State Consumer Disputes Redressal Commission
Flipkart Internet Private Limited vs Arish Juneja on 22 February, 2022
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.321 of 2019
Date of Institution : 29.05.2019
Date of Reserve : 19.01.2022
Date of Decision : 22.02.2022
Flipkart Internet Private Limited, Ozone Manay Tech Park, #56/18
& 55/09, 7th Floor, Garvebhavipalaya, Hosur Road, Bangalore-
560068 Karnataka through its Managing Director/Director/
Authorized Signatory (Flipkart Internet Private Limited Vaishnav
Sunit No.6/B, 7th Manj, 80 feet road, 3rd Block, Kovaangala,
Bangalore -560074)
....Appellant/opposite party No.1
Versus
1. Arish Juneja aged about 22 years son of Sh.Rajwinder
Kumar, Resident of House No.143, Gali Nand Lal Dhamija
Wali, Ward No.4, Malout, District Sri Muktsar Sahib, Mobile
No.96465-73219.
......respondent/complainant
2. Shiva Traders, Gali No.2, Ramata Pura Sewa Nagar Gwalior,
M.P., Gwalior-474003 through Owner/Managing Director/
Authorized Signatory.
.......Respondent/Opposite Party No.2
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 26.03.2019 of the District
Consumer Disputes Redressal Forum (now
Commission), Sri Muktsar Sahib.
First Appeal No 321 of 2019 2
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs.Kiran Sibal, Member Present:-
For the appellant : Sh.Rohit Kumar, Advocate
For respondent No.1 : None
For respondent No.2 : Ex-parte
RAJINDER KUMAR GOYAL, PRESIDING MEMBER
The instant appeal has been filed by the appellant/opposite party No.1 against the order dated 26.03.2019 passed by District Consumer Disputes Redressal Commission, Sri Muktsar Sahib, whereby the complaint filed by the complainant was allowed and opposite parties were directed to deliver the complete products to the complainant, vide order ID No.OD110447959614958000 dated 10.10.2017. The opposite parties were also directed to pay Rs.5,000/- as compensation for harassment along with Rs.3,000/- as litigation expenses.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
2. Brief facts, as averred in the complaint are that the complainant purchased the following products online namely:
Matrix Opticare Hair SPA and Biolage Serum Pack of 2 with Lakme Eye conic Kajal 10hr No. Smudge 4 hair spa, 2 serum kajal etc. vide order ID OD110447959614958000 dated 10.10.2017 for an First Appeal No 321 of 2019 3 amount of Rs.2,937/-. The products were delivered in time by the opposite parties and payment was made in cash to the consignee/representative of the opposite parties at the time of delivery of article at his house at Malout. On opening the parcel, the complainant found that opposite party did not deliver the complete products and the products in the box were of inferior / sub standard quality and were not the same products as shown by the opposite parties on its web site portal. The complainant approached the opposite party No.1, who assured the complainant to redress his grievances well in time and given time upto 18.10.2017 but the opposite party did not even bother to get the said products from the complainant. Two legal notices were also served upon the opposite parties but the opposite parties did not pay any heed. Alleging deficiency in service and unfair trade practice, the complainant sought the following directions against the opposite parties:-
i) to send genuine and original products instead of sub-
standard quality/ deficient products or to refund the amount in lieu of these products namely "Matrix Opticare Hair SPA and Biolage Serum Pack of 2 with Lakme Eye conic Kajal 10hr No. Smudge 4 hair spa, 2 serum, kajal etc. purchased by the complainant from the opposite party vide Order ID First Appeal No 321 of 2019 4 OD110447959614958000 dated 10.10.2017 for an amount of Rs.2,937/-;
ii) to pay Rs.50,000/- on account of mental tension, harassment, agony, so suffered by the complainant due to the selling of sub-standard products through Flipkart on line sale and also due to illegal and malafide act and also for deficiency in service on the part of the opposite party; and
iii) to pay Rs.10,000/- as litigation expenses.
