Haryana

Kaithal

195/20

Parshan - Complainant(s)

Versus

Savan Retailer Pvt Ltd - Opp.Party(s)

In Person

02 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.195/2020.

                                                     Date of institution: 08.07.2020.

                                                     Date of decision:02.05.2023.

Parshant son of Sh. Deepak, age 21 years, resident of Shri Pooj Mohalla, Main Bazar, Kaithal.

                                                                        …Complainant.

                        Versus

1. Savan Retailer Private Limited, SY No.696 Gundiapochampally Village, Medchal Mandal, Ranga Reddy, Distt. Secundrabad, Telangana-501401 (Dealer of mobile phones).
2. Ekart Logistics-FMPP0459963511, near Police Post Ambala Road, Kaithal.
3. Flipkart Internet Private Limited Buildings Alyssa, Begonia & Clove Embassy Tech. Village, Outer Ring Road Devarabeesanahalli Village, Bengaluru 560103, Karnatka, India.
4. XIAOMI TECHNOLOGY INDIA PRIVATE LIMITED, having its office at Building Orchiod Block E Embassy Tech. Village Marathahalli-Sarjapur Outer Riong Road, Devarabisanahalli Bangalore (Karnatka)-5760103.

….Respondents.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Complainant in person.   

                Sh. Vikram Tiwari, Advocate for the OPs.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Parshant-Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the respondents.

                In nutshell, the facts of present case are that the complainant made an order through online to purchase a mobile handset to OP No.3 on 18.03.2020 and made payment of Rs.7999/- in the account of OP No.1.  The OP No.3 told that the above-said mobile set will be delivered to the complainant on 21.03.2020 by the OP No.2 but the OPs did not deliver the above-said mobile set to the complainant.  So, it is a clear cut case of deficiency in service on the part of respondents and prayed for acceptance of complaint.     

2.            Upon notice, the respondents appeared before this Commission and contested the complaint by filing their written version separately.  OP No.1 filed the written version raising preliminary objections that the answering OP is carrying on the business of sale of goods manufactured/produced by others.  On merits, it is stated that the answering OP has delivered the product in a sealed box to the complainant (as it was received from the manufacturer/distributer) within the time specified in the order and hence there is no deficiency in service on the part of respondent.  The other objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

3.             OP No.2 filed the written version raising preliminary objections that the complainant does not fall under the category of consumer of the answering OP under the provisions of Consumer Protection Act, 1986 and therefore, it is submitted that the complainant has incorrectly arrayed answering OP in the present complaint; that there is no privity of contract between the complainant and answering OP as the role of answering OP is to provide delivery of products booked by different customer on e-commerce portals/online portals like that of www.flipkart.com.  There is no deficiency in service on the part of answering OP.  On merits, the objections rained in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             In the written version, OP No.3 stated that the answering respondent provides online marketplace platform/technology; that the said ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transaction 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 answering respondent does not directly or indirectly sell any products on flipkart platform.  In the instant complaint also, it can be evidenced that the actual seller of the product is a third party seller (who is not impleaded as a party).  There is no deficiency in service on the part of respondent.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

5.             OP No.4 filed the written version on the same line as followed by OPs No.1 to 3 and so, prayed for dismissal of complaint. 

6.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 & Annexure-C2 and thereafter, closed the evidence.

7.             On the other hand, the respondents tendered into evidence affidavits Ex.RW1/A & Ex.RW2/A alongwith document Annexure-R1 and thereafter, closed the evidence.

8.             We have heard both the parties and perused the record carefully.

9.             The complainant has argued that he made an order through online to purchase a mobile handset to OP No.3 on 18.03.2020 and made payment of Rs.7999/- in the account of OP No.1.  It is further argued that the OP No.3 told that the above-said mobile set will be delivered to the complainant on 21.03.2020 by the OP No.2 but the OPs did not deliver the above-said mobile set to the complainant.  So, it is a clear cut case of deficiency in service on the part of respondents.

10.            On the other hand, ld. counsel for the OPs has argued that OP No.1 has delivered the product in a sealed box to the complainant (as it was received from the manufacturer/distributer) within the time specified in the order.  It is further argued that OP No.3 provides online marketplace platform/technology.  It is further argued that the said ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transaction 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 respondent No.3 does not directly or indirectly sell any products on flipkart platform.  There is no deficiency in service on the part of Ops.

11.            At the outset, learned counsel for the OPs has taken plea that OP No.3 falls within the definition of an “intermediary” u/s 21 (1)(w) of the Information Technology Act, 2000 and also protected by the provisions of Section 79 of the Information Technology Act, 2000, as such, OP No.3 is exempted from liability for third party information, data or communication link made available or hosted by it at market place platform of OP No.3, therefore, OP No.3 is not liable for any discrepancy, if any, done by the seller i.e. the third party and display of price and subsequent supply of order is the sole responsibility of seller i.e. OP No.1 in the case in hand and prayed for dismissal the present complaint against it. But this Commission does not found this contention of OP No.3 plausible, in view of case law cited (supra) by learned counsel for the complainant titled Myntra Design Pvt. Ltd. Vs. Monika Thakur, wherein, it is held by the Hon’ble State Commission, U.T., Chandigarh that “The Opposite Party cannot escape from its liability stating that it is not the manufacturer of the product and only provides portal for sale, because the Opposite Party allows the companies to project their products for sale on their portal, so it is their legal obligation to keep a check for the rightful delivery of the products sold through their portal services”.  In the case titled Amazon Seller Services Private Limited Vs. Gopal Krishan, First Appeal No.27 of 2017, it is held that “In the said case, it was observed that it was bounden duty of the facilitator to ensure that goods purchased through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability. Further, the contention raised that as per terms and conditions of sale, no liability can be fastened upon the appellant (Amazon), was rejected by this Commission by observing as under:-

                “8……An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product. It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016”.

12.            So, in the light of above case law laid down by the Hon’ble State Commission, U.T. Chandigarh in the case referred to above, this Commission has no hitch to say that OP No.3, being an intermediary, is also liable as-well-as other OPs.

 

13.            We have perused all the record available on the file.  It is clear from the Annexure-C1 that the complainant made an order through online to purchase a mobile handset to OP No.3-Flipkart on 18.03.2020 and made payment of Rs.7999/- in the account of OP No.1.  The grievance of the complainant is that the OP No.3 has wrongly shown at their site that the mobile set has been delivered to the complainant on 21.03.2020 at 6.01 p.m. as per Annexure-C2, whereas in fact the OPs  have not delivered the mobile set to the complainant.  Hence, we are of the considered view that there is deficiency in service on the part of OPs. 

14.            Thus, as a sequel of aforesaid discussion, we allow the present complaint against all the OPs with the direction to OPs jointly and severally to refund the amount of Rs.7999/- to the complainant within 45 days.  The OPs are further directed to pay Rs.5,000/- as lump sum compensation on account of physical harassment and mental agony suffered by the complainant.  However, it is made clear that if the OPs are failed to make the payment of Rs.7999/- to the complainant within stipulated period, then they are also liable to pay the interest @ 7% p.a. from the date of this order till its realization.

15.            In default of compliance of this order, proceedings against respondents-OPs shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:02.05.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.