BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE URBAN

    5^th DAY OF AUGUST 2021

ORDER

SRI.S.L.PATIL, PRESIDENT

The Complainant has filed this complaint seeking direction against the Opposite Party (herein after called as OP) to direct the OP to refund entire amount of Rs.10,270/- paid on 10^th March, 2020 along with 18% interest p.a. from the date of payment till resolution, to pay compensation as deemed fit for mental harassment etc.,                                            

2. The brief facts of the complaint are as under:

The complainant placed an order for a Redmi Note 5 Pro (Gold, 64 GB( mobile on 10^th March 2020 with OP by making payment of Rs.10,270/- through mobile No.9902515103 with delivery address: Satheesh Robinson, Flat No.C-303, Emmanuel Cluster, Emmanuel Street, Bengaluru-560100. As per communication dated 10.03.2020, complainant has received mail from OP, wherein OP has confirmed the receipt of payment and allotted order ID No.118065841867558000 and goods will delivery by Sunday, March 15, 2020. Complainant submits that on 13.03.2020 he received a mail from OP stating that the ordered goods have been delivered and updates whereof has been sent to mobile No.8521607478.  Then complainant immediately contacted OP and informed about non-receipt of goods at the registered address at Bengaluru and that mobile No.8521607478 does not pertain to him and not a registered one and that some fraudulent action took place at OP in connivance with its staff.  As per the true caller identification, that number appears from Flipkart Hyderabad.  It is pertinent to mention that his address registered for delivery of item as given above and had never changed the address for delivery. 

The complainant submits that company itself says that address can only be changed by receiving the request from the registered mobile only, which in this case was purposely overlooked by OP with a view to perpetrate the fraud.  That on 18.03.2020 the complainant received a communication from Customer Support of OP stating that his grievance is being escalated to their escalation team and will take complete ownership of the case and solve with best possible resolution.  In this regard, complainant has against sent mail dated 18.03.2020 stating that it is a clear case of identity theft as the address of delivery of item in the prepaid order was altered in his account relating to order ID 118065841867558000 by accepting the request for change of address from mobile No.8521607478 which is neither a registered nor possessed by me.  So this is a clear case of fraudulent action on the part of officials of OP itself committed with a view to favour some of their vested interest.  That confronted with the fraudulent and deceitful action took place at OP in deliver of goods at its correct and registered address.

Again complainant on 26.03.2020 raised a request as a registered and prepaid customer to return back the goods to the company so as to get back the payment made by him on non-receipt or non supply of goods.  Complainant further submits that OP has failed to deliver the goods to the legitimate and registered owner at its correct and ordered address and modus operandi adopted by their officials in committing the fraud. Further complainant submits that non-supply of handset for more than three months despite making payment has put him to great hardship, inconvenience and mental harassment.  Hence, this complaint..  

3. After issuance of notice, OP did appear through their counsel and filed version.  OP has submitted that complainant has suppressed the true and material facts and trying to mislead this Commission.  Hence, the present complaint is not maintainable and liable to be dismissed.  Further OP submits that it is company registered under the provisions of Companies Act, 1956.  The company is engaged among others in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (mobile app) (hereinafter collectively referred as Flipkart platform).  The OP provide online marketplace platform/technology or other mechanism to the sellers and buyers of products to facilitate the transactions, etc., by and between respective buyers and sellers and deal in various categories of goods including but not limited to mobiles, camera, computers, etc.,

Further OP submits that Flipkart platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers.  OP submits that 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 and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart platform. It is further submits that business of Op falls within the definition of an Intermediary under Section 2(1)(w) of Information Technology Act, 2000.  Further submits that OP is protected by the provisions of Section 79 of the Information Technology Act, 2000. OP further submits that Ms.Sheetal Tiwari, Authorized Signatory of company is authorized to sign and verify the reply/written statement, vakalatnama etc., and appoint advocate on behalf of OP vide resolution dated 02.08.2018.

OP submits that the sellers are separate entity being controlled and managed by different persons/stakeholders for which OP does not directly or indirectly sells any products on Flipkart Platform, all the products on Flipkart platform are sold by third party sellers, who avail of the online marketplace services provided by OP.  The OP neither offered nor provides any assurance or offers return, replacement or refund to the end buyers of the product.  OP submits that as per C.P.,Act, OP is not a Trader nor a Service provider and there does not exists any privity of contract between the complainant and OP, complainant has wrongly arrayed OP in the present complaint and hence, complaint is bad for misjoinder of party.  Further submits that complaint is totally false, frivolous and vexatious and has been filed with malafide intention of causing harassment.  It is pertinent to mention that Department of Industry, Government of India vide its Press Note No.3(2016 Series) in Clause 2.3(viii) has clarified that in a marketplace model of e-commerce (such as Flipkart.com, any warranty/guarantee of goods and services sold by responsibility of the seller. Further OP submits that complainant is cooking all crooked stories based on whims and fancies.  Further OP submits that conducted its own internal investigation into the complainant’s account, it was found that complainant placed order for product on 10^th March, 2020 but the order was not confirmed and later on the order was confirmed to complainant.  On the same day a request made complainant for change of address from his registered mobile number and the same was approved by the OP, the same was updated on his Flipkart account but at that time no action was taken by complainant. Therefore, it is not possible to change the delivery address without the permission of the registered customer through his/her registered mobile number.  Hence, there is no cause of action against the OP. 

