Haryana

Panchkula

CC/203/2015

PUSHPENDRA SHARMA. - Complainant(s)

Versus

FLIPKART. - Opp.Party(s)

COMPLAINANT IN PERSON.

13 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                        

Pushpendra Sharma s/o Sh.Ramakant Sharma, R/o H.No.876, First Floor, Sector-17, Panchkula, Haryana-134108.

                                                                        ….Complainant

Versus

1. Flipkart, 447/B, 1^stA Cross, 12^th Main, 4^th Block, Opposite BSNL Telephone Exchange, Koramangala, Bangalore, Karnataka-560034.
2. United Retail, Gala No.19, Quddus Compound, Opp M.K. Industrial Estate, Jari Mari, Mumbai-400072.

                                                           ….Opposite Parties

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:              Mr.Dharam Pal, President.

            Mrs.Anita Kapoor, Member.

            Mr.S.P.Attri, Member.

For the Parties:   Complainant in person.

            Mr.Vishal Madaan, Adv., for the Op No.1.

            Op No.2 already ex-parte.

ORDER

(Dharam Pal, President)

1. Pushpendra Sharma-complainant has filed this complaint against the Ops with the averments that he purchased online a Sony Ericsson MW-1 Smart Wireless Headset for an amount of Rs.4549/- from Op No.1 on 04.07.2015 (Annexure C-1). The complainant received the product on 10.07.2015 and made the payment through his credit card on 04.07.2015. After passing of seven days, some defect occurred in the headset. As per Ops’ purchase policy, if any product came up with defect within 10 days of shopping would be exchanged free of costs. The complainant sent an email to Ops on 17.07.2015 regarding the defect and requested to exchange the same. On the same day i.e. 17.07.2015, the complainant received a mail with the assurance of product replacement by 28.07.2015. The Ops claimed that they would send the replacement of item on 22.07.2015 which supposed to be delivered by 28.07.2015 (Annexure C-5). Thereafter, the OP mentioned in the mail that the replacement shipped to the complainant had got damaged in transit in mid way, so they were sending the item again. The Ops kept on saying that they were sending the replacement soon but the complainant did not receive any replacement till the filing of the complaint. This act and conduct on the part of the Ops amounts to deficiency in service. Hence, this complaint.
2. The Op No.1 appeared and filed written statement by taking some preliminary objections and submitted that the OP No.1 is a company duly registered under the provision of Companies Act, 1956. It is submitted that the company is engaged in providing trading/selling facility over the internet through its website

“intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.”

It is submitted that the Op No.1 is protected by the provisions of Section 79 of the Information Technology Act, 2000, which is reproduced as under:-

“79…

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 hosted by him.
2. The provisions of sub-section (1) shall apply if-

1. the functions 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 hosted; or
2. the intermediary does not-

1. initiate the transmission,

(ii)    select the receiver of the transmission, and

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

3. 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.

It is submitted that there is no privity of contract between the complainant and Op No.1. It is submitted that the Op No.1 provided online platform to different registered sellers where the registered sellers advertise their products with specification and sell goods and the visitors/buyers of the website, voluntarily enter into transaction of purchase of various goods from those sellers at their own choice. It is submitted that the user of the website/buyer of goods are bound by the Terms of Use enumerated on the website. It is submitted that on the website i.e. 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 of such contractual/commercial terms between the buyer and the seller. It is submitted that the product could not get to the complainant so the Op No.1 was not responsible for the same. It is submitted that the complainant had purchased the product from the web-portal of Flipkart.com and the same was sold by the OP No.2, therefore, it is a contract between the seller i.e. OP No.2 and the buyer i.e. the complainant. It is submitted that the Op No.1 is not the manufacturer of the product. It is submitted that the complainant should approach the manufacturer or the authorized service center of the manufacturer for resolution for any defect. It is submitted that the Op No.1 did not provide any guarantee or warranty on the products. It is denied that vide email dated 17.07.2015, the OP No.1 gave any assurance of replacement of the product by 28.07.2015. It is denied that the Op No.1 vide email mentioned that the replacement shipped to the complainant had got damaged in transit in midway so they were sending the item again. Thus, there is no deficiency in service on the part of Op No.1 and prayed for dismissal of the complaint with costs.

