State Consumer Disputes Redressal Commission
Flipkart Internet Pvt.Ltd. vs Amar Singh & Ors. on 13 March, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
First Appeal No.275 of 2021
Date of Institution : 06.08.2021
Reserved on : 06.03.2023
Date of Decision : 13.03.2023
Flipkart Online, Flipkart Internet Private Limited, Buildings Alyssa,
Begonia & Clove, Embassy Tech Village, Outer Ring Road,
Devarabeesanahalli Village, Bengaluru-560103, Karnataka, India.
.....Appellant/Opposite Party
Versus
1. Amar Singh S/o Mr. Kehar Singh, R/o Village Jiwan Arian,
Tehsil Guruhar Sahai, Ferozepur, Punjab.
2. Surinderpal Singh S/o Mr. Jagtar Singh, R/o Village Jiwan
Arian, Tehsil Guruhar Sahai, Ferozepur, Punjab.
3. Bakhshish Singh S/o Mr. Joginder Singh, R/o Village Jiwan
Arian, Tehsil Guruhar Sahai, Ferozepur, Punjab.
4. Baljit Singh S/o Mr. Harbhajan Singh, R/o Village Kassuwala,
(Makhu), Tehsil Zira, Ferozepur, Punjab.
.....Respondents/Complainants
First Appeal against the order dated
01.03.2021 passed by the District
Consumer Disputes Redressal
Commission, Ferozepur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the appellant : Sh. Atul Sharma, Advocate
For the respondents : None
2
First Appeal No.275 of 2021
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The appellant/opposite party i.e. Flipkart Internet Private Limited, through its Authorized Signatory has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (in short the 'Act') to challenge the order dated 01.03.2021 passed by the District Consumer Disputes Redressal Commission, Ferozepur (hereinafter referred as the "District Commission") in C.C. No.171 of 2020, whereby the complaint filed by the respondents/complainants was allowed by directing the appellant/OP to pay an amount of Rs.14,812/- alongwith interest @12% per annum from the date of filing of the complaint till its realization to the complainant. The appellant/OP was also directed to pay an amount of Rs.5000/- as consolidated compensation for causing mental agony, pain and harassment as well as litigation expenses. The compliance of the order was ordered to be made within a period of 30 days from the date of receipt of copy of the order.
2. Briefly, the facts of the case which are necessary for disposal of the present appeal are that the complainants got four air tickets for journey from Calcutta to Amritsar for 20.02.2020 through 3 First Appeal No.275 of 2021 Flipkart Online vide IDFF2002175180357 on paying of Rs.16,012/- to the OP. The complainants cancelled the said tickets on the same day i.e. 17.02.20202 stating to be under unavoidable circumstances. A message was received from the OP to refund said amount within a period of 5/7 days but still it was not refunded. Thereafter, the complainants approached the OP for refund of the amount but an amount of Rs.13,000/- was deducted by the Indigo Airlines on the ground of processing fee. Further Rs.3000/- was deducted by the OP. Stating to be a case of 'deficiency in service' as well as 'unfair trade practice' the complaint was filed with the prayer to refund the amount and to pay compensation as well as litigation expenses.
3. The complaint was contested by the OP by raising certain preliminary objections and on merits as well. It was also mentioned in the reply that the complainants were not entitled for any refund as the deduction was merely an intermediary for providing online platform for buyers and sellers to interact. Further it was mentioned that it was not a case of 'deficiency in service' on the part of the OP and prayer was made in the reply for dismissal of the complaint with cost.
4. By considering the averments made in the complaint and reply thereof and also after hearing the arguments raised from both the sides the complaint was allowed with the direction to OP to refund the said amount of Rs.14,812/- alongwith interest @12% per annum from the date of filing of the complaint till its realization to the complainants. The OP was also directed to pay an amount of 4 First Appeal No.275 of 2021 Rs.5000/- as consolidated compensation for causing mental agony, pain and harassment as well as litigation expenses. The compliance of the order was ordered to be made within a period of 30 days from the date of receipt of copy of the order failing which the complainant was held liable to get the order executed through the indulgence of the District Commission.
