Delhi

East Delhi

CC/232/2018

ROHAN SHUKLA - Complainant(s)

Versus

FLIPKART - Opp.Party(s)

02 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 232/2018

 

	ROHAN SHUKLA 19/226, KALYAN PURI, DELHI - 110091	….Complainant
Versus
	FLIPKART INDIA FLIPKART INTERNET PVT. LTD., VAISHNAVI SUMMIT, GROUND FLOOR, 7TH MAIN, 80 FEET ROAD, 3RD BLOCK, KARAMANGALA INDUSTRIAL LAYOUT, BANGALORE-560034, KARNATAKA	……OP

 

                                                         

 

Date of Institution: 30.07.2018

Judgment Reserved on: 17.04.2023

Judgment Passed on: 03.05.2023

               

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

Order By: Sh. Ravi Kumar (Member)

 

 

 

JUDGMENT

 

The Complainant has alleged deficiency in service on the part of OP in not giving credit of Rs.5,000/- by way of cashback on his online purchase of Apple I-phone 7 on 12.01.2018.    

1. The Complainant has stated in his complaint that on 12.01.2018, he made online purchase of Apple I-phone 7 for Rs.39,399/- on the online platform of the OP and while making the purchase he was given offer of cashback of Rs.5000/- and therefore he was entitled for this amount from the OP.  He also received e-mail dated 15.04.2018 from the OP which stated that he was eligible for the cashback of Rs.5000/- which will be credited to his Credit Card account by 15.04.2018.  However, despite of repeated reminders no such cashback was given to him by the OP and finding no other option he filed the complaint before this Commission on 30.07.2018 praying for compensation of Rs.50,000/- and litigation fee of Rs.7,000/-.  The Complainant has enclosed copy of the invoice dated 12.01.2018 for Rs.39,399/- and copy of e-mail dated 15.04.2018 alongwith other e-mails and the Credit Card statement alongwith his complaint. 
2. The notice was issued to OP and it filed its reply wherein the OP has stated that it is a company engaged in providing trading/selling facility over the internet through its website www.flipkart.com and Mobile application (Mobile App).  It is providing online market  platform/technology and other mechanism/services to the Sellers and Buyers of product to facilitate the transaction, electronic commerce for various goods, by and between respective Buyers and Sellers.  The independent third party sellers use their Flipkart platform to list, advertise and offer to sell their products to the users/ buyers who visit OP’s platform.  Once Buyer accepts the offer of sale of the product made by the third party Sellers on their platform, the Seller is intimated electronically and is required to ensure that the product is made available and delivered in accordance to the delivery terms and as per the Terms of Sale displayed by Seller. OP directly or indirectly does not sell any product on its platform and they are neither ‘Trader’ nor a ‘Service Provider’ and there does not exist any privity of contract between the Complainant and them and they have been wrongly arrayed as OP in the complaint and the complaint is bad for mis-joinder of parties.
3. OP has stated that in their website also it is clearly mentioned ‘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’.
4. The refund of Cashback claimed in the present case is associated with the product or any promotional offer by the concerned Bank i.e. ICICI Bank for its customers who use its Credit Card on EMI purchase option.  The alleged offer was applicable only when the order would have been placed using EMI option on the Bank’s Credit Card.  However, when the Complainant approached the OP he was erroneously informed that the offer was applicable to the particular purchase.  This information was shared by the seller by mistake and the seller offered to treat the case as an exception and bank details of the Complainant were sought to give Cashback however seller did not process the same on time and in the meantime the Complainant filed the complaint before this Consumer Forum.
5. The OP has denied that it gave any assurance as to cashback on the product and the true facts of the case are that the Complainant was not eligible for the cashback as he had not purchased the product through EMI however since OP had sent the mail about his (Complainant) eligibility the seller agreed to provide the cashback but subsequently on account of delay the Complainant took adamant stand and filed the complaint before the Consumer Forum.  The OP has prayed for dismissal of the complaint. 
6. Complainant has filed Rejoinder to the reply of the OP reiterating the contents of his complaint and has alleged that the OP is mis-guiding him and OP has even denied that he is their customer.  As per OP it was ICICI Bank offer then how come it was displayed on their platform.  The Complainant has also stated that company like Flipkart makes false promises and harasses the customers and he is ready to give 80% of the amount to any Govt. NGO but OP Company should not give mental trauma to any customer. 
7. The Complainant has filed his evidence by way of affidavit. He has enclosed documents relied upon him along with his complaint.
8. OP has also filed its affidavit by way of evidence wherein the following documents have been marked as exhibits: 

• Copy of Press Note issued by DIPP as exhibit OPW-I.
• Copy of extract of Terms of Use as exhibit OPW-II. 

9. This Commission has heard the arguments of both sides and perused the records.
10. OP has contended that when the Complainant was making purchase of I-phone on the OP platform i.e. Flipkart, then there was option of cashback on using credit card of ICICI Bank customers. However to avail this offer, the option of EMI was to be availed and on perusal of the invoice dated 12.01.2018 the same is not mentioned that the product was purchased on EMI basis. Further, it is also no where mentioned in the Invoice dated 12.01.2018 that the cost/payment for the product in question was shared between the seller i.e. M/s Shreyash Retails Pvt. Ltd., Village Binola, Gurugaon, Haryana and the OP.
11. The Complainant is heavily relying upon e-mail dated 15.01.2018 received by him from OP, where it was informed to him that he is eligible for cashback of Rs.5,000/- which will be credited in his credit card. OP has stated that it wrote this email on behalf of Seller as Seller wanted to settle the problem. But before looking into this controversy, at the threshold the question which is to be examined is whether the Complainant at all falls under the definition of ‘Consumer’ qua OP as per Consumer Protection Act.
12. The Section 2 of the Consumer Protection Act 1986 defines ‘consumer’ as follows:- 

7) "consumer" means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, or.........

 

7) (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

 

2[Explanation : For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;]   

 

13. The basic ingredient for a person to be a ‘Consumer’ under Consumer Protection Act 1986 is ‘consideration’ which he has paid for purchase of goods or services.  The same is grossly absent in the present case as the Complainant has not filed any document of payment made to the OP directly or indirectly so as to fall within the definition of ‘Consumer’ under the CP Act. Therefore Complainant is not consumer of OP.  
14. The contention of the Complainant that OP vide its e-mail dated 15.04.2018 informed him that he was eligible for cashback of Rs.5000/- is also subject to answer of primary question whether the Complainant falls under the category of ‘Consumer’ under the provisions of CP Act. The answer is ‘No’ to this question for the reasons stated in above para and therefore this issue of e-mail dated 15.04.2018 is not being examined by this Commission and similar would be the fate of other contentions including as to whether upon payment of the iphone through EMI option would have made the Complainant entitled for the Cashback by his Bank which had issued him the Credit Card through which the payment was made. 
15. The Complainant has not made the ‘Seller’ as well as the ‘Bank’ a party in this case which were necessary parties to the case and hence the complaint is not maintainable on account of mis-joinder/non-joinder of parties also.
16. In view of the above, this Commission holds that the Complainant does not fall under the category of ‘Consumer” on account of no proof placed on record with regard to payment made by him to the OP and therefore the complaint is Dismissed as not maintainable. 

1. Copy of this Order be supplied / sent to the parties free of cost as per Rules.
2. File be consigned to Record Room.
3. Announced on 3^rd May 2023.