Further OP submits that it is an intermediary only, it is only provide online platform to facilitate the whole transaction of sale and purchase of goods.  The services of OP are similar to a shopping mall.  Hence, OP shall not be held liable for any liability owing to such contract.  Further OP submits that user(s) of Flipkart platform are bound by terms of use enumerated which clearly state that the contract of sale is a bipartite contract between the buyer and the seller only and OP is not a party to it (extract of the terms of use is enclosed).  There is no privity of contract between the complainant and OP.  OP further submits that transaction is a matter of record, however it is denied that any order was made to it rather it is submitted that order was placed with the independent seller “through” OP.  It is further submits that any kind of assurance, whether in terms of warranty on the products, price, discounts, promotional offers, delivery, after sale services or otherwise are offered and provided by manufacturer and the same cannot be construed to mean any liability on the part of OP.  Further OP submits that the averments made in para No.3 and 4 of the complaint is false and frivolous.  The OP has provided all assistance to the complainant. Therefore, there is no deficiency in service on its part and by no stretch of imagination, it can be said that OP is involved in any fraudulent practice. 

Further OP submits that after receiving the grievance of the complainant, it conducted an investigation and it was found that the request for address change was made by complainant himself from his registered mobile number and the same was approved by it.  As per terms and conditions, the address can only be changed by receiving the request from the registered mobile only.  Moreover if it is the case of identity theft then the burden of proof is on the complainant and such issues can be addressed by proper law authorities and not the OP, it is duty of complainant to safeguard his credentials.  Therefore, all the allegations made by the complainant are denied.  Further OP submits that complainant has failed to show any cause of action against OP, neither the modus operandi of the Op has been illegal nor the conduct of any of its officials.  Hence, OP has prayed for dismissal of complaint with exemplary costs.    

4. The complainant has filed rejoinder to the preliminary objections filed by OP and has tendered his evidence by way of affidavit and also produced documents in support of his case which are marked as Ex.A.1 to Ex.A.6.  The OP has also filed affidavit evidence along with documents which are marked as Ex.B.1 and B.2.  Both complainant and OP have filed their written arguments. Heard learned counsels for both sides.

5. The points that arise for our consideration are:

1.  Whether the complaint filed by the complainant is maintainable?
2. Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?
3. What order?

6. Our answers to the above points are as under:

          Point No.1:  In the negative.

Point No.2:  Does not survive for out consideration.

           Point No.3:  As per final orders

REASONS

7. Point No.1:  This instant complaint has filed by the complainant on 25.06.2020 but in the complaint he has not specifically stated under which provision he has filed the complaint.  The new C.P.Act, 2019 come into force w.e.f. dated 20.07.2020 and 24.07.2020.  Hence, it is presumed this complaint has been filed under the old C.P.Act, 1986.  With regard to the maintainability of this complaint before this Commission is concerned, we place the reliance under Section 79 of the Information Technology Act, 2020 exempting from the liability.  The said exemption is reads thus:-

Under Section 79:- “Exemption from liability of intermediary in certain cases – (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hasted by him.

(2) The provisions of sub-section (1) shall apply if – (a) 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 hasted or

(b) the intermediary does not –

(i) initiate the transmission.

(ii) select the receiver of the transmission and

(iii) select or modify the information contained in the transmission

(c) the intermediary, observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

(3) The provisions of sub-section (1) shall not apply –

(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;

(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.”

8. If the above provision is strictly construed, OP is the intermediary exempted from its liability.  It is only provide online platform to facilitate the whole transaction of sale and purchase of goods.  The services of OP are similar to a shopping mall.  Hence, OP shall not be held liable for any liability owing to such contract.  Further user(s) of Flipkart platform are bound by terms of use enumerated which clearly state that the contract of sale is a bipartite contract between the buyer and the seller only and OP is not a party to it.  Further there is no privity of contract between the complainant and OP.  Hence, we come to conclusion that OP is exempted from its liability. Under such circumstances, this complaint is not maintainable.  The complainant to take proper steps in accordance with law.  Accordingly, this complaint is liable to be dismissed.  Hence, point no.1 answered in the negative.
9. Point No.2:- In view of our finding on point No.1, this issue is not survive for our consideration.
10. Point No.3:- In the result, we pass the following order;

  O R D E R

1. The complaint filed by complainant is dismissed as not maintainable.
2. The complainant is at liberty to get redress his remedy in accordance with law.
3. Parties to bear their own costs.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 5^th day of August, 2021)

Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.6:-

Documents produced by OP which are marked as Ex.B.1 and B.2:-