between the buyer and the seller. These Terms of use clearly shows that the Opposite Party No. 3 has not been involved in any unfair trade practices. The grievance of the complainant is with respect to the alleged defects in the goods and after sale services not provided by the Manufacturer and/ or the Service Centre engaged by the Manufacturer under Manufacturer's Warranty clause after almost four years of using the TV. The grievance of the Complainant if any, should have been only against the Manufacturer of the product, i.e. Opposite Party No. 1 or the Authorised Service Centre appointed by the Manufacturer i.e. Opposite Party No. 4, for not providing after sale services to its customers. The Answering Opposite Party No. 3 being mere an intermediary and not the seller/manufacturer/Authorised Service Centre of the product sold to the Complainant, in no way, can be made liable for defect in the goods, if found any. There is no cause of action against the Opposite Party No. 3. Opposite Party No. 3 is not owned/ controlled/ associated with Opposite Party No. 1or 2 in the present Complaint. There is no deficiency in services on the part of Opposite Party No. 3 and by no stretch of imagination, it can be said that the Opposite Party No. 3 is involved in any unfair trade practices for the reasons enumerated above. No dispute, as contemplated under the Consumer Protection Act, is caused to have arisen between the Complainant and the Opposite Party No. 3 and thus, the relief prayed for, is ought to be dismissed against the Opposite Party No. 3. The complainant himself seems to be educated person who can operate the electronic device for placing orders online and many more things, It is necessary to mention here that the product in issue was purchased by the complainant from a Seller registered on the portal of the Answering Opposite Party ABOUT FOUR YEARS BACK with free will and without any pressure. Nobody had forced him to purchase the product in question. The opposite party No. 3 is only an intermediary and an online platform on which third party registered seller sells their product and in the present case also the product was purchased from the third party seller which for unknown reason, has not been impleaded as party. The opposite party No. 3 has denied the other contents of the complaint and prayed for dismissal of the same.
3 Notice of this complaint was sent to the opposite parties No. 1 and 2 but no one appeared on behalf of opposite parties No.1 and 2 and consequently, the opposite parties No. 1 and 2 were proceeded against exparte.
4 We have heard the Ld. counsel for the complaint and opposite parties No. 1 and 2 and have carefully gone through the record.
5 From the combined and harmonious readings of the documents and pleading on record is going to prove that the complainant has purchased one LED TV Philips 40 PFL 4958, 40 inches from the online platform i.e. flipkart.com for a sum of Rs. 27400/- vide order dated 6.10.2014. The complainant purchased the said product of Philips Company being the reputed one which claims to supply the products best in quality, performance, potency etc. As per the complainant, the said LED T.V has not lasted for 3½ years as it developed defects in the month of August 2018. The picture of TV started blurring and half of the screen was turning black and half gray which shows that TV has some manufacturing defect. The complainant contacted the Philips Customer Care who sent service engineer on 17.9.2018. The opposite party No. 3 was also contacted on toll free Number with the reference No. IN181141221378596408 but to no avail. The service engineer who visited, informed that display console has to be replaced or repaired and charges of replacement would be Rs. 17,000/- to Rs. 19,000/- and repair charges would be Rs. 6,000/- to Rs. 7,000/- and Rs. 350/- for his visiting fees. Normally the average warranty of the LEDs are 5 years without any complications. As there is manufacturing defect in the LED TV and the expenditure which could be incurred on the repair is more than its actual price.
6 The opposite party No. 3 has stated in their reply that they provided on line market place platform / technology / or other machisum / services to the sellers and buyers of products to facilitate the transaction, electronic commerce for various goods, by and between respective buyers and sellers and enable them to deal in various categories of goods. The said 'Flipkart Platform' 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 Opposite Party No. 3 only 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 and further submitted that the complainant has wrongly arrayed the opposite party No. 3 in the present complaint.
7 The complainant has placed on record his affidavit and declared and reiterated the stand as taken in the complaint and has also placed on record documents i.e. copy of invoice Ex. C-1, self attested copy of estimate Ex. C-2, self attested copy of Warranty Ex. C-3. The evidence led by the complainant on the file goes unchallenged and unrebutted as Opposite Parties No. 1 and 2 are proceeded against exparte in the present complaint and there is no reason on the file as to why the evidence produced by the complainant be not believed. Otherwise also, due notice was issued to the Opposite Parties No. 1 and 2 and opposite parties No. 1 and 2 did not appear in this Commission in order to contest the complaint which shows that the Opposite Parties No. 1 and 2 have nothing to say upon the allegations leveled against them by the complainant. As such, the complainant is entitled to the relief claimed in the complaint and it stands established on record that the complainant is approaching the opposite parties No. 1 and 2 several times but the opposite parties Nos. 1 and 2 did not care to resolve the matter, not only committed deficiency in service, but also indulged in an unfair trade practice.
8 From the above said discussion, it is very much clear that the complainant has purchased LED TV for a sum of Rs. 27400/- and after 3½ years it developed defects and in this regard, the complainant telephonically lodged complaint with the opposite parties No. 1 and 2 who sent their service engineer but he gave estimate for repair and for new panel more than the price of the LED which is clear from Ex. C-2. Normally, the LED TV carries the guarantee and warranty for more than 5 years but the said TV developed the manufacturing defects after 3½ years.
9 However, there is need to understand the difference between guarantee and Warrantee.
“ Guarantee is a lawful term and it is normally a promise or a commitment that validates the durability or quality of an item or service. A warranty is similar to insurance policy in which parts of the item or service purchased can be safeguarded through repair or substitution. A warrantee is a promise or guarantee given.”
So it is very much clear that warranty also promise to provide the safeguard through repair or substitution. In the present complaint, since the repair cost of the LED TV is more than the cost of the LED TV, it is appropriate in the interest of justice that said LED be replaced with new one of the same make and model instead of its repair. Moreover, the right to repair is remedy available to of the consumer but in this case, as the cost of repair is more than the actual price of the LED as such he has been deprived from the right of repair. Moreover, no guarantee or warrantee card has been placed on record.
10 In view of above discussion, the present complaint is allowed and the opposite parties No.1 and 2 2ares directed to replace the LED TV in question with new one of same make and model or to refund the price of the LED TV in question. The complainant will hand over the LED TV in question to the opposite parties No. 1 and 2. The complainant is also entitled to 7500/- as compensation on account of harassment and mental agony and 5000/- as litigation expenses from the opposite parties No. 1 and 2. Opposite Parties No. 1 and 2 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount from the date of complaint till its realisation. The present complaint against the opposite party No. 3 is dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission.
31.05.2023
