BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Complaint Case no.296 of 2017
Date of Institution: 14.11.2017
Date of Decision: 05.03.2018
Satwant Singh son of Sh. Tirlochan Singh, resident of Mamera Road, near Gurudawara Jorawar Singh, Namaste Chowk, Ellenabad, Tehsil Ellenabad, District Sirsa.
………Complainant.
Versus
1. Swadika Retail Private Limited, 172, Deerwood, Nirwana Country, Sector 50, Gurgaon District Gurgaon, Haryana 122001 through Proprietor/ Partner/ Owner of firm/ Incharge.
2. Flipkart Internet Private Limited, Vaishnavi Summit, No.6/B, 7th main, 80 feet road, third block, Kormangla Bangaluru Karnatka 560034 through Managing Director/ Owner or Incharge.
……… Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. R.L.AHUJA ………………. PRESIDENT
SH. MOHINDER PAUL RATHEE ……MEMBER.
Present: Complainant in person.
Sh. J.S. Sidhu, Advocate for opposite parties.
ORDER
In brief, the case of the complainant is that on 7.10.2017 complainant placed an online order for purchase of Redmi Note-Four 4GB mobile through opposite party no.2 and he was to pay the price of Rs.10,999/- of the mobile in cash on delivery. The above said mobile was received to the complainant and his friend through opposite party no.2 and he paid the amount of Rs.11,000/- in cash to the representative of op no.2 and received the courier of the said mobile and after taking courier, they went to a mobile shop for purchase of a sim. That on the said shop, when they opened the box, soap in place of mobile was found and they have authentic proof of CCTV video in this regard. The bill of said mobile is issued by opposite party no.1 which is bearing invoice No.FABA531800149828 dated 8.10.2017. It is further averred that the opening of box received by the courier in the presence of his friends was recorded in the videography of CCTV camera. That thereafter he contacted with opposite party no.2 and narrated the above story to them that he has received soaps in place of mobile, then they assured to give reply within 72 hours. When he again contacted with them, op no.2 got checked its record and found that the mobile has been sent by op no.2 and so they refused to take any action in the matter whereas both the ops were liable to hand over a mobile to him. That due to act and conduct of the ops, the complainant has suffered a lot of harassment as they have caused deficiency in services and unfair trade practice towards the complainant. As such the complainant is entitled to compensation and also entitled to refund of the amount of Rs.10,999/- alongwith interest from the ops alongwith litigation expenses. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed reply raising certain preliminary objections. It is submitted that op no.1 is a registered seller on the website “flipkart.com” and sells products of others through the website. The op no.1 is not engaged in the sale of any goods manufactured or produced by its own. It is further submitted that there has been no dispute contemplated under the Consumer Protection Act between the complainant and op no.1 as the op no.1 had supplied the product to the complainant in a sealed box as it was received from the manufacturer of the product. The op no.1 had not tampered with the manufacturer seal on the box and was not actually aware of the content of the parcel whether it was the mobile handset or alleged piece of stone. The role of op no.1 is only limited to reselling the products of various manufacturers and its role comes to end as soon as the product ordered is delivered at the address provided by the customer. It is further submitted that complainant alleges to have video recording of incident but the same has not been produced before the Forum. When the op no.1 received the complaint as forwarded by op no.2, an internal investigation was conducted and it was confirmed by the third party Logistic Service Provider that the parcel was delivered to the complainant in a sealed box in intact condition and it is the complainant himself who is at fault and trying to claim compensation on the false grounds. Even if the averments made by complainant are presumed to be true, it is the manufacturer who shall be held liable for the same as the parcel was packed by the manufacturer. Remaining contents of complaint are also denied.
3. Opposite party no.2 filed separate reply taking certain preliminary objections. It is submitted that ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent customers. The independent third party sellers use the Flipkart platform to list, advertise and offer to sell their products to the users/ buyer who visited 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. It is further submitted that the business of op no.2 falls within the definition of ‘intermediary’ under Section 2 (1)(w) of the Information Technology Act, 2000 and is also protected by the provisions of Section 79 of the I.T. Act, 2000. In the instant complaint, it is evident from the invoice copy attached by the complainant that the actual seller of the product is a third party seller and not the op no.2. It is further submitted that after receiving of complaint from the complainant about the alleged delivery of wrong product i.e. delivery of soap instead of mobile phone, an internal investigation was conducted with the seller of the product and it was confirmed by the seller that the correct product was delivered to the complainant and thus, the seller had rejected his request for replacement. The information/ confirmation was forwarded to the complainant. Remaining contents of complaint are also denied.
4. The complainant produced affidavit of Sh. Sunil Kumar, Proprietor of Zee Mobile Center Ex.C1, affidavit of complainant Ex.C2, copy of invoice Ex.C3 and copy of identity card of his college. On the other hand, learned counsel for ops made a statement that written statement filed on behalf of ops as mark A and annexure as mark B be read as evidence on behalf of ops.
5. We have heard complainant and learned counsel for opposite parties and have perused the case file carefully.
6. It is not in dispute that on 7.10.2017 complainant placed an online order for purchase of Redmi Note-four 4 GB through opposite party no.2 and said mobile was delivered to the complainant vide invoice dated 8.10.2017 after charging an amount of Rs.10,999/- from the complainant by op no.2 and the said invoice is issued by opposite party no.1. The complainant in order to prove his allegations has furnished affidavit of Sh. Sunil Kumar, Proprietor of Zee Mobile Center as Ex.C1 wherein he has categorically stated that on 27.10.2017 Satwant Singh son of Tirlochan Singh came to his shop with a sealed parcel for getting sim and stated that the parcel is containing mobile and it was in sealed pack condition. The above said parcel was received from Flipkart and when the parcel was opened, soap was found in place of mobile and this fact was recorded in the camera. The complainant has also furnished his affidavit as Ex.C2 wherein he has stated that all the contents of his complaint are true and correct. It is also pertinent to mention here that during the course of arguments, complainant produced a CD containing the footage recorded by CCTV camera which was got played and we saw that when the parcel was opened, same contained three pieces of soaps instead of mobile ordered by the complainant. The complainant has also placed on record photocopy of the photograph of the opened parcel containing three pieces of soaps. Thus, the complainant has duly proved his case. On the other hand, the ops have failed to controvert the evidence of complainant through reliable and cogent evidence in support of their pleadings. Thus, the opposite party no.1 who is seller of the product and issued the invoice in question in favour of complainant and op no.2 through whom the complainant placed the order for purchase of mobile have caused unfair trade practice towards the complainant.
7. In view of the above, we allow the present complaint and direct the opposite parties to refund the amount of Rs.10,999/- i.e. price of the mobile charged by them from the complainant alongwith interest @9% per annum from the date of payment i.e. 8.10.2017 till actual realization within a period of 30 days from the date of receipt of copy of this order. We also direct the ops to further pay a sum of Rs.3000/- as compensation to the complainant for harassment. Both the ops are jointly and severally liable to comply with this order, failing which the complainant will be at liberty to initiate proceedings under Sections 25/27 of the Consumer Protection Act, 1986 against the ops. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:5.3.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
