Hon’ble Mr. Haradhan Mukhopadhyay, President.
The brief fact of the case of the Complainant Kaushik Dev is that the Complainant purchased a Mixure Grinder namely Nutri Blender on 22.01.2022 from Flipkart.com an E-Commerce website and the manufacturing company of the product is Candes Technology Private Limited. The price of the product was Rs.1069/- and had warranty for one year. During the use of that product on 16.12.21, suddenly the grinder started stop working and after several attempts it did not function. So the machine broke down within one year of warranty period. Since the product was defective during warranty period so the Complainant contacted with the company and the personnel of the company assured the Complainant that within two days the technician will visit to check the problem and resolve it but nobody came to repair the said product. So the Complainant was compelled to file a written complaint on 18.01.2022 within the warranty period to the both O.P. No.1 Flipkart and company and O.P. No.2 Candes company but both the O.P. No.1 & 2 did not respond. The Complainant faced huge loss for the same. The Complainant therefore entitled to repair the product and compensation. The cause of action arose on 22.01.21 and on subsequent dates. The Complainant prayed for an award for Rs.1069/- being the price of the product, refund or to repair the product, Rs.50,000/- towards deficiency in service and Rs.10,000/- as litigation cost.
The O.P. No.2 did not contest the case accordingly the case is decided to be heard ex-parte against O.P. No.2.
The O.P. No.1 Flipkart Private Limited contested the case by filing written version wherein they denied each and every allegation of the Complainant. The defence case of O.P. No.1 Flipkart in brief is that the Complainant has wrongly impleded O.P. No.1 as party to this case since O.P. No.1 acts as an online intermediary under the present complaint. The product was purchased from the 3rd party seller and the seller of the product is Candes Technology Private Limited being O.P. No.2. It is the seller of the product that provide 10 days replacement policy in addition to the manufacturer warranty wherein buyers can claim replacement of the product if the product qualifies the quality check test. In the instant case the Complainant never approached the O.P. No.1. The product was used for almost one year. Once the 10 days replacement policy lapses away, the sole responsibility to provide the warranty goes to the manufacturer under its manufacturer warranty. The Complainant approached the manufacturer directly and its authorised service centre since the Complainant knew that it is the actual authority to raise grievance. The O.P. No.1 being an intermediary is in no way assumes liability for defect in the goods. So there is no cause of action against O.P. No.1. The O.P. No.1 is an online market place E-Commerce entity. As per C.P. Act and E-Commerce rules the business of the OP runs as intermediary under section 2(1)(w) of IT Act and it is protected under section 79 of the IT Act. Section 5(1) of C.P. rules provides for exemption and under section 79 of the Act. The sole responsibility of the sale lies upon either the seller or the manufacturer. The O.P. No.1 claimed that the Complainant failed to prove any cause of action against O.P. No.1. So the case is liable to be dismissed with cost.
The conflicting pleading of both the parties led this Commission to set the following points for determination.
Points for Determination
- Whether the case is maintainable in its present form and prayer?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the Complainant is entitled to get relief?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
The present case is filed against the manufacturer of the product as well as the seller of the said goods.
The O.P. No.2 being the manufacturer of the product in dispute decided not to contest the case and as such it was heard ex-parte against them. The O.P. No.1 Flipkart Private Limited contested the case with the principle defence that they as an intermediary has no liability in this case and as such they have been wrongly impleded as a party.
After perusing the pleadings of the parties and the evidence in the case record it transpires that it is the admitted fact that the Complainant purchased one Mixure cum Grinder.
The Complainant proved the tax invoice for purchase of the said product being Nutri Grinder Juicer Mixur Grinder from M/S Flipkart Private Limited of which the manufacturer is O.P. No.2 Candes Technology Private Limited for a sum of Rs.1069/-.
The manufacturer did not contest the case in any manner. The document discloses that O.P. No.1 is the seller of the product. It is fact the said product was sold under E-Commerce system from online sale. But the O.P. No.1 did not deny that the said technical fault in the product was caused within one year of warranty period. Without the appearance of O.P. No.1 who is the seller of the goods, the proper adjudication of the case would not have been possible. In that case the O.P. No.2 could have also taken the plea that they are not the seller of the product and M/S Flipkart was not a party so the case ought to have been considered as bad for defect of party.
The O.P. No.1 M/S Flipkart Private Limited is proper and necessary party to this case and accordingly O.P. No.1 has not been wrongly added as a party to this case.
Thus after considering all aspect of the case and in view of the observation in the foregoing paragraph the Commission is of the view that the case is maintainable in its present form and prayer.
Accordingly Point No.1 is decided in favour of the Complainant.
Point Nos. 2, 3 & 4.