3. Upon notice, opposite party No.1 appeared through his counsel and filed its reply, whereas opposite party No.2 had not appeared despite service, therefore, it was proceeded against ex- parte vide order dated 02.07.2018.
4. Opposite party No.1 filed its reply taking preliminary objections that opposite party No.1 is an electronic platform which acts as intermediary to facilitate sale transactions between independent third party sellers and independent end customers. Further submitted that the business of answering opposite party falls within the definition of an "intermediary" under Section 2(1)(w) of the Information Technology Act, 2000. The answering opposite party does not directly or indirectly sells any products on Flipkart Platform. Rather, all the products on Flipkart Platform are sold by third party sellers, who avail online marketplace services provided by it, on terms decided by respective sellers only; that any kind of First Appeal No 321 of 2019 5 assurance, price, discounts, promotional offers, after sale services or otherwise etc. are offered and provided by the manufacturer of the products sold on Flipkart platform. The opposite party No.1 neither offers nor provide any assurance or offers warranty to the end buyers of the product. The complainant is not a consumer of opposite party No.1. There is no privity of contract between complainant and opposite party No.1, as such, complainant has wrongly arrayed opposite party No.1. The complainant has no locus standi to file the present complaint as he is not a consumer u/S 2(d) of the Act as he is not an end user rather he used to sell the product on his shop. On merits, it was pleaded that the products, in question, were sold by opposite party No.2 and were delivered by their own logistic partner, as such, no liability can be fastened on opposite party No.1 for not delivering complete set of products or sub standard products. On receipt of the complaint, the matter was referred to the seller and it was conveyed to complainant that if there is any shortage of products, then amount of shortage of products will be refunded but the complainant did not agree to that and filed the complaint. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint.
5. The parties produced evidence in support of their respective averments before the District Commission, which after going through the same and hearing learned counsel appearing on their behalf passed the order in favour of the complainant, vide First Appeal No 321 of 2019 6 impugned order. Hence, this appeal by the appellant/opposite party No.1.
6. Notice of this appeal was issued to respondents through Registered Post. Respondent No.1/complainant appeared through his counsel, whereas respondent No.2 did not appear despite its service and was proceeded against ex-parte vide order dated 22.01.2020.
7. We have heard the learned counsel for the appellant as none has appeared on behalf of respondent No.1/complainant. We have also carefully gone through the record as well as written arguments filed by the parties.
8. Learned counsel for the appellants vehemently argued that the product was not sold by the appellant-opposite party No.1, rather the same was sold by respondent No.2/opposite party No.2. The appellant argued that it produced on record Ex.OP1/2, CD containing voice recording of the complainant and the Customer Care Executive, wherein it was admitted by the complainant/ respondent No.1 that he is running a shop and the product are used in the shop. Therefore, it is clear that the products are used for commercial purpose and the complainant / respondent No.1 is not consumer as per the Act. The District Commission has failed to consider the above said evidence brought on record by the appellant. The District Commission has also failed to consider that the invoice attached with the complaint shows the address of the shop of the complainant, whereas the address given in the First Appeal No 321 of 2019 7 complaint was of his house. The District Commission has also failed to consider that the appellant owns and operates an online web portal namely flipkart.com and is engaged in the business of online marketplace, providing platform/technology and/or other mechanism/services to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers and enables dealing in various categories of goods and there is no direct link in sale of goods. There is no contractual obligation of the appellant towards the complainant and hence neither any liability can be attributed to the appellant nor any relief can be claimed against the appellant. There is no deficiency in service or unfair trade practice committed on the part appellant/opposite party No.1. Finally, it is prayed to allow the appeal by setting aside the impugned order.
9. On the other hand, in the written arguments the respondent No.1/complainant submitted that the District Commission appreciated the submission and evidence led by respondent No.1 and rightly passed the judgment. It is a well proved case that the Appellant/opposite party No.1 and respondent/ opposite party No.2 sent only 3 biolage serum products instead of 6 and further found that the products in the box were of inferior / sub-standard quality and the same are not similar as shown by appellant on its web site portal. Despite approaching number of times, the appellant did not bother to get the return of the sub-standard products from respondent No.1/complainant. Due to the act and conduct of the First Appeal No 321 of 2019 8 appellant, the complainant suffered a great mental tension and harassment. The order passed by the District Commission is a well reasoned and justified order. There is no need of interference in it. Finally, it is prayed to dismiss the appeal and upheld the order of the District Commission.
