Complaint No: 144 of 2022.
Date of Institution: 18.07.2022.
Date of order: 06.09.2023
Amarjit Singh son of Surjit Singh, Next Level, Geeta Bhawan Road, Gurdaspur.
.....Complainant.
VERSUS
- The Manager of Flipkart, Flipkart Internet Private Limited, Ozone Manay Tech Park, #56 / 18&55 / 09, 7th Floor Garvebhavipalya, Hosur Road, Bangalore-560068.
- SJCAM Limited Company Limited, through its Managing Director, Big Trends D-50, Hari Alokik Heights, G-3 Ground Floor, Subhash Marg, C-Scheme, Jaipur-302005.
.....Opposite parties.
Complaint U/s 35 of The Consumer Protection Act.
Present: For the Complainant: Sh.Vinod Harchand, Advocate.
For the Opposite party no.1: Sh.K.K.Attri, Advocate.
Opposite party no.2 exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Amarjit Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, (here-in-after referred to as 'Act') against The Manager of Flipkart Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is resident of above mentioned address placed one order before OP No.1 by way of online for SJCAM Action Camera, SJ 10 Pro 12 MP 4K6Ofps on 23.08.2021. Complainant has made the payment of his order through Credit Card of Axis Bank amounting Rs.19,999/-. The complainant received the above said product i.e. SJCAM Action Camera on 25.08.2021 through service of Flipkart. It is alleged that complainant after receiving the above said product, when he opened the said parcel and found that product ordered by him is not working properly and the same is a defective piece. It is further pleaded that thereafter, complainant immediately made a request for return of parcel as the same was having manufacturing defect. It is further alleged that the OP No.1 has rejected the request of complainant regarding changing/returning the product in question. It is further pleaded that the OP No.1 did not pay any heed the request of complainant as per the terms and conditions of the online services and assurance given by, OP No. 1 and 2 is liable to change/replace the defected product but OP’s did not do so and violated the terms and conditions of the online policy and assurance given in the advertisement. It is further alleged that the complainant has been so harassed by the OP’s and the OP’s have illegally and erroneously repudiated the claim of the complainant, which act on the part of the OP’s is altogether wrong, illegal, arbitrary, and cryptic, against the natural justice and is biased one, which amounts to deficiency in the service on the part of the OP’s. It is further pleaded that it also amounts to a fraudulent act on their parts and without any just cause and reason the OP’s are delaying the matter on one pretext and another. It is further pleaded that the opposite parties were served with legal notice dated 17.03.2022, but no reply was given by them, even complaints on the customer care of the OP’s were also made, but till today grievance of the complainant was not removed by the OP’s. It is further pleaded that the complainant received a call from the OP No. 2, but he refused to return the camera or refund the amount to complainant on lame excuses only and due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience and as there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to replace the SJCMA Action Camera to complainant or to return the payment of Rs.19,999/- to complainant within period of 15 days and to pay an amount of Rs.1,00,000/-(One Lac) as pecuniary loss along with Rs.1,00,000/- for mental as well as physical harassment and Rs.50,000/- for litigation expenses, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the opposite party No. 1 (hereinafter referred to as Answering Opposite Party) seeks to submit the following Preliminary Submissions, each of which has been taken in the alternative and is without prejudice to the other. It is further pleaded that the Complainant has suppressed true and material facts from this Hon'ble Commission and cooked all crooked stories of suffering and as such the present complaint is not maintainable and liable to be dismissed against the Answering Opposite Party. It is further pleaded that the Answering Opposite Party, Flipkart Internet Private Limited is a company duly registered under the provisions of the Companies Act, 1956 and Company is engaged, among others, in providing trading/selling facilities over the internet through its website www.flipkart.com and mobile application (Mob App) (hereinafter collectively referred to as the "Flipkart Platform"), that the said 'Flipkart Platform' is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end customers. It is submitted that the business of the Answering Opposite Party falls within the definition of an “intermediary” under Section 2(1) (w) of the Information Technology Act, 2000, which is reproduced hereunder:
- "intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;"
It is pleaded that the Answering Opposite Party does not directly or indirectly sell any products on the Flipkart Platform, Rather, all the products on the Flipkart Platform are sold by third party sellers, who avail the online marketplace services provided by the Answering Opposite Party, on terms decided by the respective sellers only. It is further pleaded that in the instant complaint also, it can be evidenced from the invoice that the actual seller of the product is a third-party seller i.e. O.P. No. 2 and not the Answering Opposite Party herein. Hence, the request for replacement/ refund made by the Complainant cannot be fulfilled by the Answering Opposite Party. It is further pleaded that any kind of assurance, whether in terms of warranty on the products, price, discounts, promotional offers, after sale services or otherwise, are offered and provided by the seller or manufacturer of the products sold on the Flipkart Platform. It is further pleaded that the Answering Opposite Party neither provides any offers/discounts nor provides any assurance and warranty to the end buyers of the product. It is further pleaded that the Answering Opposite Party respectfully submits that the Complainant doesn't fall under the category of consumer of the Answering Opposite Party under the provisions of the Consumer Protections Act as the Answering Opposite Party is neither a 'trader' nor a 'service provider' and there does not exists any privity of contract between the Complainant and the Answering Opposite Party. It is further pleaded that the Complainant has wrongly arrayed the Answering Opposite Party in the present Complaint and hence the complaint is bad for mis-joinder of party. It is further pleaded that no relief sought against the Answering Opposite Party can be granted in the given facts and circumstances. The product purchased by the Complainant has not been sold by the Answering Opposite Party and the Answering Opposite Party has no role in providing replacement/refund/delivery of the product sold by an independent seller through the Flipkart Platform of the Answering Opposite Party. It is further pleaded that on the Flipkart Platform i.e., On merits, the opposite party No. 1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party no.1. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Opposite party No. 2 did not appear and despite the service of notice and was proceeded against exparte wide order date 19.10.2022.
