Complaints filed on: 13-10-2020
Disposed on: 23-09-2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 23rd DAY OF SEPTEMBER 2022
PRESENT
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER
CC.No.55/2020
Sri. Nagendra .S S/o Late Shanthamallaiah .P
Aged about 47 years, R/at Shivashree, 5th Main,
Vijayanagar, Devanuru Church Main Road,
Tumakuru – 572 1025.
……….Complainant
(By Kum/Smt. Navya .B., Advocate)
V/s
1. The Manager, M/s Flipkart Internet Private Ltd.,
Buildings Alyssa, Begonia & Clove,
Embassy Tech Village,
Outer Ring Road, Devarabeesanahalli Village,
Bengaluru – 560 103, Karnataka, India.
2. Logicinside Technolab, 229,
Ectasy Business Park,
A.C.C. Cement Road,
Mulund (W), Mumbai-400 080.
3. Saraswathi Garments,
Building No.338, 3rd Floor,
Off.No.35, Narasinatha Street,
Katha, Bajar Masjid Bandar (W),
Mumbai – 400 099.
……….Opposite Party
(OP1 - By Sri. B.G.Gowrishankar, Adv.,)
(OP2&3 – Served, absent)
:ORDER:
BY SMT.G.T.VIJAYALAKSHMI, PRESIDENT
This complaint is filed against the OPs with a prayer to direct the OPs to deliver original items namely Bushnell Monocular and another item Bushnell Binocular along with a sum of Rs.5,00,000/- towards mental agony, negligent act while attending the service, harassment, caused to the complainant with interest, along with interest @ 18% p.a. from the date of petition till its realization.
2. The brief facts of the complaint as under:-
The respondent is doing e-commerce business and the respondent is supplying necessary articles to its customers as per the orders of consumers, the complainant used to purchase the articles from the respondent through booking from his official hand set mobile and hence the complainant is one of the regular customer of respondent firm.
2(a) The complainant further submitted that he intend to purchase Bushnell Monocular and also another item Bushnell Binocular for his personal use, and accordingly the complainant booked the said articles through his handset mobile application on 25.07.2020 and 09.08.2020 respectively. After booking the said articles, the respondent firm have delivered the said articles i.e. Bushnell Monocular on 31.07.2020 as per the respondent order No.OD11925259007163300 for which the respondent has collected consideration amount of Rs.909/- and further delivered Bushnell Binocular on 18.08.2020 vide order No.OD119384438710727000 for Rs.2,400/-.
2(b). The complainant further submitted that after receipt of the said items, the complainant opened the boxes and found that the articles sent by the OPs were fake one as there was no any specification like make, serial number, item code, bar code, MRP details of manufacturing and origin of the country and also provided Sakura Binocular instead of Bushnell Binocular. Hence, the complainant approached the OPs over phone and e-mail and expressed the fault committed by the respondent and requested to supply the original items. But the OPs have not properly responded to any of the request made by the complainant. Hence, the complainant got issued legal notice through RPAD on 20.08.2020 calling upon the OPs to supply the original items, But the OPs failed to comply the said notice did not deliver the original items even though on receipt of the legal notice. Hence, there is no any alternative, filed this complaint.
3. After service of notice, the OP Nos. 2 & 3 remained absent and the OP No.1 appeared and filed its version contending that the OP No.1 is an online marketplace e-commerce entity as defined under C.P. Act 2019 and Consumer Protection (E-Commerce) Rules, 2020. The said Flipkart platform is electronic marketplace model E-commerce platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent and customers. It is submitted that these sellers and independent end customers. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. Consumer Protection (E-commerce) Rules, 2020 has clearly distinguished marketplace E-commerce platform from the seller of the goods. Thus, for any act of the seller, the marketplace e-commerce platform or its operating entity cannot be held liable.
3(a). The OP No.1 further contended that the business of the OP 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 provides internet service providers, webhosting service providers search engines, online payment sites, online auction sites, online market places and cyber cafes”.
3(b). The OP No.1 further contended that the provisions of sub-section(1) shall apply if “the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted”. Further, Section 5(1) of Consumer Protection (E-commerce) Rules, 2020, also provides for exemption to marketplace e-commerce entity under sub section 1 of Section 79 who complies with sub-section (2) & (3) of that section.