5. Being aggrieved by the impugned order dated 01.03.2021 passed by the District Commission the OP has filed the present appeal by raising a number of grounds.
6. There was a delay of 82 days in filing of the appeal. M.A. No.847 of 2021 was filed which was supported by an affidavit. Vide order dated 10.08.2021 delay was condoned and said M.A. was disposed off accordingly.
7. Mr. Atul Sharma Advocate, learned counsel for the appellant submits that the learned District Commission has failed to consider a material fact that the appellant had charged minimal ticket cancellation charges as per agreed terms i.e. Rs.300/- per passenger and the deduction of Rs.14,000/- was made by the Airline Company for which the appellant could not have been held liable. Learned counsel also submits that the District Commission has failed to interpret the terms of ticket cancellation as it was categorically mentioned in the booking confirmation that the appellant as well as Airline Company was to charge ticket cancellation penalties whereas the cancellation penalties were to be levied by the appellant which 5 First Appeal No.275 of 2021 was fixed at Rs.300/- per passenger per flight and charges were to be levied by Airline depending on the time gap between cancellation and flight departure. Learned counsel also submits that while passing the impugned order a material fact has not been taken into consideration as the dispute was between the respondents/complainants and Indigo Airline but the Indigo Airline was not impleaded as a party in the complaint. The appellant was merely an online intermediary and no role has been played by the appellant. The appellant has only charged the pre-agreed cancellation fee from the respondents and not charged anything over and above the agreed cancellation fee. The dispute was between the respondents/complainants and Indigo Airline and the appellant could not have been held liable for the allegations as mentioned in the complaint. Learned counsel further submits that the District Commission has wrongly awarded the amount and the rate of interest is also on higher side. At the end, learned counsel submits that the business of the appellant falls within the definition of intermediary as defined under Section 2(1)(w) of the Information Technology Act, 2000 and the appellant is protected by the provisions of Section 79 of the Information Technology Act, 2000. The permissible amount has already refunded to the respondents/complainants and no further refund was required to be made.
8. Notice in the appeal was issued to respondent/complainant and counsel representing the respondent/complainant appeared on 30.09.2021 only and thereafter 6 First Appeal No.275 of 2021 respondent No.1 Amar Singh appeared on 07.07.2022. Thereafter none appeared on 28.09.2022, 16.11.2022, 23.12.2022, 06.02.2023 and on 06.03.2023. Neither any request was made nor any intimation was sent to this Commission. However, written arguments were filed by the respondents/complainants, which are on record. In the written arguments it has been mentioned that the District Commission has passed the order by considering the stand taken by both the parties. An amount of Rs.13,000/- was deduced by Indigo Airline as processing fee and Rs.3000/- was deducted by the appellant/OP. The act and conduct of the appellant/OP was rightly stated to be an act of 'deficiency in service' and 'unfair trade practice'. The present appeal has been filed just to delay the execution proceedings filed before the District Commission just to delay the payment. The appeal was hopelessly time barred whereas the order was passed in the presence of the appellant/OP by the District Commission but the appeal was not filed within time.
9. Heard the arguments of learned counsel for the appellant. We have also gone through the written submissions filed by the respondents/complainants and have also perused the impugned order passed by the District Commission and other documents available on the file.
10. Facts relating to purchasing of four tickets by the complainants by paying amount thereof and cancellation of the tickets and thereafter request for refund of the amount, filing of complaint 7 First Appeal No.275 of 2021 before the District Commission and passing of the order in favour of the complainants and filing of appeal by the appellant/OP before this Commission being aggrieved by the said order passed by the District Commission are not in dispute.
