Present : Sri. C.T. Sabu, President
Smt. Sreeja. S., Member
Sri. Ram Mohan R., Member
31st day of August 2022
CC 481/16 filed on 31/08/16
Complainant : Aloysius C.C., Thattil Cheenikal,
Thekkekara Estate, Kizhakkumpattukara.
(By Adv. Febin James, Thrissur)
Opposite Parties : 1) The Proprietor, Johnkart.Com, Behind Sony Centre,
Ravipuram, M.G. Road, Kochi, Kerala – 682 016.
2) The Proprietor, Kuruvithadam Agencies,
Sub Jail Road, Lourde Centre Periyar Nagar,
Aluva, Kerala – 683 101.
3) The Managing Director, Flipkart, Pallimukku,
M.G. Road, Ernakulam – 682 016.
(OP 1 & 2 Ex-parte
OP 3 By Adv. T. P. Saju, Thrissur)
O R D E R
By Sri. Ram Mohan R, Member :
- Complaint in brief, as averred :
The complaint is filed under section 12(1) of the Consumer Protection Act, 1986. The Complainant on 04/05/16 ordered for a ‘Samsung 6.2 Kg fully automatic washing machine, model No.WA62H4000HD/TL’, through the e-commerce website of the 3rd opposite party. The complainant claims that the said model which he ordered shall have SS Diamond drum, Digital Display, Wobble technology and rear control panel, the price paid being Rs.13,791/-. On 07/05/16, the 1st opposite party seller through the 2nd opposite party delivery agent delivered to the complainant another model of Samsung Washing Machine with model No. WA62H4001HD/TL, which statedly was a cheaper model with plastic drum instead of the SS drum. The complainant repeatedly brought this discrepancy to the notice of the 3rd opposite party via email and finally the 3rd opposite party expressed readiness to replace the washing machine in question with another model which the complainant did not pay heed to, as he was particular about the model which was originally ordered for. Hence the complaint. The complainant alleges unfair trade practice and deficiency in service on the part of the opposite parties and prays for an order directing the opposite parties to refund the amount he paid, apart from other reliefs of compensation and costs.
2) NOTICE :
Commission having issued notice to all the opposite parties, the 3rd opposite party contested the case and filed their version. The 1st & the 2nd opposite parties failed to enter appearance or file their version before the Commission, inspite of their having received the Commission’s Notices to that effect. Hence proceedings against the 1st & the 2nd opposite parties were set ex-parte.
3) Version of the 3rd Opposite party :
The 3rd opposite party states that they are only an intermediary under Section 2(1) (w) of the Information Technology Act, 2000. They do not deny the complainant’s having ordered for the specified model of the washing machine through their web interface, www.flipkart.com, but avers that they do have the protection under Section 79 of the Information Act, 2000. They also contend that the product is sold and delivered by the 1st opposite party and that there is not privity of contract between them and the complainant. It is also their stance that they have not charged any amount from the complainant for using their market place platform hence the complainant does not fall within the definition of ‘consumer’ with respect to them. It is further contended that the warranty/guarantee of goods and services sold by, is the responsibility of the seller as per clause 2.3(viii) of the Press Note No.3 (2016 series) clarification issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India. It is also their contention that the disclaimer in the terms of use of their online platform states that the contract of sale is a bipartite contract between the buyer and the seller only, and they (3rd opposite party) are not party to it. According to the 3rd opposite party, the 1st opposite party is the seller and the 2nd opposite party is the delivery agent of the sale in question. The 3rd opposite party avers that they are only an intermediary which facilitates such transactions between independent sellers and end consumers and hence the complaint is not maintainable against them.
4) Evidence :
The complainant produced documentary evidence that had been marked Exts. P1 to P4, apart from affidavit and notes of argument. The complainant in the meantime, prayed for appointment of an Expert Commissioner to ascertain the discrepancy in delivery, which was allowed. The report submitted by the Expert Commissioner appointed by the Commission is marked Ext. C1. The 3rd opposite party does have no documentary evidence on their part, but version, affidavit and notes of argument. The proceedings against the 1st & the 2nd opposite parties being set ex-parte, no evidence produced on their part.
