State Consumer Disputes Redressal Commission
Flipkart Internet Pvt. Ltd. vs Sh. Dinesh Kumar. on 16 July, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 297/2017
Date of Presentation: 25.11.2017
Order Reserved on : 02.05.2018
Date of Order : 16.07.2018
......
Flipkart Internet Private Limited Registered Office at Vaishnavi
Summit Ground Floor 7th Main 3rd Block 80 Feet Road
Koramangala Bangalore-560034 Karnataka India.
...... Appellant/Opposite Party
Versus
Dinesh Kumar son of Shri Bhagwan Dass Sharma Room No.402
Yojna Bhawan H.P. Secretariat Shimla-171 002 H.P.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Vivek Negi Advocate.
For Respondent : In person.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 17.10.2017 passed by Learned District Forum in consumer complaint No.118/2015 titled Dinesh Kumar Versus Flipkart Internet Private Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) Brief facts of consumer complaint:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant purchased Xiaomi M13 mobile phone from opposite party in consideration amount of Rs.13999/-
(Thirteen thousand nine hundred ninety nine) on dated 19.08.2014 through Shri Anup Saklani. It is pleaded that phone worked properly till 27.04.2015. It is pleaded that complainant was on tour to Mumbai w.e.f 25.04.2015 to 04.05.2015 and when complainant reached at Mumbai on 25.04.2015 by flight from Chandigarh there was crack on the screen of the phone. It is pleaded that phone was also not responding. It is further pleaded that complainant contacted Prodcon Tech Service Pvt. Ltd. shop No.3 Radhika Niwas Andheri Kurla Rd.Andheri East Mumbai Maharashtra and person at reception informed complainant that it would take 10 to 15 days for the repair of phone and an amount of Rs.6600/-(Six thousand six hundred) also demanded from the complainant. It is pleaded that thereafter complainant dropped the matter and decided to take up the matter with Xiaomi Shimla Service Centre and person at Shimla informed the complainant to pay Rs.6600/-(Six thousand six hundred) as there was crack on the screen. It is further pleaded that complainant told the official that product was under warranty period. It is pleaded that opposite party did not replace the 2 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) damaged phone screen free of costs and committed deficiency in service. Complainant sought relief of replacement of damaged mobile phone free of costs. In addition complainant sought relief of payment of compensation w.e.f. 05.05.2015 @ Rs.1000/-(One thousand) per day. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant has suppressed the true and material facts from learned District Forum. It is pleaded that Flipkart Internet Pvt. Ltd. is protected by the provisions of section 79 of Information Technology Act 2000. It is pleaded that complainant does not fall within the category of consumer. It is pleaded that there is no privity of contract between complainant and Flipkart Internet Pvt. Ltd. It is pleaded that complainant has not impleaded manufacturer as co-party. It is further pleaded that roll of Flipkart Internet Pvt. Ltd. is intermediary in nature. It is pleaded that Flipkart Internet Pvt. Ltd. is not the seller or authorized service centre of manufacturer. It is pleaded that roll of Flipkart Internet Pvt. Ltd. is only limited to provide online platform to facilitate the transaction between seller and purchaser. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. On 26.12.2016 learned District Forum ordered the opposite party to replace 3 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) the screen of mobile free of costs within forty five days. In addition learned District Forum ordered opposite party to pay a sum of Rs.10000/-(Ten thousand) as damages on account of harassment, inconvenience and mental agony. In addition learned District Forum ordered opposite party to pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand).
5. Thereafter appeal No.109/2017 was filed by Flipkart Internet Pvt. Ltd. and appeal was disposed of on dated 25.08.2017 by State Commission and State Commission set aside the order of learned District Forum and remanded back consumer complaint to learned District Forum with the order that learned District Forum would obtain evidence of complainant by way of affidavit relating to controversial facts. Thereafter learned District Forum would give opportunity to opposite party to adduce rebuttal evidence and thereafter learned District Forum will dispose of consumer complaint strictly in accordance with law. Thereafter again learned District Forum again disposed of consumer complaint on dated 17.10.2017 and ordered opposite party to replace the screen of phone in question free of costs within forty five days. In addition learned District Forum also ordered opposite party to pay Rs.20000/-(Twenty thousand) to complainant as damages on account of harassment, inconvenience and mental agony alongwith litigation costs to the tune of Rs.5000/-(Five thousand). 4
Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) Feeling aggrieved against order passed by Learned District Forum Flipkart Internet Pvt. Ltd. filed present appeal before State Commission.
6. We have heard learned advocate appearing on behalf of appellant and respondent in person. We have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant has filed affidavit in support of complaint and there is recital in affidavit that contents of complaint are true to the personal knowledge and belief of deponent and no part of it is false and nothing has been concealed therein.