3(c). The OP No.1 further contended that the OP only acts as an intermediary through its web interface www.flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their products(s) to the users of the Flipkart Platform. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. The answering OP does not directly or indirectly sell any product on Flipkart platform. Rather all the products on Flipkart platform are sold by third party sellers, who avail of the online marketplace services provided by the answering OP on terms decided by the respective sellers only.
3(d). The OP No.1 further contended that any kind of assurance, whether in terms of specifications, warranty on the products, delivery, price, discounts, promotional offers, after sale service, return and refund or otherwise are offered and provided by the seller of the products sold on Flipkart Platform. The OP neither offers nor provides any assurance and/or offers pick-up or refund facility to the end buyers of the product. It is further contended by the OP No.1 that the complainant has not been sold by the OP. The OP has no role in supply of a product sold by an independent seller through the Flipkart Platform of the OP. Further, the complainant has nowhere stated that there was any tampering with the product package and hence there does not arise any possibility of duplicate product being delivered to him. In any case, the OP is merely an intermediary and not the seller of the product and has never even had the possession of the package. The product was delivered by the seller with the help of an independent courier service provider and hence in the present case, the OP cannot be held liable by any stretch of imagination.
3(e). The OP No.1 further contended that the OP has not charged the complainant any amount of consideration for using his online platform. There is no privity of contract between the complainant and the OP and hence the OP does not render any liability arising out of such contract. The whole grievance of the complainant pertains to the complainant receiving an allegedly different/take product from that which was ordered. It is further contended that the independent third party sellers use the Flipkart platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart Platform. Once a buyer accepts the offer of sale of the products made by the third party seller on the Flipkart Platform, the seller is intimated electronically and is required to ensure that the products are made available delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart Platform.
3(f) The OP No.1 further contended that the complainant has not alleged any tampering with the package of the product and the courier service provider has already confirmed that correct product was delivered to him. Moreover, as a goodwill gesture, the seller of the product had offered to provide a refund for the product which was not acceptable to the complainant. In any case, it is most respectfully submitted that the OP cannot be held liable for any deficiency in service on the part of the seller or the manufacture and hence the present complaint is liable to be dismissed against this OP without any consideration.
4. The complainants and OP No.1 have filed their affidavit evidence. The complainant has marked the documents at Ex.P1 to P4.
5. We have heard the arguments from both parties.
1) Whether there is any deficiency in service on the part of OP?
2) Whether complainant has entitled for reliefs sought for?
6. Our findings to the aforesaid points are as under:
Point No.1: Partly in the affirmative
Point No.2: As per the final order
:R E A S O N S:
7. The complainant ordered Bushnell Monocular and Binocular on 25/07/20250 and 09/08/2020 respectively from Flipkart and the order was successfully delivered on 31/07/2020 and 18.08.2020 to the complainant respectively and the price for the order is 909/- and 2,400/- respectively. The complainant after receiving the order form Flipkart, found that the Monocular and Binocular are not original and it is fake i.e. not as shown by the OP No.1 on its website portal and also delivered Sakura Binocular instead of Bushnell Binocular. A complaint was also lodged with the customer care of the OP No.1.
8. The OP No.1 contended that he does not directly or indirectly sell any products on Flipkart Platform and all the products in Flipkart Platform are sold by third party sellers who avail the online market place service provided by OP No.1 and terms decided by the respective sellers only. The Binocular and monocular purchased by the complainant was sold by an independent seller through Flipkart Platform. Further, the OP No.1 contended that the Binocular and Monocular were purchased from the third party seller i.e. OP No.2 by the complainant as the complainant filed copy of tax invoice of the product. It is OP No.2 who sold and supplied the product to the complainant. It is also contended that the involvement of OP No.1 is an intermediary only and he is not involved in the entire transaction except of providing the online transaction for the transactions and the concern contracts of sale and purchase in between the sellers and buyers only. The contract of sale is a bipartite contract between the buyer and seller only. As op No.1 is mere intermediary and not the manufacturer or seller of the product sold to the complainant and cannot assume liability for fake product supplied. It is only the seller who is liable towards the complainant for fake product supplied.
