West Bengal

Bankura

CC/1/2020

Sri Suman Mondal - Complainant(s)

Versus

Flipkart, Registered office Tech Connect Retail Pvt. Ltd. - Opp.Party(s)

Jayanta Kumar Mukhopadhyay

27 Mar 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION BANKURA

  Consumer Complaint No. 01/2020

Date of Filing: 02-01-2020

Before:                                        

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

 

For the Complainant:  Ld Advocate Jayanta Kr Mukhopadhyay

For the O.P.Ld Advocate Sayontan Chowdhury

 

Complainant  

Suman Mondal, S/o Anup Kr. Mondal, at Ranibandh, Bankura- 722 148

 

Opposite Party          

Flipkart, Regd. Office Tech Connect Retail Pvt. Ltd., Unit No.403, Next to Hilton Double Tree Hotel, Golf Course Rd., Gurgaon, Haryana, India- 122 011

 

 FINAL ORDER / JUDGEMENT                    

                                                                                                                                       

Order No.34

Dated:27-03-2023

Both parties file hazira through advocate.

The case is fixed for argument.

After hearing argument/written argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that he booked for purchasing a pair of sport shoes of PUMA brand for Rs.2,234/- on online shopping platform of the O.P. FLIPKART and on 22-11-2019 the same was delivered to the complainant in sealed box packet and after opening the sealed box PUMA brand shoe was not found but instead SPARX brand shoe was received by the complainant and immediately Return request was placed by the complainant to the O.P. but nothing was done by the O.P. either by replacing the delivered item or refunding the price thereof.

Hence this case praying for refund of Rs.2,234/- with interest together with compensation and litigation cost.

                                                                                                                                                                                   Contd…….p/2

Page: 2

The O.P. contested the case by filing a written version on law point only denying the material allegations made in the complaint but contending inter alia that they have no liability under the law to replace the delivered item or refund the price thereof as they are intermediary in terms of Information & Technology Act, 2000 and vide Press Note No.3 (2016 Series) in Clause 2.3 of the Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, Government of India the O.P. has no warranty/guarantee of goods and services sold by the responsibility of the seller in marketplace model of E-Commerce and as such they have prayed for dismissal of the case in limine.

-:Decision with reasons:-

The Commission has gone through the entire facts of the case and documents on record. Admittedly the complainant has an online transaction with the O.P. for purchasing of shoes of PUMA brand but when it was delivered by the O.P. the complainant received the same as shoes of a different brand i.e. SPARX brand. The order placed by the complainant on online with the O.P. will not come within the purview of Information & Technology Act as the delivered item is not an electronic record. Likewise the Press Note issued by the Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, Government of India as referred to above with regard to a marketplace model of E-commerce where warranty/guarantee of goods and services lies with the responsibility of seller only is not applicable to the present case as the O.P. is a service provider within the meaning of definition clause -1(k) of the Consumer Protection (E-commerce) Rules, 2020. The above Government order with regard to a marketplace model of  E-Commerce cannot circumvent and frustrate the provision of Consumer Protection Act.

Under the definition Clause 2 (37) Product seller in relation to a product means a person who in the course of business imports, sales, distributes,  leases, installs, prepares,  packages, labels, markets, repairs, maintains or otherwise is involved in placing such a product for commercial purpose and includes - a manufacturer who is also a product seller or a service provider (Underline is given by the Commission for the purpose of emphasis) and u/s 83 of Consumer Protection Act, 2019 a product liability action may be brought by a complainant against a product service provider among others.

It is therefore clear from the definition Clause of product seller and product liability action defined in Section 83 of the Consumer Protection Act that the O.P. is a service provider and / or distributor in terms of the Consumer Protection Act. The complainant being the Consumer has every right to initiate the instant case against the O.P. for replacement of the wrong delivery of items and / or refund of the price for the pair of shoes booked and ordered with the O.P. on online platform.

                                                                                                                                                                                           Contd….p/3

Page: 3

It is a deficiency in service on the part of the O.P. in terms of Section-2(II) of Consumer Protection Act and it is also a violation of consumer rights in terms of   Clause-2(9) of the said Act.

The Commission is of the firm view that all the stakeholders in the chain of manufacturing point to delivery point of any goods and service will come within the purview of the Consumer Protection Act and the role of modus operandi of O.P./Flipkart is such that there is no exclusionary clause for them under the said Act.

The Commission is therefore of the view and satisfied with the case of the complainant that the complainant is entitled to get an order for replacement of the wrongly delivered item or refund of the price thereof.

Hence it is ordered…….

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

The O.P. is directed to refund Rs.2,234/- to the complainant along with compensation  of Rs.5,000/- in favour of the complainant within one month from this date in default the decretal amount may be realized in due process of law. The O.P. may take return delivery of the shoe in question from the complainant on payment of the decretal amount.

Both parties be supplied copy of this Order free of cost.  

 

      ________________                      ______________                      ______________

  HON’BLE   PRESIDENT           HON’BLE MEMBER         HON’BLE MEMBER