9. Complainant also filed affidavit of Shri Anup Saklani in evidence. There is recital in affidavit that deponent has purchased smart phone M13 from Xiaomi Company through Flipkart Internet Pvt. Ltd. against order No.OD40819047932 for complainant. There is recital in affidavit that all the expenses were borne by Shri Dinesh Kumar complainant for purchasing the mobile phone from 5 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) Flipkart Internet Pvt. Ltd. We have perused entire annexures filed by complainant carefully.
10. Opposite party filed affidavit of Shri Amit Pratap Singh in evidence. There is recital in affidavit that complainant has suppressed the material facts from learned District Forum. There is recital in affidavit that business of opposite party falls within the definition of intermediary under section 2(1)(W) of Information Technology Act 2000 and opposite party is protected under section 79 of Act. There is further recital in affidavit that there was no privity of contract between complainant and opposite party. There is recital in affidavit that opposite party has only provided online platform to complainant and seller. There is recital in affidavit that it is the duty of manufacturer or his authorized service centre to provide after sale service to the consumer.
11. Opposite party also filed affidavit of Shri Satyajit Bhatacharya in evidence. There is recital in affidavit that roll of opposite party is of intermediary only i.e. To provide online platform to facilitate transaction of sale and purchase of goods by seller and buyers on its website. State Commission has also perused all annexures filed by opposite party carefully.
12. Submission of learned Advocate appearing on behalf of appellant that appellant is intermediary only and is protected under section 79 of Information Technology Act 6 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) 2000 and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that relief under Consumer Protection Act 1986 is additional relief in derogation of other law for time being in force. It is held that in view of section 3 of Consumer Protection Act 1986 consumer complaint is not barred. See 2005(IV) CPJ 51 NC Juliet V. Quadros Versus Mrs. Malti Kumar & Ors. See 2008(1) CPJ 404 NC Associated Road Carriers Ltd. Versus Kamlender Kashyap & Ors.
13. Submission of learned Advocate appearing on behalf of appellant that there was no privity of contract between complainant and opposite party and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused annexure-A placed on record. As per annexure-A Flipkart Internet Pvt. Ltd. has received the consideration amount to the tune of Rs.13999/-(Thirteen thousand nine hundred ninety nine) directly and took the order of mobile phone M13 Metallic grey. Shri Anup Saklani has filed affidavit placed on record that he had purchased mobile phone for the user of Dinesh Kumar complainant. As per section 2(d)(i) of Consumer Protection Act 1986 consumer would include user of goods other than the person who buys the goods. In view of the fact that complainant is user of mobile phone it is held that complainant falls within the 7 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) definition of consumer as defined under section 2(d)(i) of Consumer Protection Act 1986.
14. Submission of learned Advocate appearing on behalf of appellant that appellant had provided only online platform through website and is only intermediary and on this ground appeal be allowed is decided accordingly. It is proved on record that mobile phone is manufactured by China based company Xiaomi and it is also proved on record that mobile phone has been imported by opposite party and it is also proved on record that consideration amount was directly received by opposite party from Shri Anup Saklani for sale of mobile phone. In view of the fact that manufacturer of company is situated in China and in view of the fact that mobile phone has been imported by opposite party directly and in view of the fact that opposite party has received consideration amount from the friend of complainant directly for usage of complainant it is held that opposite party could not be exonerated from the liability.
15. Submission of learned Advocate appearing on behalf of appellant that learned District Forum has ordered excessive amount to the tune of Rs.20000/-(Twenty thousand) in favour of complainant and against opposite party on account of damages for mental agony and on this ground appeal be allowed is decided accordingly. It is proved on record that complainant was dragged twice before State 8 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) Commission by opposite party State Commission is of the opinion that learned District Forum has ordered reasonable compensation to complainant for mental agony and harassment. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the compensation amount ordered by learned District Forum relating to mental agony and inconvenience.
16. Submission of learned Advocate appearing on behalf of appellant that learned District Forum has granted excessive litigation costs to complainant and on this ground appeal be allowed is decided accordingly. It is proved on record that complainant has to file consumer complaint before learned District Forum and complainant has contested complainant before learned District Forum and thereafter complainant has also contested consumer complaint before State Commission. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order passed by learned District Forum relating to litigation costs.
17. Submission of respondent in person that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly.
State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to 9 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.297/2017) interfere in the order passed by learned District Forum because defect occurred in mobile phone during the warranty period and opposite party is under legal obligation to replace defective parts free of costs during warranty period. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
18. In view of findings upon point No.1 above appeal is dismissed. Order passed by learned District Forum in consumer complaint No.118/2015 dated 17.10.2017 is affirmed. Annexure-A dated 19.08.2014 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 16.07.2018 KD* 10