BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Complaint No.206/18.
Date of instt.:02.08.2018.
Date of Decision:11.06.2019.
Shaktiman Jain @ Vardhman Jain son of Sh.Suresh Kumar Jain, resident of House No.89, Gali Committee Wali, Near Surtgarhia Chowk, Sirsa.
……….Complainant.
Versus
- Tech Connect Retail Pvt. Limited Bilaspur Patuadi Road, near Bilaspur Chowk at NH-8, Opposite Tata Service Centre, Bilaspur.
- Tech Connect Retail Private Limited, 1213, Galleria Complex, DLF, Phase V, Gurgaon.
- Flipkart Internet Pvt. Ltd.Vaishnavi Summit 6/B, 7th Main, 80 ft. Road, 3rd Block Koramangala, Banglore, 5600034, India.
- E-Kart (Delivery Courier Company) House No.241/11 Building 4th Begu Road, Aggarsain Colony, Sirsa.
……..Opposite Parties
COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION ACT, 1986.
Before: SH. R.L.AHUJA ………………. PRESIDENT
SH. ISSAM SINGH SAGWAL ……MEMBER
MRS.SUKHDEEP KAUR……………MEMBER
Present: Shri Parvinder Gaba, Advocate for complainant.
Shri Ajay Saini, Advocate for OPs.
ORDER
Brief facts of the complaint are that the complainant had placed an order for purchase of Smart Watch Fossil Gen 3Q Exploits Grey through online to Op No.3 on 13.05.2018 vide order No. OD2123054725354082000 and payment of Rs.20495/-. The order was delivered through Op No.4 on 17.05.2018 alongwith bill dated 16.05.2018 amounting to Rs.20495/-. On opening the product, the complainant found product watch named AIMARNE EMPCRIO instead of Smart watch of Fossile Gen 3Q Explorist Grey. The complainant sent email to Op No.3 vide returned ID No.12201234000561591067 on the same day i.e. 17.05.2018 but no replacement was made. On 28.05.2018 the complainant, visited Op No.4 for taking delivery of the product and also contacted the Op No.3 where it was told to him that the issue would be solved on 31.05.2018 but he has not received the product till today. The complainant got served legal notice upon the Ops but to no avail. The act and conduct of the Ops clearly amounts to deficiency in service on their part. Hence, this complaint.
2. On notice Ops appeared. Ops No.1 & 2 in its joint reply have submitted that the Op No.1 is carrying on the business of sale of goods manufactured/produced by others and it is a registered seller on the website Flipkart.com and sells products of other through the website. It is not engaged in sale of any goods manufactured or produced it its own. The allegations of receiving Aimarne Empcrio Watch in place of Smart Watch Fossil Gen 3Q Exploits Grey is nothing but a bunch of false and fabricated stories made by the complainant. The Op No.1 had duly delivered the said smart watch Fossil Gen 3Q Exploits Grey to the complainant through its logistic partner i.e. Op No.4 in sealed packing as per specifications ordered by the complainant through OP No.3. The complainant was found operating 14 accounts which were subsequently blacklisted and had high numbers of returns of various products in order to demand illegal refund for his products on various falsified grounds. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
3. Op No.3 in its reply has submitted that the complainant has filed the present complaint by concealing the material facts from this Forum. The replying Op is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. It is further submitted that any kind of assurance whether in terms of warranty on the products, delivery, price, discounts, promotional offers, after sale services, return and refund, replacement or otherwise are offered ad provided by the manufacturer of the seller of the products sold on Flipkart platform. The complainant does not fall under the category of consumer of Op No.3 under the provisions of the CP Act. The contract of sale is a bipartite contract between the buyer and seller and replying Op is not a party to it. Other contents mentioned in the complaint have been denied and prayer for dismissal of the complaint has been made.
4. OP No.4 in its reply has submitted that the complainant has no specific grievance against the Op No.4. The replying Op acts as a logistic partner only to facilitate transactions between independent third party sellers and independent end customers. Once a buyer accepts the offer of sale of the products made by third party seller on the online platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered. At this stage, the replying Op steps in and provides the logistic service, by picking up the sealed pack product from seller and delivered it to the buyer in intact condition as it was picked from the seller. The grievance of the complainant is with respect to the delivery of alleged different product instead of the actual ordered by the seller i.e. Op Nos. 1 & 2 and complainant’s replacement request being cancelled by the other Ops in the present compliant. The replying Op does not indulge itself directly or indirectly in the entire transaction of the sale purchase right from listing of product on the website till acceptance of offer for sale by the seller. There is no deficiency in service and unfair trade practice on its party. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
5. Thereafter, the parties have led their respective evidence.
6. We have heard ld. counsel for the parties. Learned counsel for the complainant and learned counsel for the Ops have filed written arguments.
