IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

                    Thursday the 19^th   day of  May, 2022

                               Filed on 26.07.2021

Present

1. Sri.S.Santhosh Kumar.BSc. LLB(President)

2. Smt. C.K.Lekhamma. BA,LLB(Member)         

                                                  In

                                       CC/No.142/2021

                                                     Between

Complainant:-                                                       Opposite parties:-

 Sri. Ajmal.N.A                                                                   1. The CEO, Flipkart Internet Pvt. Ltd

Ajmal Manzil                                                                           Vaishnavi Summit No. 6/B, 7^th main

Naduvilathara House                                                              80 feet road,  3^rd block, Koramangala

Chandiroor, Aroor-688534                                                     Banglore-560034

(Party in person)

                                                                                            2.  The Head of office,Flipkart Internet

                                                                                                 Pvt. Ltd,(Customer Care Office)

                                                                                                Building, Alyssa, Begonia and Clove,

                                                                                                 Embassy Tech Village Outer Ring road

                                                                                                Devarabeesanahalli Village, Bengaluru-03

                                                                                            3. The Head of  office Flipkart Internet

                                                                                                Pvt Ltd (Flipkart Customer Care)

                                                                                                Ozone Manay Tech Park, 56/18 and 55/09

                                                                                                7^th Floor, Garvebhavipalaya, Hosur Road

                                                                                                Banglore-560068

                                                                                            4. The Head of office, Divit Rao Enterprises

                                                                                                 Hno 305, Gali No.2 village Saidullajab

                                                                                                 New Dehli-110030

                                                                                            5.  The Manager, SAS courier Service

                                                                                                P.S Kavala, Kodamthuruth-688537

                                                                                            6. Sri. Jison

                                                                                                Delivery Personnel, SAS Courier Service

                                                                                               PS Kavala, Kodamthuruth-688537

                                                                                               (Adv. Abhilash. C. Soman for OP1,2,3)

O R D E R

SMT. C.K.LEKHAMMA(MEMBER)

1.      Brief facts of the complainant’s case are as follows:-

The complainant had ordered desktop, drive, motherboard and processor  on 24-5-2021, through FLIPKART. The invoice wise details of the four items dispatched are as follows:-

The items were brought to the house of the complainant by the delivery boy of SAS Courier service Sri. Jinson on 2/6/2021.The 1^st three items mentioned above were intact. But the 4^th packet, was also small so that it is impossible to house a computer processor and also feel that the packet was weightless.  Accordingly, complainant opened the packet in front of the delivery boy, who also  witnessed that the packet was empty. Both of us were shocked.

          As per the direction of the delivery boy the complainant  contacted Flipkart Customer care immediately and informed the matter. As directed by them, the complainant placed the refund request on 2/6/2021 itself.  No , the complainant received a mail stating that he will receive a resolution to the problem with 72 hours. Since, this was not received, the complainant contacted flipkart on the next day.  Now, Flipkart officials informed that they will call back by 13^th June, approve refund/ return and will refund the amount.  When the complainant contacted on 7^th to know the progress, the customer care informed to send another refund request since the request already filed has been rejected (message also received.  Accordingly, the complainant send another request.   The customer care officials now informed me to solve the problem of refund by the 19^th of June.  In the meanwhile, on June-9 the complainant  send a message explaining the matter to the Help centre of Flipkart also through the Flipkart App.  A message on June 22, informing that his refund request has been rejected.  Another message on  27/6/2021, informing that the request has been rejected, simply based on the report of the courier service that the item has been delivered.

          According to the complainant, he ordered the product to start a self-employment scheme with his friend, to earn a living, since due to the lockdown they  lost their work and hence in great financial difficulties. The complainant had ordered the product through Flipkart, considering the credibility of  the institution.   Various cadres of Flipkart officials working in various sections ad even promised refund, since they were convinced of the genuineness of his request. However, the request has been mercilessly rejected on the mere report that the parcel has been delivered.

          The complainant had send a letter dtd. 30/6/2021 to the opposite parties.  The opposite parties  2 &4 has accepted the letter. But, there has been no response. The letters to the other opposite parties have returned un-served.  The unfair/ unjust merciless decision, without considering the required genuine facts proves the deficiency of service and unfair trade practice from the part of the opposite party-Flipkart on a genuine request.  Moreover, since the complainant was unable to start the planned project, due to the incident, he was in great financial difficulty due to the absence of income to meet day to day expenses.  The funds for the purchase was  though SBI CREDIT CARD and the complainant was compelled to pay the monthly EMI which includes interest.

