DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.
Complaint Case No : CC/247/2022
Date of Institution : 06.12.2022
Date of Decision : 06.12.2023
Vanshika Garg daughter of Vikas Kumar Garg resident of Hind Road, Tehsil and District Barnala. …Complainant
Versus
1. Consulting Rooms Private Limited, Office No. 1106-1107, 11th Floor, Kailash Building, 26, Kasturba Gandhi Marg, Connaught Place, New Delhi, Central Delhi, Delhi-110001.
2. Jeeves Consumer Services Private Limited, L-169, 13th Cross, 5th Main, Sector-6, HSR Layout, Bangalore, Karnataka-560102.
3. Thomson Washing Machine, Wash Care, email Id: Washcare@thomsontv.in.
4. Flipkart, Flipkart India Private Limited, registered address is Flipkart Internet Private Limited, Buildings Alyssa, Begonia & Clove Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Bengaluru, 560103, Karnataka, India.
…Opposite Parties.
Complaint under Section 35 of Consumer Protection Act, 2019
Present: Ms. Vanshika Garg complainant in person.
Opposite parties No. 1 to 3 exparte.
Sh. Anuj Mohan Adv counsel for opposite party No. 4.
Quorum.-
1. Sh. Jot Naranjan Singh Gill : President
2. Smt. Urmila Kumari : Member
3. Sh. Navdeep Kumar Garg : Member
(ORDER BY URMILA KUMARI MEMBER):
The complainant Ms. Vanshika Garg filed the present complaint under Section 35 of the Consumer Protection Act 2019 against Consulting Rooms Private Limited, Delhi and others. (in short the opposite parties).
2. The facts leading to the present complaint as stated by the complainant are that she purchased a Thomson 8.5 Kg Fully Automatic Front Load with in-built heater white Serial No. TXF603UUK01IN2C7Q0744RD washing machine vide order ID OD124056257078054000 through invoice dated 3.2.2022 for Rs. 23,990/-. The said washing machine sparked while running and stopped abruptly on August 16, 2022. The complainant registered a complaint No. 6710775 on 22 August 2022. After sending many emails they send one mechanic who informed that one part is not working and he will replace that non working part with new one. After that no action was taken. After calling many times and mailing to respective authorities damaged part is not replaced by the new one. They just keep saying that the new part will shortly arrive and they will resolve the complaint of the complainant but no action is taken by the respective authorities. The washing machine is under warranty of two years on product and five years on motor. Hence the present complaint is filed seeking the following reliefs.-
1) The opposite parties may be directed to replace the said washing machine Thomson 8.5 Kg Fully Automatic Front Load with in-built heater white or refund the amount of the said washing machine.
2) To pay Rs. 20,000/- with interest at the rate of 18% PA to the complainant on account of mental torture, agony and inconvenience.
3) Any other fit relief may also be given.
3. The opposite parties No. 1 to 3 preferred to remain exparte.
4. The opposite party No. 4 filed written reply taking preliminary objections that the complainant has suppressed true and material facts from this Commission and present complaint is not maintainable. The answering opposite party provides an online marketplace platform/technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances, electronics etc. 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. Further, the opposite party is by the provisions of Section 79 of the Information Technology Act 2000 vide which an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him. The answering opposite party 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 to the users of the Flipkart Platform. These sellers are separate entities being controlled and managed by different persons. 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 of the online marketplace services provided by the answering opposite party on terms decided by the respective sellers only. In the instant complaint also the actual seller of the product is a third party seller and not the answering opposite party so the request for replacement/refund made by the complainant cannot be fulfilled by the answering opposite party. It is further submitted 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 Flipkart Platform. The answering opposite party neither offers nor provides any assurance and/or offers warranty to the end buyers of the product. Further, there is no privity of contract between the complainant and the answering opposite party. The role of the answering opposite party is as an intermediary only that is to provide online platform to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its Flipkart Platform. The services of the opposite party similar to a shopping mall where various shops are rented out to different sellers who independently carry out sale proceedings with the customers and in case any deficiency in service related to the goods sold by such shop owners in the shopping mall it is the shop owner who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. 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 warranty of the product sold by an independent seller through the Flipkart Platform of the answering opposite party. On the Flipkart Platform it is clearly mentioned that All contractual/commercial terms are offered by and agreed to between the buyer and the seller alone. The contractual/commercial terms include without limitation price, shipping cost, payment method, payment terms, date, period and mode of delivery, warranties related to products and services and after sale services related to products and services. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance or such contractual/ commercial terms between the buyer and the seller. The Department of Industrial policy and promotion, ministry of Commerce and Industry, Government of India vide its Press Note No. 3 in Clause 2.3 clarified that in a marketplace mode of e-commerce any warranty/guarantee of goods and services sold by the responsibility of the seller. It further clarify that seller is responsible for delivery of goods to the customers, customer satisfaction and post sales.