7. The complainant has filed written argument in which he has submitted that he had placed an order for purchase of Smart Watch Fossil Gen 3 Q Explorist Grey manufactured by Op No.1 & 2 through online to Op No.3 on 13.05.2018 of Rs.20495/- which was delivered to the complainant through OP No.4 on 17.05.2018 alongwith bill dated 16.05.2018 amounting to Rs.20495/- That it is undisputed fact that the complainant had purchased a smart watch Fossil Gen3 Q Explorist Grey from OP No.1 & 2 through OP No.3 of Rs.20495/-. That after receipt of item/product the complainant opened the same, and found watch named AIMRANE EMPERIO instead of Smart Watch Fossil Gen 3Q Explorist Grey as ordered by the complainant. That after receipt of item/product the complainant opened the same and found watch named AIMRANE EMPERIO instead of smart Watch Fossil Gen 3 Q Explorist Grey as ordered by the complainant. That thereafter on the same day i.e. 17.05.2018 complainant had made a return request to Op NO.3 and in response to return request Op No.3 vide return ID 1220123400056159106 sent the mail to complainant mentioning therein “we have received your return request, as part of the return process we will get in touch with you within 24 hours to follow in this request and we will pickup the item and deliver the replacement at the same time. After that the complainant had received another email from OP No.3 mentioning therein that “your return request has been accepted, we will pick-up the item and deliver the replacement at the same time”. As per return policy of Op No.3 “Buyer has to raise return request within 10 days from the date of payment realization. Once buyer has raised a return request by contacting us on our toll free number, seller while closing the return ticket can select one of the following:
I. Replace after shipment collection- seller has agreed to wait for the logistics team to collect the shipment from the buyer before replacing it;
II.Refund after shipment collection- seller has agree to wait for the logistics team to collect the shipment from the buyer before refunding;
III.Refund without shipment collection- seller has agreed to refund the buyer without expecting the original shipment back;
IV. Replace without shipment collection-seller has agreed to replace the order without expecting the original shipment back:
In the event the seller accepts the return request raised by the buyer. Buyer will have to return the product and then the refund shall be credited to the buyers account. In case the seller does not close the ticket in 3 days from the date of intimation to the seller about the refund, request, the return request shall be settled in favour of the buyer. The complainant has also reiterated the version as mentioned in the complaint.
8. The Ops No.1 & 2 have also filed their written arguments, in which it has been submitted that the OP No. 1 is retail private limited, is a company incorporated under the companies Act, 1956 and is an online reseller. The product was delivered to the complainant in a sealed box condition as it was received from the manufacturer. The product was delivered within the time specified in the order and hence there has not been any deficiency in service on the part of Op No.1. The role of Op No.1 is only limited to reselling the products of various manufacturers and its role comes to the end as soon as the product ordered is delivered at the address provide by customer. It has been further submitted that as per information received by the Op No.1 from Op No.3, the complainant was found operating 14 accounts which were subsequently blacklisted and had high number of returns of various products in order to demand illegal refund for his products on various falsified grounds and cause undue loss to OP No.1.
9. Op No.3 has also filed written arguments in which it has been submitted that the complainant has mistakenly considered Op nO.3 as seller of the product which is complete negligence on the part of complainant as Op No.3 is not a seller of the product but mere an online intermediary. The seller of the product in present complaint is an independent third party seller and not the OP No.3. There is no privity of contract between the complainant and OP No.3 and therefore, the complaint is not maintainable. The Op No.3 as an intermediary involvement of OP No.3 in the entire transaction is very limited in proving only the online platform, more so shipped the proper product in proper time and n proper day at proper place of billing address and nothing beyond this. The grievance of the complainant is with regard to delivery of the alleged different product instead of the actual ordered by the seller i.e. OP NO.1 & 2 an and complainant’s replacement request was cancelled.
10. Op No.4 also submitted written arguments in which it has been submitted that there is no privity of contract between the complainant and Op No.4 as it only acts as a logistic partner only to facilitate logistic transactions between independent third party sellers and independent end customers. The independent third party sellers use the online platform to list, advertise and offer to sell their products to users/buyers who visit the online platform. It has been further submitted that at this stage, the OP No.4 steps in and provides the logistic service, by picking up the sealed pack product from seller and delivered it to the buyer in intact condition as it was picked from the seller. The grievance of the complainant is with respect to the delivery of alleged different product instead of the actual ordered by the seller i.e. Op Nos. 1 & 2 and complainant’s replacement request being cancelled by the other Ops in the present compliant. The OP No.4 does not indulge itself directly or indirectly in the entire transaction of the sale purchase right from listing of product on the website till acceptance of offer for sale by the seller.
11. We have considered rival contentions of the parties and have gone through the written arguments as well as material available on the case file very carefully.
12. It is a proved fact on record that the complainant had placed an order for purchase of Smart Watch Fossil Gen 3 Q Explorist Grey manufactured by Op No.1 & 2 through online to Op No.3 on 13.05.2018 of Rs.20495/- which was delivered to the complainant through OP No.4 on 17.05.2018 alongwith bill dated 16.05.2018 amounting to Rs.20495/-. As per allegations of the complainant, he after receipt of the item/product opened the same and found product watch named AIMARNE EMPCRIO instead of Smart Watch Fossile Gen 3Q Explorist Grey. The perusal of the evidence of the complainant further reveals that on the same, he had sent different mails to the Ops qua the fact that wrong product has been received by him instead of Watch Fossile Gen 3Q Explorist Grey, for which he placed an order. In reply to that mails the Ops had been granting time and time on the ground that the order is under process and lastly vide Ex.C10 it was intimated that the return request has been accepted and the item would be picked up by 22.05.2019 and vide Ex.C11 it was intimated that order of the complainant has been shipped delivery by 22.05.2018 but despite that the complainant has not received the product despite his repeated requests which clearly amounts to deficiency in service and unfair trade practice on their part.
13. Keeping in view the above discussion, we allow the present complaint and direct the Ops to replace product which has been received by the complainant with Smart Watch Fossil Gen 3 Q Exploits Grey for which he has ordered and made payment of Rs.20495/- or in alternate to make refund of the said amount alongwith interest @ 7 % per annum from the date of payment till its realization within a period of 30 from the date of receipt of the copy of this order after receiving the product returned from the complainant. We further direct the Ops to further pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to record room.
Pronounced in open Forum. President,
Dated:11.06.2019. District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