          The complainant had purchased the products from Flipkart, believing in their promises in the advertisements and website, among others, un-matched service.  But, the irresponsible behavior and  negligence on the part of the opposite parties, in not taking steps to find remedy to the problem has created a lot of difficulties to the complainant and put him in mental agony. The action on the part of the opposite parties is  deficiency of service and unfair trade practice.

          In the above circumstances that the complainant approaches this Commission for following reliefs.

1.To refund the amount of Rs.29,662/- being the amount paid, with 15% interest, after accepting back the products already supplied.

2. To direct opposite parties to pay an amount of Rs.3 lakhs as compensation for deficiency in service and cost of the proceedings.

2.      Brief facts of version filed by 1,2&3 are as follows:-

The 1^st opposite party merely operates an online platform and all the advertisements and the products are provided by the respective independent 3^rd party seller or manufacturer as the case maybe.  The 1^st opposite party has no role in providing any advertisement. Further the content related to order placing is a matter of record and needs no specific reply from the 1^st opposite party.  However  it is pertinent to mention here that the complainant himself has admitted the fact that he had placed the order THROUGH  the online platform operated by the 1^st opposite party. 

          The 1^st opposite party merely operates an online platform and all the  products on the platform are sold and supplied by the independent 3^rd party seller.  The products in the instant matter also have been sold and supplied by independent 3^rd party sellers and not by the 1^st opposite party.  The delivery details of the product and communication between the complainant  and the delivery personnel is denied due to want of knowledge.

          The complainant has presented the complaint against the 1^st opposite party based on twisted and concocted story. The real facts are that the alleged product was purchased from 4^th opposite party and the same  is clear from the copy of Tax Invoice attached by the complainant himself.  This independent 3^rd party seller had sold the product to the complainant through the 3^rd party logistic service provider. Thus the 1^st opposite party never came in possession of either the delivered product or the ordered product at any point of time.  The 1^st opposite party is not in a position to ascertain the authenticity of the grievance raised by the complainant.  The 1^st opposite party has not sold alleged product to the complainant. Further  when the complainant raised his grievance with the opposite party No.1, the 1^st opposite party being an intermediary duly escalated the same to the seller each time.  However the seller rejected the return request of the complainant every time stating that he has sold the right product in intact condition to the complainant. Further  even if the averments made by the complainant ,as the dispute, if any, is only between the complainant and the independent 3^rd party seller, ie, 4^th opposite party. The 1^st opposite party its best to solve the grievance of the complainant in its capacity of an intermediary.

          The 1^st opposite party has not received any notice from the complainant. The complainant must be put to strict proof for the same. The product never came into the possession of the 1^st opposite party during the entire transaction and the 1^st opposite party is not liable to provide relief of any sort to the complainant as the dispute, if any is only between the complainant and the independent 3^rd party seller.  The 1^st opposite party has tired its best to solve the grievance of the complainant in its capacity of an intermediary. Even at the stretch of imagination, it cannot be assumed that the 1^st opposite party has not cheated  or provided deficient service  of any sort or is indulged in unfair trade practice of any sort with the complainant.  Thus the complainant has failed to establish any cause of action against the 1^st opposite party.

          The present frivolous complaint is being filed by the complainant based on twisted facts with the malignant motive to damage the reputation and obtain unlawful gain against the 1^st opposite party and  1^st opposite party cannot be held liable for any deficiency of service or unfair trade practice against the complainant and cannot be held liable to pay any amount as refund, interest, compensation, cost or any other relief to the complainant.  Therefore in the facts and circumstances as submitted hereinabove, this commission may be pleased to dismiss the complaint against 1^st opposite party with exemplary costs awarded to 1^st opposite party.

3.      The 4^th opposite party denied entire allegations in the complaint and  contented as follows:-   

There is no deficiency or  illegal trade practice on the part of the  4^th opposite party and hence the present complaint is liable to be dismissed.  The 4^th opposite party is the manufacturer/supplier of the items/goods as mentioned in the complaint.  The 4^th opposite party has already supplied the goods to the 1^st opposite party and it was the duty of the duty of the  1^st opposite party safely deliver the said goods as mentioned at item No.4 of the complaint.