3. Notice was issued to the Op No.2 through registered post but none has appeared on behalf of the Op No.2. It is deemed to be served. Hence, the Op No.2 was proceeded against ex-parte vide order dated 03.11.2015.
4. The authorized representative for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-7 and closed the evidence. On the other hand, counsel for the Op No.1 has tendered the evidence by way of affidavit Annexure R1/A and closed the evidence.
5. We have heard the complainant appearing in person and learned counsel for the OP No.1 and have also perused the record carefully and minutely.
6. Admittedly, the complainant had placed an order with OP No.1 on 04.07.2015 vide ID No. OD103287960133901100 which was received on 10.07.2015 to the complainant. After passing of seven days, some defects occurred in the headset. The complainant in his complaint mentioned that as per Ops’ policy, if any product came up with defect within 10 days of shopping would be exchanged free of costs. Therefore, on 17.07.2015, the complainant sent an email to the Op No.1 for replacement of the product which was accepted by the OP No.1 (Annexure C-2). Thereafter, the Op No.1 vide email dated 21.07.2015 (Annexure C-4) informed the complainant that the order OD10328796013393100 have been packed by the seller and ready to be shipped but the same has not been received to the complainant. The grievance of the complainant is that till the filing of complaint, he has not received the product. The act and conduct of the OP No.1 clearly shows that in this way or that way it wants to harass the consumer to avoid the payment made by the complainant.  Learned counsel for the OP No.1 raised another plea that it never comes in possession of the product, therefore no privity of contract has arisen with the complainant as it only provides online market place/ platform/ technology and other mechanism/services to the sellers and buyers of products to facilitate the transactions etc. This plea itself is sufficient to prove that the OP No.1 company is engaged in the business of providing services through its internet portal to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of moveable goods. If this is the declared business interest of OP No.1, 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 OP No.1 that it is a charitable organization involved in ecommerce with no business returns for itself, therefore, the plea raised by OP No.1 is distinguished being devoid of any merit. On this point reliance can be taken from case law titled as Rediff.com India Limited 1^st Floor, Mahalaxmi Engineering Estate L.J.Road No.1 Mahim (W) Vs. Ms.Urmil Munjal c/o Gurgaon Gramin Bank decided on 10.07.2015 by the Hon’ble National Commission in Revision Petition No.4656 of 2012.  It is worthwhile to mention here that now-a-days online shopping is spreading everywhere because it is time and money saving but the responsibilities of the companies cannot be over after selling of the product as it is the bounded duty of the companies to satisfy their customers because it does not give any liberty to usurp the money of the consumers either by sending wrong items or defective product. In the present case, it is very well established that wrong item was sent by the seller, therefore, the complainant has a right to seek refund of the price. Such like behaviour and practice is not expected from a company which is selling its product through online. In other words, we can say that this act and conduct of the company falls under unfair trade practice and deficiency in service as defined in Sections 2 (f) and 2 (g) of The Consumer Protection Act, 1986 because it sells or sends the wrong item than the purchased item product even after charging full amount of the product.
7. In view of the above discussion, we are of the view that the present complaint deserves to be allowed and the same is accordingly allowed. The Ops are jointly and severely directed as under:-

1. To pay an amount of Rs.4549/- the cost of wireless headset received from the complainant.

2. To pay an amount of Rs.5000/- as compensation for mental agony and harassment etc.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy failing which the Ops shall pay the amount at serial No.1 above with the interest @ 12% per annum form the date of depositing of the amount by the complainant till realization. A copy of this order be supplied to the parties free of costs.  File be consigned to records after due compliance.

Announced

13.01.2016       S.P.ATTRI          ANITA KAPOOR             DHARAM PAL

                       MEMBER            MEMBER                      PRESIDENT

Note: Each and every page of this order has been duly signed by me.

                                            DHARAM PAL 

                                            PRESIDENT