10. We have given our thoughtful consideration to the contentions raised by the parties and have carefully gone through the record of the case.
11. Brief facts as per the documents placed by the parties are that the respondent/complainant purchased Cosmetic Products i.e. Matrix Opticare Hair Spa and Biolage Serum Pack of 2 with Lakme Eye Conic Kajal 10hr No., Smudge 4 hair Spa, 2 Serum Kajal etc. through opposite party No.1 i.e. Flipkart Internet (P) Ltd. Vide Ex.C-7 dated 10.10.2017 amounting to Rs.2,937/-. The respondent/complainant in his complaint para No.3 alleged that opposite party No.1 did not deliver the complete products i.e. only 3 biolage serum products instead of 6 were supplied and also the products were of the inferior quality i.e. not as shown by the appellant/ opposite party No.1 on its web site portal. A complaint was also lodged with the Customer Care of the appellant/opposite party No.1. However, in reply to the para no.5 of the complaint, opposite party No.1 has mentioned nothing about the short supply of products and the quality of the products supplied.
12. In the grounds of appeal, the appellant has stated that the respondent/complainant is not a consumer as disclosed by him First Appeal No 321 of 2019 9 during a conversation with Customer Care Executive that the products have been purchased for further selling as recorded in the CD placed in evidence as Ex.C-3 in the District Commission. However, we have gone through the conversation recorded in the CD wherein the respondent/complainant is stressing upon the short supply of products and also the quality of products. The Customer Care Executive assured the respondent/complainant to get back after report from the concerned team. No further report of the said team regarding short supply and the quality of products supplied has been explained by the appellant/ opposite party No.1. The products have been purchased in the individual name. The appellant/opposite party has not placed any vital document to evident that the respondent/complainant in the trade of selling of the said products and the address shipped is of the shop of the respondent/complainant. Therefore, the contention raised by the appellant is not tenable.
13. The other plea taken by the appellant/opposite party that the business of appellant falls within the definition of an "intermediary" u/S 2(i)(w) of the Information Technology Act, 2000. There is no privity of contract with the complainant, as it merely provides an online marketplace where the independent third party sellers can list their products for sale; therefore, the sellers themselves are responsible for their respective listing of products on the website and Opposite Party is neither responsible for the products that are listed on the website by various third party sellers' First Appeal No 321 of 2019 10 as well as their delivery. The payment has been received by the appellant/opposite party, therefore, it cannot be said that there is no privity of contract between the respondent/complainant and appellant/opposite party. Once the appellant/opposite party No.1 has accepted the payment, then the appellant/opposite party No.1 also along with respondent/opposite party No.2 is responsible for delivery of short products and of the quality of products. Therefore, the ground taken in the appeal is not justified.
14. No other ground has been raised by the appellant/ opposite party for setting aside the impugned order.
15. Sequel to the above discussions, the appeal filed by the appellant is devoid of merits and is hereby dismissed. The order of the District Commission is upheld.
16. The appellant had deposited a sum of Rs.4,000/- at the time of filing of the appeal. This sum, along with interest which has accrued thereon, if any, shall be remitted by the Registry of this Commission to the District Commission, after the expiry of 45 days of the sending of certified copy of the order to them. The concerned party may approach the District Commission for the release of the above amount to the extent of his/its entitlement and the District Commission may pass the appropriate order in this regard, in accordance with law. The Registry is further directed to remit the amount of Rs.2,000/- deposited as costs, to the respondent No.1/complainant, if not already remitted, in pursuance to the interim order dated 31.05.2019.
First Appeal No 321 of 2019 11
17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER February 22nd ,2022 parmod