          That para No.6 of the complaint is wrong,  false hence denied for want of knowledge.  The contents of this para does not belong to answering 4^th opposite party.

          The para.No.11 of the complaint which is matter of record needs no reply. However the opposite party No.4 has no concern and it is the duty of the opposite party No.1 to safely delivered the goods to the complainant.

          The prayer clauses as mentioned in the complaint are neither sustainable nor maintainable qua the answering 4^th opposite party.  It is therefore prayed that the present complaint of the complainant  is to be dismissed qua the answering 4^th opposite party in the interest of justice.

  3.    Points for consideration are as follows:-

 1. Whether the complainant is entitled to get any relief from the opposite parties?

2. Whether opposite parties have committed deficiency in service? If so what is the quantum of compensation?

3. Reliefs and costs?

4. The complainant appeared in person and he was adduced oral as well as documentary evidence. Ext. A1 to A15 were marked. Opposite parties 1to 4 appeared and opposite parties 5&6 remained absent and declared exparte.

5. Point no.1 &2:-

      The complainant averred in the complaint that he had ordered desktop drive, motherboard and processor through the 1^st opposite party on 24.5.2021. After obtaining the amount of Rs.29,662/ and issued Ext. A1 to A4 invoices  on 25.5.2021 and 2.6.2021 the said items were brought to the complainant's house by the 6^th opposite party. It seems that the packet containing the desktop processor was so small and the other three items were intact. When the packet containing the processor was opened in front of the 6^th opposite party and both of them were shocked to see that the packet is empty. The complainant contacted the 2^nd opposite party telephonically and as per their directions placed the refund request on 2.6.2021 itself. Thereafter the complainant sent several messages to the 1^st opposite party.  In the beginning, the complainant received a message stating that they will find a solution within 72 hours. But on 27.6.2021 he received a message that his refund request has been rejected, simply based on the report of the 5^th  &6^th opposite party. Ext. A8 to A15 are the SMS communications between the complainant and the 1^st opposite party. In an attempt to convince the opposite parties  the complainant sent Ext.A5 notice to the opposite parties on 30.6.2021. Opposite parties 2&4 has accepted the same but did not make a reply. The complainant alleged deficiency in service and unfair trade practices on the part of the opposite parties.

Upon notice, none appeared on behalf of opposite parties  5&6. Hence opposite parties 5&6 were declared  exparte.

Opposite parties 1 to 3 appeared through counsel and filed version. They have denied the allegations leveled against them. They neither sell nor offers to sell any product and only provide an online marketplace where independent third-party sellers can list their products for sale. The sellers themselves are responsible for the respective listing product of the website. The said opposite parties have no responsibility for the said product listed by the third party. The contract of sale of products on the website is strictly a bi-party contract between the customer and the seller.

        The 4^th opposite party, manufacturer contended that they got registered with the 1^st opposite party and the products already supplied to them. So 1st opposite party has to deliver the goods to the customers. Therefore, the 4^th opposite party has no role to play in this respect. 

       On perusal of the evidence on records, it appears that the complainant has informed at the right beginning to the 1^st opposite party about the non-delivery of the product. The complainant alleged that he made dozen phone calls and requests to get his money back Ext. A5 to A15 documents are the evidence to substantiate the said contention of the complainant. It was alleged that the 6^th opposite party the delivery boy was the witness of a said anomaly but he or the 5^th opposite party, the authorized person of the courier service did not present to counter the allegation of the complainant. Seemingly 5^th opposite party is the authorized agency of the 1^st opposite party. Moreover, opposite parties nos. 1 to 3 had failed to substantiate their part by way of adducing any kind of evidence. The following decision rendered by the  “ Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in Amazon Seller Services Private Limited V. Vishwajith Tapia (3 December 2019, First Appeal No. 544 of 2019) is worthwhile to this case. The facts and circumstances of the said case in hand is more or  less the same. Wherein the appellant is the opposite party in this case. In which  Hon’ble Commission elaborately discussed about the role of intermediary and their liability. It is observed that

