M/S FLIP KART INTERNET (P) LTD & OTHERS. V/S VIKAS JAIN. - Consumer Court Case

Haryana

Panchkula

CC/117/2017

VIKAS JAIN. - Complainant(s)

Versus

M/S FLIP KART INTERNET (P) LTD & OTHERS. - Opp.Party(s)

MR.IPS KANG

29 Jan 2018

ORDER

Before the District Consumer, Dispute Redressal, Forum, Panchkula.

Consumer Complaint No.	:	117 of 2017
Date of Institution;	:	05.06.2017
Date of Decision	:	29.1.2018

Vikas Jain S/o Sh. Adarsh Kumar Jain, aged 44 years, R/o House No.206, Sector 2, Panchkula (Haryana).

…….Complainant

Versus

M/s Flipkart Internet Private Limited, through its Managing Director, having its office at: Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala Industrial Layout, Bangalore 560034 Karnataka, India.

Lokesh Rajpal, Director, M/s Flipkart Internet Private Limited, having its office at Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala Industrial Layout, Bangalore 560034 Karnataka, India.

Sachin Bansal, Director, M/s Flipkart Internet Private Limited, having its office at Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala Industrial Layout, Bangalore 560034 Karnataka, India.

M/s H.S. Distributors, through its Sole Proprietor, Narendra Kumar Jain, Indira Plaza, S-13/14, Opp. Chambal Power House, Hawa Sadak, Civil Lines, Sodala, Bhagat Vatika, Jaipur 302006.

….. Opposite Parties

Complaint under Sec.12 of the Consumer Protection Act, 1986

Before : Mr. Dharam Pal, President.

Mrs. Anita Kapoor, Member.

Mr. Jagmohan Singh, Member.

For the Parties: Mr. Jatin Sherwat, Advocate for complainant.

Mr. Rohit Kumar, Advocate for OPs NO.1 to 3.

OP NO.4 already ex-parte vide order dated 28.8.2017.

Order

(Dharampal president)

1. The complainant has filed this complaint against the Ops with the averments that on the basis of information and advertisements available on e-portal website “Flipkart.com”, on 20.5.2015, the complainant booked one brand new ‘Panasonic Eluga U’ Model Mobile Phone, white color from Flipkart.com being run by M/s Flipkart Internet Private Limited in the sum of Rs. 11,400/-. OPs No.1 to 3 had given an option of payment in cash at the time of delivery and the complainant had opted for the said option for delivery of a new mobile phone. The order had been placed and verified telephonically by the staff of OPs NO.1 to 3 and through email and an order ID had been generated i.e. No.OD102896632004737800. As per the order details, M/s H.S. Distributors-OP NO.4 (wrongly mentioned OP No.3) acting as an agent of OP NO.1 to OP NO.3 was to deliver the said new mobile phone on or before 26.5.2015 through their in house courier and delivery services. The shipping details of the consignment were also forwarded to the complainant through email message as well as vide a text message on mobile phone. It was confirmed that the product shall be delivered by Mr. Rinku Samuel before the committed dated. On 25.5.2015, the said mobile phone had been delivered at the residence and the same was taken by complainant’s wife Mrs. Ritu Jain after making due payment of Rs. 11,400/- to the representative of OP NO.1 i.e. Op No.4. The mobile phone was covered with one outer packing box duly printed with “Flipkart.com” and was sealed with cellophane adhesive tape. The wife of the complainant had asked the representative to open the box and so as to enable her to physically verify the product which was ordered and was being delivered by OP NO.1 through Op No.4, who had told that as per the company policy, the delivery boy is allowed to open the box and to get the product physically verified but in case there is any defect or dissatisfaction regarding the product, the said article can be returned with 48 hours from the time of delivery and the amount shall be refunded through bank account. The delivery was given by the said representative alongwith invoice No.FK01338, dated 21.5.2015 bearing description of product as “Panasonic Eluga U white, 16 GB, IEMI/Sr.No.354023060069733 PANASONIC-ELUGA-U-WHITE” issued by M/s H.S. Distributors-OP NO.4 being ordered through OPs NO.1 to 3. After taking delivery, in the evening the complainant had opened the outer box packing and at the very moment got suspicious seeing the actual box of the mobile phone which was inside the outer box of OP NO.1 to OP NO.3 was packed with ordinary polythene cover so as to give a look as a new sealed box, but not sealed as usually box of a new mobile phone comes in market with sealed packing. The sticker on the back side of mobile box was not there and it is only residue of adhesive which clearly showed that some sticker was removed from the box. The original screen guard, which was usually pasted on new mobile phone was lying without pasting and with marks of fold and fingers usage, which created doubts and apprehension that the mobile phone, delivered by OPs NO.1 to 3 through OP NO.4 was not new, but a used one with repacking. The box contained two different IEMI number stickers sheets containing three stickers each alongwith two warranty cards, one plug-in-charger, one charger USB cable, one ear phone and one quick start guide and the brochure containing complete details of the mobile set was missing in the box. The complainant tried to switch on the mobile phone but the battery was totally discharged and the mobile phone did not start. The battery was completely dead as opposed to other times when a new phone is purchased, the battery is always sufficiently charged to get start the new mobile phone. The complainant had put the mobile phone on charging with the mobile charger provided with said mobile set. When the said mobile phone had been completely charged, the complainant had switched on the handset to check the properties, features, other details and contents etc. and to the utter dismay and shock of the complainant, the said mobile phone was a used mobile phone and already there was media installed in the gallery of the mobile phone which showed the details that the said media had been installed and clicked with the camera on 8/9.4.2015 like pictures of some unknown persons, video songs and also some obscene videos/clips. The details of each and every photograph and video clips and other contents are duly available in the mobile set, as to when the said photographs, video clips and other contents were taken or stored in the said mobile phone. The print outs taken by clicking photographs of the photographs and video clips which are already in the mobile set showing its date and time of loading and taking in said mobile phone. The complainant had filed online complaint on 26.5.2015 through email on the website of the OPs No.1 to 4 and provided the specific details regarding delivery of used mobile hand and the confirmation regarding receipt of complaint was acknowledged by OPs NO.1 to 3 through email as well as text message on mobile phone. It was assured by the OPs NO.1 to 3 that its product specialist would call you and complainant received telephone calls from different numbers regarding mobile in question on different dates i.e. 27.5.2015, 28.5.2015 and 29.5.2015 from OP NO.1, but no response was given by the OPs NO.1 to 4 till 29.5.2015. The complainant had filed the complaint with Deputy Commissioner of Police, Panchkula and other authorities through email as well as through registered/speed post on 29.5.2015. The police authorities had recorded the statement. The said mobile set delivered on 26.5.2015, manufactured in July, 2014, which proved that OPs NO.1 to 4 had supplied mobile set was manufactured about a year back whereas OP No.1 to 3 had booked the mobile in May, 2015 and had to supply latest mobile set on the said date probably manufactured in April, 2015. So, the OPs NO.1 to 4 had provided old model of the mobile set, which was never purchased by the complainant. On 30.5.2015, the complainant had received a message and email that the request of the complainant regarding return of mobile phone had been disapproved by the OP NO.1 and the alternate return request for item had been created. On 5.6.2015 the request regarding refund had also been disapproved by OP NO.1. Thereafter, OPs No.1 to 4 did not pay any heed to complainant. This act and conduct of the OPs amount to deficiency in service on their part. Hence, this complaint.

