Complainant Anil Kumar through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to replace the power bank or in the alternative refund the original cost of the equipment of Rs.1599/- alongwith 18% per annum interest thereon from 16.2.2017 till the date of payment to him. Opposite parties be further directed to pay Rs.30,000/- as compensation alongwith litigation expenses, in the interest of justice.

2.      The case of the complainant in brief is that he purchased power bank from the opposite party vide bill No.FOP7Y00217-01140955 dated 16.2.2017 for a sum of Rs.1599/-. After two months the same became defective and is not working/functioning properly. He made report regarding defective of power bank on Ist May 2017 but the opposite party no.1 who is the authorized company of opposite party no.2 has not given proper reply rather the opposite party no.1 misguided and want to avoid the matter with one pretext or the other and nor the opposite party ho.1 is hearing him properly. Hence this complaint.

3.       Upon notice, the opposite party no.2 appeared through its counsel and filed the written reply by taking the preliminary objections that the complaint is not maintainable and several other objections have been raised. On merits, it was submitted that   these sellers are separate entity being controlled and managed by different persons/stakeholders. The opposite party does not directly or indirectly sells 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, on terms decided by the respective sellers only. It is further submitted that the complainant has not provided the clear copy of the invoice.  In the absence of the clear copy of the invoice opposite party is unable to find the transaction taken place between the complainant and the seller. The opposite party reserve its right to amend the reply as and the complainant will provide the legible copy of the invoice. In the present position even it cannot be ascertain that the product in question was ordered through opposite parties portal or not. The complainant may be put to strict proof of the same.  All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

4.      Notice issued to the opposite party no.2 has not been received back. Case called several times but none had come present on its behalf. Therefore, it was proceeded against exparte vide order dated 6.9.2017.       

5.     Sh.Natish Kumar has tendered into evidence affidavit of complainant Ex.C-1 and closed the evidence. 

6.     Counsel for the opposite party no.2 tendered into evidence affidavit of Mr.Satyajeet Bhattacharya Ex.OP-2/1 and closed the evidence.

7.   We have carefully examined all the documents/evidence as available on the complaint records (as duly put forth by the complainant) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional absence/opted-out ex-parte proceedings by the titled opposite party1 vendor, despite the proven summons-service of course, in the very back-drop of arguments as put forth by the learned counsel for the complainant and the opposite party no.2 intermediary (electronic platform). By the time, it has been more than a century old trite law that the litigants preferring ‘ex-parte proceedings’ have no legs to stand and step into the witness box to prosecute their defense   

8.       We find that the complainant had on record purchased (affidavit Ex.C1) one Power Bank WD48971 Syska Make from the OP1 vendor vide Invoice # FOP7Y 00217-01140955 dated 16.02.2017 for Rs.1,599/- through the OP2 intermediary at its electronic platform. However, the Power Bank device fell defective and its non-functional status was duly reported to the OP1 vendor (an associate of the OP2) who allegedly avoided assistance and instead misguided the complainant hence the dispute prompting the present complaint.  

9.      We find that the OP2 intermediary has stated (in detail) vide its Ten Page written-statement with its contents duly deposed by the accompanying affidavit (Ex.OP2/1) highlighting its excellent functioning but denying all responsibility at the end and evading its liability to refund/replacement of the defective product. We are of the considered opinion that after sales-service including refund and replacement of the defective product(s) need to be the joint and several liability of the vendor and the intermediary, both.

10.      Lastly, we find that the complainant’s consumer rights have indeed been determined since the titled opposite party vendor has intentionally opted out for the ex-parte proceedings and thus going by the old accepted norms it can be judicially presumed that the titled opposite party 1 never had any defense to plead in its defense. No doubt, we shall be at a judicious discretionary liberty to draw an adverse ‘judicial inference’ by virtue of a plethora of superior courts judgments that the ex-parte opposite parties had no defense to prosecute and thus they instead preferred to go ‘ex-parte’. The above legal proposition holds true since more than a century vide the old legal history of Indian law and its collateral jurisprudence. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/or to cast undue excessive ‘distresses’ to the delinquent parties.

11.        In the light of the all above, we find the hue of actionable merit (under the Act) in the present complaint and thus ORDER the titled opposite parties (vendor & intermediary, both) to replace the defective device with a new/ fresh piece or refund the full cost of the damaged device to the present complainant besides to pay him Rs 3,000/- as cost and compensation within 30 days of the receipt of these orders otherwise both the opposite parties shall be jointly and severally liable to pay the awarded amount with interest @ 9% PA from the date of order till actual payment.   

12.      Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                                                                                      (Naveen Puri)

                                                                                               President                                                                                    

ANNOUNCED:                                                            (Jagdeep Kaur)

December 29, 2017                                                               Member

*MK*