5) Deliberation of evidence and facts :
The Commission has very carefully examined the facts and evidence of the case. Ext. P1 is the copy of the warranty card issued to the complainant. Ext. P2 is copy of Retail Invoice. Ext. P3 is copy of the Logistics Post Booking cum Delivery Challan. Ext. P4 is print out of the email trail between the complainant and the 3rd opposite party. Ext. C1 is the report submitted by the Expert Commissioner after inspecting the washing machine in question.
6) Points of deliberation :
(i) Whether the complainant is ‘a consumer’ with emphasis on his
relationship with the 3rd opposite party ?
(ii) Whether the act of the opposite parties is tantamount to unfair trade
practice or whether there is any deficiency in service on the part of
the opposite parties ?
(iii) Whether the complainant is entitled to receive any compensation
from the opposite parties ? If so its quantum ?
(iv) Costs ?
7) Point No.(i) :
The complainant’s case is that instead of Samsung Washing Machine model No. WA 62H4000HD/TL which he ordered through the web portal of the 3rd opposite party, another model of inferior quality i.e. Samsung Washing Machine Model No.WA62H4001HD/TL was delivered to him. The complainant paid a consideration of Rs.13,791/- vide Ext. P2 Invoice for the said order. At the outset itself, it is abundantly clear that the complainant pays for the total order value which includes the item value, market place fee, Commission fee, collection fee, fixed fee, shipping fee and the taxes. Ideally the seller receives the total item value after taxes and market place deductibles. It goes without saying that at the time of placing an order by the complainant, there is an implied service contractual obligation by the 3rd opposite party herein, to ensure the delivery of the right product as per the order. The arguments of the 3rd opposite party that there is no privity of contract with the complainant and that he has not paid any consideration to the 3rd opposite party in the online transaction hold no water as per law, for the simple reason that the order is booked by the complainant on the website of the 3rd opposite party. The 3rd opposite party does not have any contention that the complainant had not done the online order of the washing machine in question through their website. Infact the 3rd opposite party in para 13 of their version admits that the complainant purchased the product through Flipkart. Thus the 3rd opposite party, being an e-commerce platform or an intermediary, plays much more active role in the supply chain management. In the instant case, the issue is about the delivery of a wrong product in contrast to the one ordered. The 3rd opposite party is not a passive entity in the supply chain, instead as a service provider it proactively optimises and facilitates transactions between the sellers and the buyers on its platform. Irrespective of the terms and conditions of the sellers, there is an inherent responsibility on the part of the 3rd opposite party, being the facilitator for all the support services expected by the consumers including the logistic service of delivering the right product to ensure customer satisfaction and resolve the issues faced by the complainant. The case in hand, relates to delivery of a wrong product and it is not one relating to warranty or guarantee. Hence the arguments of the 3rd opposite party that the warranty/guarantee of goods/services is the responsibility of the seller and not the e-commerce platform such as Flipkart.com the as per the clause 2.3 (viii) of the Press Note No.3 (2016 series) clarification issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India, is not sustainable. Moreover by presenting themselves as “mere intermediary” and claiming liability exemption under Section 79 of the IT Act is not applicable in the instant case, because the said provision provides safe harbour protection to intermediaries from the liability arising out of 3rd party content or information, which is not the case here and resultantly it is a matter beyond doubt that the complainant is a consumer with respect to his relationship with the 3rd opposite party. Needless to mention that he is certainly a consumer with respect to other opposite parties, as well. Hence point No.(i) is proved in favour of the complainant.