5. Learned counsel for the complainant has tendered into evidence affidavit of Amarjit Singh, (Complainant) as Ex.C-1 along with other documents as Ex.C-2 to Ex.C-9.
6. Learned counsel for the opposite parties No.1 has tendered into evidence affidavit of Ms. Sanchi Chhabra Authorized Signatory of Opposite Party No.1 as Ex.OPW-1/A along with reply.
7. Rejoinder not filed by the complainant.
8. Written arguments not filed by both the parties.
9. Counsel for the complainant has argued that complainant had purchased one SJCAM Action Camera, SJ 10 Pro 12 MP by making payment to opposite party No.1. However, the said camera was found to be a defective piece. It is further argued that complainant had requested for return of the said defective camera but opposite parties refused to redress the grievance of the complainant which amounts to deficiency in service.
10. On the other hand counsel for the opposite party No.1 has argued that opposite party No.1 provides online market place/platform of sellers and buyers of products to facilitate the transactions electronic schemes for various goods by and between respective buyers and sellers and the liability if any is of opposite party No.2 who sold the said camera to the complainant.
11. Opposite No.2 remained exparte.
12. We have heard the Ld. counsels for the complainant and opposite party No.2 and gone through the record. It is admitted fact that complainant had purchased one camera as fully detailed above vide tax invoice Ex.C5 from opposite party No.2 by making payment to opposite party No.1. It is further admitted fact that complainant had sent return request in respect of the said camera and as per message Ex.C7 the return request was rejected by the opposite parties on 01.09.2021. Perusal of tax invoice Ex.C5 shows that said invoice is of 23.08.2021 and the item was delivered on 25.08.2021 and return request was rejected on 01.09.2021. Meaning thereby that the complainant had made return request within one week of the deliver and this Commission is of the view that complainant was within his right to make return request to the opposite parties if the product was found to be defective and was found to be not accepted to the complainant. The plea of the opposite party No.1 that opposite party No.1 is only online platform available to the buyers and sellers to the product and has no role to play in the replacement of the product is not acceptable as the perusal of documents and tax invoice shows that the payment of Rs.19,999/- has been sent to the account of the opposite party No.1. As such opposite party No.1 cannot escape from its liability by taking shelter of plea of only provider of online market place services. Reliance is being place on order of Hon'ble State Consumer Disputed Redressal Commission Pb. Chandigarh First Appeal No.321 of 2019 decided on 22.02.2022 case titled as Flipkart Internet Private Limted. Vs. Arish Juneja etc. wherein the Hon'ble State Consumer Disputed Redressal Commission Pb. Chandigarh has held as under:-
"The other plea taken by the appellant/opposite party that the business of appellant falls within the definition of an "intermediary" u/S 2(i)(w) of the Information Technology Act, 2000. There is no privity of contract with the complainant, as it merely provides an online marketplace where the independent third party sellers can list their products for sale; therefore, the sellers themselves are responsible for their respective listing of products on the website and Opposite Party is neither responsible for products that are listed on the website by various third party sellers as well as their delivery. The payment has been received by the appellant/opposite party, therefore, it cannot be said that there is no privity of contract between the respondent/complainant and appellant/opposite party. Once the appellant/opposite party No.1 has accepted the payment, then the appellant/opposite party No.1 also along with respondent/opposite party No.2 is responsible for delivery of short products and of the quality of products. Therefore, the ground taken in the appeal is not justified".
As such after reliance upon the above referred case law and going through the facts of case and evidence, this Commission has come to the conclusion that refusal to replace the camera purchased by the complainant amounts to deficiency in service on the part of the opposite parties. As such present complaint is partly allowed and opposite parties directed to refund the amount of Rs.19,999/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite parties are also directed to pay compensation of Rs.2,000/- for mental tension and harassment and costs of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
13. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
14. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept. 06, 2023 Member
*YP*