All the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
The main allegation of this case raised by the Complainant is that within one year of purchase of the disputed Mixure cum Grinder from the O.P. No.1 & 2 the product became defective and despite several representation and complaint the O.Ps did not respond to the Complainant and as such the present case is filed.
The Complainant in order to substantiate the case proved the tax invoice for purchasing the product. Neither the O.P. No.1 nor O.P. No.2 denied that the product was not purchased by Complainant from the O.P. No.1 and the O.P. No.2 is the manufacturer of that product. Annexure-1 duly proved that the Complainant purchased the product from the O.Ps. Annexure-2 is the warranty card of the said product. The date of purchase of the said product is 22.01.2022. The O.P. No.2 did not deny the said fact. The O.P. No.1 claimed the said purchase as matters of record. So neither the O.P. No.1 nor O.P. No.2 did not deny the purchase of the disputed product on the specified date.
It stands also proved that the product became defective within the warranty period as the manufacturer of the product did not deny it. The seller of the product O.P. No.1 however made an evasive denial that they have want of knowledge about the defect.
Now the fact remains for consideration is only as to whether the grievance was lodged within one year or not and whether the O.Ps are liable or not.
As regards the liability of O.P. No.2 it stands well proved that the O.P. No.2 is liable for for the allegation made against them in as much as the O.P. No.2 neither made out any defence case nor did lead any evidence against the averment made an evidence led by the Complainant.
The case record further shows that the Complainant sent written complaint on 18.01.2023 to the O.P. No.1 stating inter alia that the said product became defective and despite assurance of giving technical visit, the O.P. No.1 did not send any technician and as such either the product should be replaced or the money should be refunded.
The OP could not prove any document to show that the OP responded to the grievance of the Complainant.
The plea taken by the OP in their written version is for the first time before the Commission. There was no reason as to why the grievance of the Complainant was unattended. The O.P. No.1 took another defence plea that as per section 79 of the IT Act, 2000 the intermediary does not have any liability. The provision shall apply only if the intermediary does not initiate the transmission, does not observe due diligence while discharging is duties or the function of the intermediary is limited to providing access to a communication. Section 79 is not applicable here since the O.P. No.1 did not act merely to initiate the transmission or access to a communication system. On the contrary O.P. No.1 acted as a supplier of the product in dispute.
It is also evident from the case record that the intermediary like the O.P. No.1 did not take due diligence while discharging his duties since they did not respond to the letter of grievance sent by the Complainant.
Ld. Defence Counsel for O.P. No.1 referred to a decision of Hon’ble Supreme Court in C.A. No.8701 of 1997 downloaded MANU/SC/0707/1999 wherein it was held that since the Complainant never approached their counter for the purpose of rendering their service in air passage from Amsterdam to New York so not entitled to get relief. The case law does not apply here since the Complainant in this case submitted grievance letter but the O.Ps did not respond to the same.
The O.P. No.1 also referred to another case law reported in MANU/SC/0799/2021 decided by the Hon’ble Apex Court in Civil Appeal No.5759 of 2009. In that case it was held that the onus of prove of deficiency in service is on the Complainant. Since report of sample was not produced so it was not proved that there was deficiency in service.
The case law is not applicable because of the fact that the defect was found in the product within one year of purchase and in the instant case neither of the O.Ps denied that the product became defective within one year of purchase or during the warranty period. Failure to either repair of the product or rendering proper service tantamounts to deficiency in service in the instant case.
Thus the said case law does not help the OP.
Having assessed in the entire case record and in view of the discussion made in the foregoing paragraph the Commission comes to the opinion that there is deficiency in service by the O.P. No.1 & 2 in regard to failure to repair the product within the warranty period. So the Complainant is entitled to get the relief prayed for and the liability of O.P. No.1 & 2 is jointly and severally in the instant case.
Accordingly, Point Nos.2,3 & 4 are decided against the O.Ps.
In the result the complaint case succeeds on contest against O.P. No.1 and ex-parte against O.P. No.2 with cost.
Hence, it is
Ordered
That the complaint case No.CC/17/2023 be and the same is allowed on contest against O.P. No.1 and ex-parte against O.P. No.2 with cost of Rs.10,000/-. The O.P. No.1 & 2 are jointly and severally liable.
The Complainant do get an award for a sum of Rs.1,069/- being the actual price of the defective product, Rs.20,000/- towards deficiency in service and Rs.10,000/- towards litigation cost.
The O.P. No.1 is directed to pay the total sum of Rs.31,069/- @ 50% each by O.P. NO.1 & 2 within 30 days from the date of passing the Final Order failing which the Complainant shall be entitled to get interest @ 8% per annum on the awarded money from the date of passing the order till the date of realization.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