8) Point No.(ii)
The Ext. C1 Report submitted by the Expert Commissioner unequivocally points out that the WA62H4001HD/TL model washing machine that was delivered to the complainant is one of inferior quality in comparison with the WA62H4000HD/TL model washing machine claimed to be ordered by the complainant. The Expert Commissioner also states that the former model is cheap and bears only plastic drum and does not apply wooble technology and also that the latter model is of superior quality as it applies wobble technology and bears a steel diamond drum. From a close perusal of the Ext. P1 email communication trail between the 3rd opposite party and the complainant, it is seen that the 3rd opposite party has communicated to the complainant that the seller accepted to exchange the product with a different model, which in turn proves that the opposite party delivered a washing machine the model of which differs from the one ordered by the complainant. Had there been no such discrepancy in the delivery, the opposite party will in no case agree to replace the product with another model. Hence it is unambiguously clear that the opposite party has delivered a washing machine the model of which differs from the one ordered by the complainant, which act of the opposite parties undoubtedly constitutes an unfair trade practice and also it causes deficiency in service on their part. From the deliberations supra, it is unequivocally clear that the complainant is a consumer with respect to all the opposite parties. It is also unambiguously clear that the complainant purchased the washing machine in question through online, from the website of the 3rd opposite party, having trusted the services of the 3rd opposite party. The sellers on the e-commerce platform are often not known to the consumers. They derive credibility as they are sellers on the e-commerce platform of the 3rd opposite party. Hence all the opposite parties including the 1st opposite party seller, the 2nd opposite party delivery agent and the 3rd opposite party intermediary e-commerce market place platform have equal responsibility in delivering the right product ordered by the complainant. In the instant case, the opposite parties failed to deliver the right product, which act of the opposite parties is tantamount to unfair trade practice and at the same time constitutes deficiency in service on their part . Also the disclaimer of the 3rd opposite party that “the contract of sale is a bi-partite contract between the buyer and the seller only, and they (3rd opposite party) are not a party to it, amounts to breach of trust and deficiency in service on the part of the 3rd opposite party. Thus there is deficiency in service on the part of the opposite parties.
9) Point (iii) :
The complainant who paid Rs.13,791/- through the online website of the 3rd opposite party for the purchase of Samsung washing machine model No.WA62H4000HD/TL, was delivered with another model of inferior quality. The opposite parties have certainly to refund the purchase cost of the washing machine in question, ie Rs.13,791/- to the complainant. The opposite parties’ act of having delivered a wrong product, inflicted agony, hardship and financial loss on the complainant. The opposite parties have necessarily to compensate the complainant. We are of the considered view that the complainant is entitled to receive from the opposite parties a sum of Rs.10,000/- towards compensation for the agony, hardship and financial loss he underwent and a sum of Rs.10,000/- towards costs.
In the result, the opposite parties are jointly and severally directed to
- refund the invoice price of the washing machine in question i.e. Rs.13,791/- (Rupees Thirteen thousand seven hundred and ninety one only) to the complainant,
- pay the complainant a sum of Rs.10,000/- (Rupees Ten thousand only) as compensation for the agony, hardship and financial loss inflicted on him,
- pay the complainant a sum of Rs.10,000/- (Rupees Ten thousand only) towards cost of litigation,
all with 9% interest p.a. from the date of filing the complaint till the date of realisation.
The opposite parties shall comply with the above order, within 30 days of receipt of a copy of this order.
Once, all the above directions are duly complied, the 1st opposite party within 30 days thereafter, may, at their own cost collect the washing machine in question, back from the complainant, giving the complainant proper acknowledgement.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 31st day of August 2022.
Sd/- Sd/- Sd/-
Sreeja S. Ram Mohan R C. T. Sabu
Member Member President
Appendix
Complainant’s Exhibits :
Ext. P1 copy of the warranty card issued to the complainant.
Ext. P2 copy of Retail Invoice.
Ext. P3 copy of the Logistics Post Booking cum Delivery Challan.
Ext. P4 print out of the email trail between the complainant and the 3rd opposite
party.
Ext. C1 Expert Commissioner’s Report
Id/- Member