9. Perused the evidence on record, it clearly established that the complainant placed the order through Flipkart for purchase of the said Binocular from OP No.2. Even though the receipt issued by the OP No.2, the receipts came from Flipkart i.e. OP No.1 to complainant. Hence, the Flipkart stands as co-seller. The OP No.1 is not a mere broker/intermediary as considered in the commercial world, it was acting as a representative/agent of OP No.2 during the negotiation. All transactions took place through the OP No.1 and contract also concluded between the complainant and OP No.2 through OP No.1. The delivery of the Binocular and monocular to the complainant was also through Flipkart. Moreover, the payment was made to the Flipkart and payment also received by the Flipkart only. Therefore, the OP No.1 is personally and jointly answerable for the supply and delivery of goods and also be liable for the consequences arising out of the breach of contract.
10. In Emerging India Real Assets Pvt. Ltd. & Ano., V/s Kamer Chand & Ano., R.P.No.765/2016, wherein the Hon’ble National Commission held that “it was the bounden duty of the facilitator to ensure that goods sold through the any individual are manufactured as per quality standard. If the goods purchased through online are found not up-to the mark, online portal through which goods were purchased, cannot escape its liability”. Similar view has taken by the Hon’ble Punjab, Chandigarh State Commission in the following decisions i.e. in Amazon Seller Services Pvt. Ltd. V/s Vishwajit Tapia & Ano. in First Appeal No.544/2019 decided on 03.12.2019 and in Flipkart Internet Pvt. Ltd. V/s Arish Juneja in First Appeal No.321/2019 decided on 22.02.2022.
11. The main allegations of the complainant is that "he received a wrong and duplicate product". As complainant stated he placed an order for Bushnell Binocular 20X50, but delivered Sakura brand Binocular instead of Bushnell Binocular. He got duplicate Bushnell binocular without accessories and without original bill. The complainant also made other allegations i.e.:
- There is no MRP on the product
- There is no manufacturer details
- There is no serial No., Model No/item code, barcode. and so on
- Sellers contact and details not provided.
- Origen of the Country
As per the e-commerce Rules - There is an obligation to disclose the following:-
Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform:
(a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage:
Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution;
12. In view of the above Rules, the OP No.1 is failed to provide the information and thereby violated e-commerce Rules. "Not providing the mandatory information is nothing but deceptive practice which distort the consumer choice. Therefore, as e-commerce portal Flipkart/OP No.1 is liable for not mentioning the above information.
13. The complainant claimed Rs.5,00,000/- as compensation although he is not entitled to claim compensation of Rs.5,00,000/-, due to the mindset of the complainant. As complainant admitted, the OPs are ready to refund the price of Binocular and Monocular, but the complainant refused to accept the refund and return the products to OPs. The complainant has stick-on to the replacement of the original product. However, the complainant is not submitted any evidence to show that he placed the order regarding particulars of the product and received fake binocular and monocular and also not disclosed on what grounds he came to conclusion that the monocular supplied by the Ops are fake. Therefore, he is not entitled to claim Rs.5,00,000/- as compensation. It is just and proper to direct the OPs to refund the amount of Rs.909/- and Rs.2,400/- by receiving the Monocular and binocular from the complainant. The OP No.1 is at liberty to send representative to the house of the complainant to collect the monocular and binocular. The complainant is directed to hand over the said products to the representative of the OP No.1 against proper receipt. Accordingly, we proceed to pass the following:-
:ORDER:
The complaint is allowed in part with costs.
The OPs are directed to refund Rs.909/- and Rs.2,400/- to the complainant by receiving the Monocular and binocular from the complainant.
The OPs are further directed to pay Rs.3,000/- as litigation expenses.
Further, the OPs are directed to pay Rs.5,000/- as punitive damages, out of which, Rs.2,500/- shall be payable to complainant and remaining Rs.2,500/- shall be deposited in the Consumer Legal Aid Account of this Commission.
The OPs are further directed to comply the above order within 45 days from the date of receipt/knowledge of this order.
Supply copy of this order to both parties with free of costs immediately.
