Order-12.

Date-10/11/2016.

This is an application u/s.12 of the C.P. Act, 1986.

The case of the complainant in short is that O.P.-1 is an Internet/Online Shopping Company/E-Commerce Website selling various types of products to the public at large throughout all over India including the State of West Bengal and O.P.-2 is a Regional Office of O.P.-1. The petitioner had locked in as  a registered member on the Website of the O.P. and searched for Jeans and ordered three nos. Lee Bruce Fitness Men’s Jeans through his e-mail on 07/04/2016 amounting to Rs.276/-.  O.Ps. acknowledged the receipt of the order of the petitioner vide No. 0-D405690892110262000 amounting to Rs.276/- and sent a e-mail saying that it is in processed and the petition can expect the delivery by Saturday 16/04/2016. But after a few days O.P.-1 sent one mail to the complainant informing that O.P.-1 has cancelled the said order and unable to deliver the ordered product to the petitioner because O.P.-1 (Seller) had listed the price incorrectly due to unforeseen error. The petitioner after seeing this e-mail got astonished and suffered from mental agony. The complainant alleges that he suffered a lot of mental and physical and financial loss for illegal negligent act and conduct on the part of the O.Ps. The complainant also alleges deficiency of service against the O.ps. Hence, this case.

O.P.-1 has contested the case in filing W.V.  contending inter alia that the case is not maintainable in fact and in Law and that the complainant has also suppressed material facts and has not approached the Forum with clean hands. It is stated that this O.P. provides online market place / platform / technology over internet through its website

Point for Decision

1. Whether the case is maintainable in C.P. Act?
2. Whether the O.Ps. are deficient in rendering services to the complainant?
3. Whether the O.Ps. are guilty of unfair trade practice?
4. Whether the complainant is entitled to get the reliefs as prayed for?

Decision with Reasons

All the points as above are taken up together for the sake of brevity and convenience of discussion.

We have travelled over the documents on record i.e. copy of e-mail of order by the complainant, the copy of mail of the O.ps. acknowledging the receipt of the order, copy of the e-mail for cancellation of the order and gift card in the Flipkart Wallet of the complainant and other materials on record. The main point urged on behalf of the O.Ps. is that the complainant is not a consumer within the meaning of Section-2(1)(d) of the C. P. Act,1986. It is also alleged that dissatisfaction of the complainant if any was with the vendor / seller who has not been joined as  a necessary party before the Consumer Fora. It is also claimed by the O.Ps. that O.Ps. were mere facilitator of the transaction between the seller and the buyer and cannot be held liable for any deficiency of service. It is also stated that the O.P. is only an intermediary who facilitates the sellers and buyers through its online Portal and once the offer is made by the buyer and it is accepted on payment of consideration by the seller, the role of the intermediary is over.

It appears that although the O.P. did not charge any price from the complainant for mediating between the buyer and the seller, yet it is implied that O.P. which is giving service to the seller to invite the buyers to purchase the goods is ‘service’ as contemplated under the provision of the Consumer Protection Act and the complainant has locus standi to file the complaint against the O.P. It is clearly apparent that the O.P. is engaged in business of providing services through its internet Portal (www.flipkart.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sell and purchase of movable goods. If this is the declared business interest of the O.P. it cannot be permitted to claim that it is providing purely gratuitous service to its customers without any consideration. It is certainly not the case of O.P. that it is a charitable organization involved in e-commerce, with no business returns for itself. We, therefore, reject the contention of the O.P. that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act (Decision of Hon’ble NCDRC in Revision petition No.4656 of 2012 dated 11/04/2013 in between Rediff.com India Ltd. Vs. Ms. Urmil Munjal is relied upon).

The other part of the controversy that the complainant had ordered three nos. of Lee Bruce fit men’s jeans at a price of Rs.276/- is not disputed. It is not also disputed that O.Ps. have cancelled the said order and expressed inability to deliver the ordered product to the complainant because O.P.-1 (Seller) had listed the price incorrectly due to an unforeseen error. We think that the deficiency lies with the O.Ps. as such. We are also constrained to hold that the O.ps. have exhibited a gesture of unfair trade practice in uploading such bargain price / information that three nos. of Lee Bruce fit men’s jeans are available at a price of Rs.276/-.

          In result, the case succeeds.

Hence,

Ordered

That the instant case be and the same is allowed on contest against O.Ps.

O.Ps. are jointly and severally directed to deliver the subject product of three nos. of Lee Bruce Fit Men’s Jeans amounting to Rs.276/- as per order No. 0-D405690892110262000 to the complainant within thirty days from the date of this order apart from litigation cost of Rs.5,000/-.

O.Ps. are also directed to pay an amount of Rs.20,000/- as punitive penalty to this Forum for practicing unfair trade within the said stipulated period. 

Complainant to deposit an amount of Rs.500/- to this Forum in terms of order dated 24/10/2016 passed by this Forum immediately, if not paid meanwhile.

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.