Hon’ble Mrs. Rumpa Mandal, Member.
The concise fact of the complaint case is that the Complainant Ayub Hossain Ahamed, S/O Kudrat Ali Ahamed, Vill & P.O. Balabhut (North), P.S. Tufanganj, Dist-Cooch Behar booked a Samsung Guru Music-2 mobile set Model No. MOBGA6GQDBH0ERUZ HSN/SAC- 85171300 on 02.06.2023. On 09.06.2023 the O.P. No.1 i.e. the Office-in-charge, Ramatri Artificial Jewellery, Portion of R. No. 474, Block No.A-179, Ulhas Nagar, Maharashtra sent the mobile through O.P. No.2 i.e. the Office-in-charge, Flipkart Pvt. Ltd., Flipkart Internet Pvt. Ltd., Building Alyssa, Begonia & Clove Embassy Tech, Vill- Outer Ring Road, Devarabeesanahalli, Bengaluru, Karnataka. Accordingly, Complainant paid of Rs.2099/- as cash on delivery vide Tax Invoice No.FA0KDX2400000316 dated 03.06.2023. After purchased within warranty period he faced a lot of problem with the mobile handset such as speaker and sound issue and battery charge was not stayed for long time and there is also other problem in the said mobile handset. Thereafter, the Complainant go to Samsung Service Centre i.e. O.P. No.3 on 26.06.2023. But after checking mobile handset, the O.P. No.3 said that S/N number is mismatched with the IMEI number when O.P. No.3 checked the IMEI number in GSPN was showing this IMEI number and device feature the S/N number is different. On 21.07.23 O.P. No.3 issued a certificate that this Samsung product is not genuine. So, it is not consider under service. The above activities of the O.P. No.1 & 2 are totally illegal as well as mal practice. The cause of action for the present case arose on 09.06.23 when O.P. No.1 & 2 send duplicate mobile set and on 26.06.23 and 21.07.23 O.P. No.3 issued certificate and still it is continuing. The Complainant prayed for directing the O.P. No.1 & 2 to change the mobile set or refund of Rs.2099/- with up to date interest, Rs.50,000/- as mental pain and agony as well as deficiency in service and Rs.20,000/- cost of litigation.
The O.P. No.1 preferred not to contest the case and as such the case was heard ex-parte against him vide order No.3 dated 23.11.2023. Vide Order No.8 dated 31.07.2024 O.P. No.3 can contest the case in absence of written version only on the basis of complaint petition. But O.P. No.3 has not filed any evidence in chief supported by affidavit and has not advanced any oral argument. Only O.P. No.2 contested the case by filing written version denying each and every allegation in black and white. The positive defence case of the O.P. No.2 in brief is that the Complaint petition is not maintainable and deems fit to be dismissed against this O.P. No.2. The O.P. No.2 is not the seller of any product but merely on online intermediary providing a common platform to the buyers and independent third party sellers and O.P. No.2 cannot be held liable for the alleged non-delivery of the product in the instant matter. The independent third party sellers use the Flipkart platform to list, advertise and offer to sell their products to the users/ buyers who visits the Flipkart platform. Therefore, the whole responsibility to ensure the delivery of the ordered product in a timely manner lies upon the seller of the product and not the answering O.P. No.2. There is no privity of contract between the Complainant and O.P. No.2 and hence O.P. No.2 does not incur any liability. It is submitted that no dispute as contemplated under the Consumer Protection Act, is caused to have arisen between Complainant and the O.P. No.2. The O.P. No.2 is a online market place E-Commerce entity. As per C.P. Act and E-Commerce Rules the business of the O.P. No.2 runs as intermediary under section 2(1) (w) of IT Act and it protected under section 79 of the IT Act. Section 5 (1) of the C.P. Rules provides for exemption and under section 79 of the Act. Flipcart is not responsible for any non-performance or breach of any contract entered into between buyers and sellers. Seller is the ultimate beneficiary from the entire transaction. The product is sold by the seller through third party logistics service provider. The O.P. No.2 claimed that the Complainant failed to prove any cause of action against O.P. No.2. So, the case is liable to be dismissed with cost.
Perused the case record and all documents submitted by the Complainant and the O.P. No.2. Heard, the argument advanced by both the parties at length. The question of fact and law involved in this case demand for ascertainment of the following points for proper adjudication of this case.
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.1 being seller and O.P. No.3 being the manufacturer of the product in dispute decided not to contest the case as such it was heard ex-parte against them. The O.P. No.2 Flipkart Private Limited contested the case with the principle defence that they as an intermediary has not liability in this case and as such they have been wrongly impleaded 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 Samsung Guru Music2 Mobile handset.
