Date of filing :13.3.2018

Judgment : Dt.9.8.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Debdutta Chakraborty alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely The Manager, Flipkart.

            The Case of the Complainant, in short, is that she intended to purchase a mobile phone being Samsung Galaxy one 8 (white colour with specification of 16 GB internal memory), and so placed an order with the OP being order No.0D207259139147441000 and paid a sum of Rs.13,410/- towards the price of the said mobile phone through her Debit Card of SBI Account No.20229675465 and soon after making the payment, the aforesaid amount was credited in the account of SBI DC Flipkart at Flipkart TXN No.628020019279 on 6.10.2016. But, in spite of receipt of the entire consideration price, the goods was not delivered to the Complainant by the OP nor the money was refunded back to her. Hence, the present complaint has been filed by the Complainant praying to direct the OP to deliver the product of Samsung Galaxy one 8 or to direct the OP to pay Rs.13,410/- paid towards the consideration price for the said mobile phone along with interest accrued therein, to pay compensation of Rs.50,000/- and litigation cost.

            Complainant has filed Pass Book related to the concerned Bank Account, the mails exchanged between the parties and a copy of the letter sent by the Complainant through her Advocate to the OP.

            OP has contested the case by filing written version denying and disputing the allegations contending inter alia that the OP is not a seller of the product but a mere on line intermediary. As an intermediary, OP provides on line platform where different registered sellers sell their products and buyers purchase such products from the respective seller on the aforesaid on line marketplace website. So, the OP is neither a trader nor a service provider and thus they have prayed for dismissal of the case. It is also stated that the Complainant had also filed a previous complaint being CC/307/2017 which was dismissed due to non-compliance of the Forum’s order and so the present case is barred by principle of resjudicata.

            During the course of evidence, parties adduced their respective evidence followed by filing of the questionnaire. But to the questionnaire filed by the OP no reply was filed by the Complainant. Ultimately the argument has been advanced by both sides and they have also filed brief notes of argument.

            So the following points require determination-

1. Whether there has been any deficiency in service on the part of the OP?
2. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

            Both the points are taken up together for a comprehensive discussion. In support of her claim that she had placed an order with the OP for purchase of a Samsung Galaxy one 8 mobile phone and paid the entire consideration price of Rs.13,410/-. Complainant has filed her Pass Book from which it appears that on 16.10.2016 an amount of Rs.13,410/- was debited from her bank account being No.20229675465 with  SBI, in favour of OP namely Flipkart. So, apparently, the money was transacted in favour of OP Flipkart for the said on line purchase. It appears from the Pass Book which has entry till 18.8.2017 that the said money of Rs.13,410/- debited from her account was not credited back which indicates that the transaction was successful and the same was credited in the account of the OP. From the mails exchanged between the parties, it appears, vide mail dt.20.3.2017, OPs have written to the Complainant that they were looking into the matter indicating that the Complainant had complained about non delivery of the goods even though the transaction was completed. However on the same date, Complainant mailed OP stating that though the transaction for four times was declined, but 5^th time there was deduction of Rs.13,410/- from her account. However, OP in reply asked her to get in touch with the Bank’s Customer Care for unsuccessful payment. In this context, it may be pertinent to point out that as highlighted above, about entry in the Pass Book of the Complainant that it clearly reveals that the money was debited from her account and till 18.8.2017 the money was not reverted back or credited in her account. The Complainant has also filed a certificate appears to have been issued by the Branch Manager of the concerned Bank in respect of her account that there has not been any transaction in the said account since after 29.3.2017. It is the specific claim of the OP that the payment was unsuccessful and they did not receive the amount, but they have not filed the relevant extract of statement of their account that the money was not credited in their account. So, OP has not filed any document in order to establish its claim that they did not receive the amount. If that be so, since neither the goods has been delivered to the Complainant nor the money has been refunded to her, there has been deficiency in service on the part of OP and as such Complainant is entitled to the relief as prayed.

            So far as the contention of the OP that it is only an intermediary in this context it may be mentioned that same may be applicable in case of any manufacturing defect in the product. But so far as the facts and situation of this case, since money was paid to the OP, OP is liable for non-delivery of the product.

            OP has also contended that the present case is barred by the principle of resjudicata as a case being No.CC/307/2017 was filed by the Complainant earlier. But it is apparent that the said former case was not heard and decided on merits and was dismissed for non-compliance of Forum order suggesting that it was dismissed for default. In such view of the matter, Complainant is entitled to the delivery of Samsung Galaxy one 8 (white colour with specification of 16 GB internal memory) or in alternative refund of the price of Rs.13,410/- together with interest. However, in the given facts and situation of this case, we do not find it justified to allow the compensation.

            Hence

                                         ordered

            CC/126/2018 is allowed on contest. OP is directed to deliver the product namely Samsung Galaxy one 8 (white colour with specification of 16 GB internal memory) or in alternatively refund the amount of Rs.13,410/- along with interest on the said amount @9% p.a. from the date of payment to till this date, within two months from the date of  this order. OP is also directed to pay litigation cost of Rs.10,000/- within the aforesaid period of two months.