2. Upon notice, OPs NO.1 to 3 appeared and contested the complaint by filing written statement by taking preliminary objections that the complainant has suppressed true and material facts from this Forum; the complainant is not maintainable. It is submitted that the OP No.1 provides online marketplace platform/technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc.

It is submitted that the business of the Op No.1 falls within the definition of an “intermediary” under Section 2(1)(w) of the Information Technology Act, 2000 which is as under:-

“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…

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.
The provisions of sub-section (1) shall apply if-

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
the intermediary does not-

initiate the transmission,

(ii) select the receiver of the transmission, and

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

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 complainant had wrongly arrayed OPs NO.1 to 3 in the present complaint hence the complaint is bad for mis-joinder of necessary party. The OPs submitted that role/involvement of OPs is as an intermediary only i.e. to provide online platform to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its Flipkart platform. The services of the OPs are similar to a shopping mall where various shops are rented out to different sellers, who independently carryout sale proceedings with the customer/visitors of the shopping mall and in case of any defect in the goods sold by such shop owners/sellers in the shopping mall, it is the shop owner/ seller, who is held liable for consequences and not the owner of the shopping mall where such shops are situated. The OPs are not involved in the entire transaction except for providing the online platform for the transaction(s) and the concerned contract(s) of sale and purchase is between the seller and the buyer (here complainant) only. 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 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.

3. It is submitted that the grievance of the complainant is with respect to the alleged delivery of old mobile set and the delivery of the product is directly done by the seller of the product to the buyer through their authorized partner, the only role of the OP is to provide information to the seller that the buyer has placed the order of the such and such product and that should be delivered to the buyer as per the terms and conditions mentioned on the portal. The information to the buyer is also provided electronically to the seller. Therefore, delivering of wrong product is directed linked with the seller i.e. OP NO.4. The OPs are not owned/controlled/associated with OP NO.4 in the present complaint. It is denied that the OP No.4 is the agent of OPs. Thus, there is no deficiency in service on the part of OPs No.1to 3 and prayed for dismissal of the complaint with costs.

4. Notice was issued to the OP No.4 through registered post, but none has appeared on behalf of the OP No. 4. It is deemed to be served and the OP No.4 was proceeded ex-parte vide order dated 28.8.2017.

5. The counsel for the complainant has tendered affidavit as Annexures C-A and C-B along with documents Annexure C-1 to C-14 and thereafter closed the evidence. On the other hand, counsel for the OPs No.1 to 3 tendered into evidence by way of affidavit Annexure R1/A along with documents Annexure R/1 and closed the evidence.

6. We have heard learned counsel for the complainant and learned counsel for the OPs NO.1 to 3 and have gone through the record carefully and minutely.

7. Admittedly, the complainant purchased a mobile phone online Model Panasonic Eluga U white colour for an amount of Rs.11,400/- from Op No.1 (Annexure C-1) on 20.05.2015 on cash on delivery basis. The grievance of the complainant is that the delivered mobile phone was a used one with repacking. The box contained two different IEMI number stickers sheets containing three stickers each alongwith two warranty cards, one plug-in-charger, one charger USB cable, one ear phone and one quick start guide and the brochure containing complete details of the mobile set was missing in the box. The battery of the phone was also totally discharged, therefore, the mobile phone did not start whereas the battery was always sufficiently charged to get start the new mobile phone. After charging the mobile phone, the complainant checked the mobile phone and there were pictures of unknown person, video songs and also some obscene videos/clips. The complainant complained through email on 26.05.2015 on the website of Ops No.1 to 4. Even the complainant also received telephone calls from different numbers regarding mobile in question. The complainant also registered a complaint with Deputy Commissioner of Police, Panchkula. The mobile phone was also manufactured a year back which is a clear deficiency on the part of the Ops. Learned counsel for the OP No.1 raised another plea that 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 from the Annexure C-9 that used mobile phone 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.

8. 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:-