5. On merits, it is submitted that answering opposite party merely an online intermediary so the complainant does not fall under the definition of consumer qua the answering opposite party as defined under the provisions of Consumer Protection Act as the answering opposite party is neither a manufacturer, trader nor a service provider and there does not exist any provity of contract between the complainant and the answering opposite party. Rest of the submissions already submitted by the opposite party No. 4 in the preliminary objections so there is no need to repeat the same. Further, the answering opposite party always assisted its users on each and every occasion whenever they have approached the answering opposite party. But the complainant has never approached the answering opposite party at any point of time. She has only approached the manufacturer for the alleged issue. The present complaint is bad for mis joinder of necessary party as the complainant has wrongly arrayed the answering opposite party in the present complaint. Further, any claims regarding the warranty or guarantee of products are made by a third party sellers or manufacturer and not by the answering opposite party. The complainant is not entitled to get any amount from the answering opposite party. Lastly, the opposite party No. 4 prayed for the dismissal of the present complaint against the answering opposite party with costs.
6. In support of her case the complainant tendered into evidence her own affidavit Ex.C-1, copy of invoice Ex.C-2, copies of emails and replies Ex.C-3 to Ex.C-18, copy of screen shot Ex.C-19, copy of grievance details Ex.C-20 and closed the evidence.
7. To rebut the case of the complainant, the opposite party No. 4 tendered in evidence affidavit of Sanchi Chhabra Ex.OP-4/1, copy of resolution Ex.OP-4/2 and closed the evidence.
8. We have heard the complainant in person and learned counsel for the opposite party No. 4 and have gone through the record on the file. Written arguments also filed by the complainant.
9. The main grievance of the complainant is that the complainant purchased Thomson 8.5 Kg fully automatic front load washing machine with in built heater vide invoice dated 3.2.2022 for Rs. 23,990/-. On August 16, 2022 the said machine sparked while running and stopped abruptly. The complainant registered a complaint on August 22, 2022 with opposite party No. 3. After registration of complaint a mechanic of the company visited the premises of the complainant and informed that one part of the machine is not working and they will replace that non working part with the new one within one week. After that no action was taken. The complainant sent many emails Ex.C-3 to Ex.C-18 to the company continuously for 3/4 months to replace the non working parts but again no action was taken.
10. As per the complainant only after filing of the complaint in DCDRC, Barnala they sent their Engineer to fix the issue. After one month again the machine started giving problems. They again contacted the opposite party No. 3 to fix the issue. But this time they asked Rs. 550/- as visiting charges in advance. The machine is in warranty period. On the invoice Ex.C-2 it is clearly written two years warranty on product and five years on motor. When the machine is within the warranty period then the question of demanding charges does not arise. If the customer has to pay for any defect in the product within the warranty period then what is the use of giving warranty. The manufacturer/seller is responsible for rectifying any defect in the product within the warranty period.
11. The opposite party No. 4 argued that the complainant has never approached the opposite party No. 4 at any given point of time. The complainant approached the manufacturer i.e. Thomson Washing Machine, Wash Care for the alleged issue. The complainant has wrongly arrayed opposite party No. 4 in the present complaint.
12. As a result of the above discussion, the present complaint is partly allowed against the opposite party No. 3 and opposite party No. 3 is directed to repair the washing machine and replace any non working parts with the new, genuine one free of costs without demanding any visiting charges from the complainant. The opposite party No. 3 is further directed to pay Rs. 3,300/- to the complainant as consolidated amount of compensation for mental tension and harassment. Compliance of the order be made within the period of 45 days from the date of the receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
6th Day of December 2023
(Jot Naranjan Singh Gill)
President
(Urmila Kumari)
Member
(Navdeep Kumar Garg)
Member