The Complainant proved the tax invoice for purchase of the said product being Samsung Guru Music2 Mobile handset from M/S Flipkart Private Limited of which the manufacturer is O.P. No.1 Ramatri Artificial Jewellery for a sum of Rs.2099/-.
The seller 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 side. But O.P. No.2 did not deny that the said technical fault in the product was caused within 1(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. Neither the O.P. No.1 nor the O.P. No.2 denied that the product was not purchased from the Complainant. Annexure- 1,4 & 5 duly proved that the Complainant purchased the product from the O.Ps.
Thus, after considering all aspect of the case and in view of the observation in the foregoing paragraphs this Commission is of the view that the Complainant is the customer of O.Ps under the C.P. Act, 2019.
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 they are taken up together for brevity and convenience of discussion.
The main allegation of this case raised by Complainant is that within warranty period, the mobile handset has not been functioning properly. On 26.06.2023 Complainant handed over the mobile set to the Samsung Service Centre i.e. O.P. No.3. After checking O.P. No.3 said that as per concerned, this is not a genuine Samsung product, so it is not consider under service according to Annexure-5.
The Commission have gone through the record very carefully. Perused the documents evidence on affidavit filed by both the parties. 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 & 2. Annexure-1 duly proved that the Complainant purchased the product from the O.Ps. Annexure-2 is the photocopy of mobile handset including battery. Annexure-3 is the E-Kart logistic service provider issued by the Flipkart. Annexure- 4 & 5 are the service knowledge portal issued by the Manager, Samsung Service Centre. The Samsung Service Centre clearly states that “As per concerned, this is not a genuine Samsung product, so it is not consider under service”.
It stands also proved that the product became defective within the warranty period as the seller of the product O.P. No.1 did not contest the case.
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.
The case record further shows that Complainant went to the O.P. No.3 i.e. Samsung Service Centre on 26.06.2023. But after checking the mobile handset O.P. No.3 “observed the S/N number is mismatched with the IMEI number when O.P. No.3 checked the IMEI number in GSPN was showing this IMEI number and device feature the S/N number is different”. As per concerned of Samsung Service Centre, this product is not a genuine Samsung product, so it is not consider under service.
The defence plea taken by the O.P. No.2 in their written version is 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 select the receiver of the transmission and select or modify the information contained in the transmission. The intermediary observes due diligence while discharging his duties under this Act.
It does not observe due diligence which discharging its 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.2 did not act merely to initiate the transmission or access to a communication system. The O.P. No.2 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.2 did not take due diligence while discharging his duties. Goods can be purchased either from whole seller or retailer. Nowadays even from online shopping E-Commerce in an important part of sale and purchase. Online purchase is quite cheaper and scope of huge discount. So, customer are allured for online purchase.
Here in this case price has duly paid for it. A good is purchased for serving the purpose for which its purchased and here the Complainant for his urgent need purchased the mobile set but the purpose is not served. So, the seller i.e. O.P. No.1 cannot escape the liabilities. But there is nothing in evidence that customer did not fulfill his obligation. So, the Complainant has right to get the service of the goods. So, the intermediary and the seller are jointly and severally liable. It is the duty of the service provider to render proper service to the customer within the warranty period for his Samsung Guru Music2. It is the duty of the O.P. No.1 & 2 to remove the defect and the same is not genuine Samsung product, so it is not consider under service according to Annexure-4 & 5.
Accordingly, the Complainant should be compensated by another set of the same type or return the value which he paid at the time of purchase of the said mobile set.
Having assessed the entire case record and in view of the discussion made in the foregoing paragraph this Commission comes to the opinion that there is deficiency in service by the O.P. No.1 & 2 in regard to failure to change the product. So, the Complainant is entitled to get the relief prayed for and the liability of O.P. No.1 & 2 are 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.2 and ex-parte against O.P. No.1 & 3.
Hence, it is
Ordered
That the complaint case No. CC/68/2023 be and the same is allowed on contest against O.P. No.2 and ex-parte against O.P. No.1 & 3 with cost. The O.P. No.1 & 2 are jointly and/or severally liable. The O.P. No.3 is dismissed from his liability.
The Complainant do get an award for a sum of Rs.2,099/- being the actual price of the defective product, Rs.20,000/- towards deficiency in service and Rs.18,000/- towards litigation cost.
The O.P. No.1 & 2 are directed to pay the total sum of Rs.40,099/- (Rupees Forty Thousand and Ninety Nine only) jointly and/or severally within 30 (thirty) days from the date of passing the Final Order failing which the Complainant shall be entitled to get interest @6% 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 is also available on www.confonet.nic.in.
Dictated and corrected by me.