 “ No doubt the role of appellant/opposite party No.1 is that of an intermediary in the present case, but it cannot be said that it has no role to play in the harassment and loss caused to the complainant due to supply of old mobile handset vide Ext.C1. Online market place of company earns revenue each time a consumer clicks and visits on its website. Moreover, the same is being done as per the terms and  conditions between the online portal company and the sellers for a consideration. It is  the duty of the intermediary that its should verify the bonafides of the seller, who sells the articles and products. Intermediaries are entities and provide service enabling delivery of online contents to the end user. “Intermediary” has been defined in Section  2(w) of the Information Technology Act, 2000 and  thereafter the guidelines have been issued  in the form of the Information Technology (Intermediary Guildelines) Rules   2011, For providing protection to the intermediaries, general conditions have been framed as Safe Harbour Protection  subject to restrictions mentioned in Sub Sections(2) and (3) of Section 79 of the Information and Technology Act, 2000. Sec. 79 of the Information and Technology Act,2000, is a safe harbor provision subject to restrictions imposed in subsections(2) and (3) thereof.  If an online intermediary has specific knowledge or has reasonable belief based on information supplied by the right holder about the contents and the intermediary fails to act despite such knowledge, online intermediary can be held liable for infringement.”

 Thus the 1^st opposite party is liable  for infringement. Moreover, it appears that the 4th opposite party purposefully evades their liability blaming the first opposite party. It is to be noted that the responsibility of the opposite parties cannot be over after the sale of the product as it is the bounden duty of the opposite parties to satisfy their customers. Since both parties are equally liable for the loss sustained to the complainant. It does not give any liberty to usurp the money of the customers by non-delivery of the ordered items, sending wrong or defective items. Therefore, it is found that due to the above act of opposite parties the complainant suffered mental agony which attributes deficiency in service. It is revealed from the evidence that opposite parties have no convincing evidence against the evidence of the complainant.  So the complainant well proved his allegations with substantial evidence. Moreover, due to the above aspect it is no doubt that the complainant has lost his faith to the  4^th opposite parties product that is the reason for claiming to refund the entire amount. So we can’t discard the prayer of the complainant .Therefore the complainant is entitled to get entire amount as refund of Rs.29,662/-(Rupees Twenty nine thousand  six hundred and sixty two only), that opposite parties have received from the complainant on 24.5.2021. At the same time the complainant is liable to return the products received from the opposite parties simultaneously.

          In the above circumstances opposite parties 1 to 4 are liable to give compensation for deficiency in service and also liable to pay litigation cost to the complainant.

 6. Point no.2:-

 In the result, the complaint is allowed in part and direct as follows:- 

1.      The opposite parties 1to 4 are jointly and severally liable to refund Rs.29,662/ -(Rupees Twenty nine thousand  six hundred and sixty two ) to the complainant. In that event, opposite parties have at liberty to take back the desktop, drive, and motherboard from the complainant. Failing which the said amount shall carry interest @ 9% per annum from the date of compliance of this order till realization.

2.      Opposite parties1 to 4 are jointly and severally liable to pay 10,000/-(Rupees Ten thousand only) as compensation to the complaint and also liable to pay Rs.5000/- (Rupees Five thousand only) as the costs of proceedings to the complainant.

The order shall be complied within one month from the date of receipt of the copy of this order.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 19^th    day of May, 2022. 

                                                Sd/-Smt. C.K.Lekhamma(Member)

                                            Sd/-Sri.S.Santhosh Kumar(President)

Appendix:-Evidence of the complainant:-

PW1                      -   Ajmal.N.A,( Complainant)

Ext.A1                -    copy of Tax invoice

Ext.A2                -     Copy of Tax Invoice

Ext.A3                  -      Copy of Tax Invoice

Ext.A4                  -      Copy of Tax Invoice

Ext.A5                -        Notice  dtd. 30/6/2021

Ext.A6                -        Postal Receipts

Ext.A7                -        Acknowledgment  card with Envelop

Ext.A8                -        Whatsaap Message

Ext.A9                -        Whatsaap message

Ext.A10              -        Whatsaap message

Ext.A11              -        Whatsaap message

Ext.A12              -        Whatsaap message

Ext.A13              -        Photocopy of Parcel

Ext.A14              -        Whatsaap Message

Ext.A15              -        Whatsaap Message.

Evidence of the opposite parties:-             

•  NIL  -

///True Copy ///

To        

            Complainant/Oppo. party/S.F.

                                                                                                                           By Order

                                                                                                                    Assistant Registrar

Typed by:- Br/-

Compared by:-