11. Admittedly the complainants had cancelled the tickets and requested for refund of the amount. The complainants have placed on record the copy of document Ex.C-1 wherein cancellation and change of date, charges are mentioned, which is reproduced as under:-
"Please note that in case of booking cancellation both the airline and Flipkart will charge a cancellation fee. The airline cancellation fee may vary depending on the duration before flight departure. Flipkart will charge a cancellation fee of Rs.300 per passenger, per flight/sector."
As per case of the appellant, the complainants booked four Indigo Flight Tickets through online portal provided by the appellant on 17.02.2020 for journey scheduled on 20.02.2020 from Kolkata to Amritsar on payment of Rs.16012/- but on the same day i.e. on 17.02.2020 the complainants cancelled the tickets by informing the appellant/OP whereas the flight was scheduled for 20.02.2020. Without providing any detail of huge deduction, amounts to 'deficiency in service' on the part of the appellant/OP. No break up of amount which was to be deducted by the Airline had been provided by the appellant/OP in Ex.C-1. Charging of cancellation fee by the Airline was varying in nature depending upon the duration before 8 First Appeal No.275 of 2021 flight departure but in the present case the complainants got cancelled the said tickets on the same day i.e. 17.02.2020. Even in reply the OP has failed to provide the details of deduction which was to be made by the Airline. The complainants have placed on record the copy of message which was sent by the appellant/OP i.e. Ex.C-2. From perusal of document Ex.C-2, it is apparent that an amount of Rs.15,200/- has been mentioned as total cancellation fee and total refund has been mentioned as "Rs.0". No breakup of amount has been mentioned therein. Moreover the word "Refunded" has been mentioned against the name of the complainants in Ex.C-2 but as per the version of the complainants, no amount was refunded by the appellant/OP.
12. There was also a condition of refund of amount under the Heading of Cancellation & Date Change Charges (Ex.C-1), which is reproduced as under:-
"In case of booking cancellation, the refund (if applicable) will be refunded to your bank account or the original mode of payment within 7 days."
On perusal of said condition, it is apparent that the appellant/OP had to refund the amount within a period of 7 days of cancellation of the booking. Even no evidence was produced by the appellant/OP regarding refund of the amount within 7 days to the complainants. This act of the appellant/OP amounts to 'deficiency in service'. 9 First Appeal No.275 of 2021
13. Documents Ex.C-1 and C-2 were issued by the appellant/OP to the complainants and the appellant has failed to rebut the same on the record. Even the appellant/OP has failed to produce on record any document before the District Commission as well as before this Commission whereby the Airline communicated with the complainants. All communications were exchanged between the complainants and the appellant/OP and the amount was also received by the appellant/OP from the complainants as such the District Commission has rightly held the appellant/OP liable to refund the amount.
14. In case any dispute is there between principal Airlines and Flipkart it is their inter se dispute and they are at liberty to avail the proper remedy.
15. In view of above discussion, we are in agreement with the findings recorded by the District Commission. The appellant has rightly been directed to refund the amount of Rs.14,812/- but the rate of interest i.e. 12% per annum appears to be on the higher side. Accordingly, we deem it appropriate to modify the impugned order dated 01.03.2021 passed by the District Commission by reducing the rate of interest from 12% per annum to 9% per annum. We find force in the argument raised by counsel for the appellant with regard to higher rate of interest i.e. 12% per annum and we accept this contention of the appellant and reduce the rate of interest from 12% to 9% per annum. Accordingly, the appeal filed by the appellant is 10 First Appeal No.275 of 2021 partly allowed by modifying the rate of interest from 12% to 9% per annum from the date of filing of the complaint and remaining part of the order is upheld.
16. The appellant had deposited an amount of Rs.11,300/- at the time of filing of the appeal with this Commission. Said amount, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. Respondents/complainants are at liberty to approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
17. Since the main case is decided, the pending applications, if any, are also disposed of.
18. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 13, 2023 (MM)