State Consumer Disputes Redressal Commission
Flipkart Internet Pvt. Ltd. vs Sh. Dinesh Kumar. on 25 August, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 109/2017
Date of Presentation: 06.03.2017
Order Reserved On : 03.07.2017
Date of Order : 25.08.2017
......
Flipkart Internet Pvt. Ltd. Registered Office at Vaishnavi
Summit Ground Floor 7th Main 3rd Block 80 Feet Road
Koramangala Bangalore - 560094.
...... Appellant/Opposite party
Versus
Dinesh Kumar s/o Shri Bhagwan Dass Sharma
Room No. 402 Yojna Bhawan H.P. Secretariat
Shimla - 171002 Himachal Pradesh.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma 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 26.12.2016 passed by Learned District Forum in consumer complaint No. 118/2015 title 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.109/2017) Brief facts of Case:
2. Complainant Dinesh Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant purchased Xiaomi M13 from Flipkart on dated 19.08.2014 in consideration amount of Rs.13999/- (Thirteen thousand nine hundred ninety nine). It is pleaded that phone was working properly till 27.04.2015. It is further pleaded that complainant was on tour to Mumbai w.e.f. 25.04.2015 to 04.05.2015. It is further pleaded that complainant reached Mumbai on dated 25.04.2015 by way of flight from Chandigarh and when he used phone on 27.04.2015 in afternoon phone was not responding. It is further pleaded that there was crack on the screen of phone. It is further pleaded that thereafter complainant contacted service station at Mumbai but he was informed that it would take about 10 to 15 days for repair of mobile phone. It is further pleaded that complainant dropped idea and reached Shimla. It is further pleaded that on dated 05.05.2015 complainant visited Shimla service centre. It is further pleaded that person at reception informed complainant that he has to pay a sum of Rs.6600/- (Six thousand six hundred). It is further pleaded that defect occurred during the warranty period. It is further pleaded that opposite party informed that complainant has to pay for the repair of mobile. Complainant sought relief that 2 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.109/2017) his mobile screen be ordered to be replaced free of costs.
Complainant also sought compensation @ Rs.1000/- (One thousand) per day w.e.f. 05.05.2015.
3. Per contra version filed on behalf of opposite party pleaded therein that complainant suppressed material facts from District Forum. It is pleaded that business of opposite party falls within the definition of intermediary under section 2(1)(w) of Information Technology Act 2000. It is further pleaded that complaint is bad for mis-joinder of necessary parties. It is further pleaded that there is no privity of contract between complainant and opposite party. It is further pleaded that complaint is bad for non-joinder of manufacture or seller as party. Prayer for dismissal of complaint sought.
4. Complainant also filed rejoinder and reasserted allegations mentioned in the complaint.
5. Learned District Forum allowed complaint and directed opposite party to replace screen of mobile free of costs within 45 days. Learned District Forum also ordered opposite party to pay a sum of Rs.10000/- (Ten thousand) to complainant as damages on account of mental agony. Learned District Forum also ordered opposite party to pay litigation costs to the tune of Rs.5000/- (Five thousand). 3
Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.109/2017)
6. Feeling aggrieved against order passed by Learned District Forum Flipkart Internet Pvt. Ltd. filed present appeal before State Commission.
7. We have heard learned advocate appearing on behalf of appellant and we have also heard respondent who appeared in person. We have also perused entire record carefully.
8. Following points arises for determination in present appeal.
1. Whether affidavit filed in support of complaint i.e. pleadings by complainant could be treated as evidence relating to controversial facts for adjudication of consumer disputes under section 13(4) of Consumer Protection Act 1986.
2. Final order.
Findings upon point No.1 with reasons:
9. After perusal of complaint and after perusal of version filed by opposite party learned District Forum ordered complainant to adduce evidence qua controversial facts. On dated 09.12.2015 complainant namely Dinesh Kumar stated before learned District Forum that affidavit already filed in support of complaint be read in evidence.
10. Opposite party filed in evidence affidavit of Mr. Amit Pratap. There is recital in the affidavit that deponent 4 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.109/2017) is authorized signatory of Flipkart Internet Pvt. Ltd. There is further recital in the affidavit that complainant has suppressed material facts from District Forum. There is further recital in the affidavit that business of opposite party falls within definition of intermediary under section 2(1)(w) of Information Technology Act 2000. There is further recital in the affidavit that there is no privity of contract between complainant and opposite party. There is further recital in the affidavit that manufacturer and authorized service centre of manufacturer are under legal obligation to remove defect during warranty period. There is further recital in the affidavit that complainant could seek relief only against manufacturer or its authorized service center.
11. State Commission has also perused affidavit filed by complainant in support of complaint. There is specific recital in the affidavit that affidavit was filed in support of complaint i.e. pleadings under section 12 of Consumer Protection Act 1986.
12. State Commission is of the opinion that affidavit in support of complaint i.e. pleadings and affidavit in support of controversial facts inter se parties under section 13(4) of Consumer Protection Act 1986 are entirely two different concepts under law and under consumer Protection Act 1986. 5
Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.109/2017) See 2017 (3) Himachal Law Reporter 1873 H.P. General Manager NHPC Versus Kiran Rekha Sood.
13. It is well settled law that evidence relating to adjudication of controversial facts could be adduced strictly as per modes mentioned under Section 13(4) of Consumer Protection Act 1986. Section 13(4) of Consumer Protection Act 1986 is quoted in toto:-
13(4) For the purposes of this section the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters namely:--]
(i) Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath.
(ii) Discovery and production of any document or other material object producible as evidence.
(iii) Reception of evidence on affidavits.
(iv) Requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source.
(v) Issuing of any commission for the examination of any witness.
(vi) Any other matter which may be prescribed.
14. It is held that complaint is defined under section 2(c) of Consumer Protection Act 1986 which means allegation in writing made by complainant. It is held that complaint is only allegation in writing made by complainant and could not be treated as evidence of complainant under section 13(4) of Consumer Protection Act 1986 for adjudication of consumer disputes. It is held that learned District Forum has committed 6 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.109/2017) material procedural irregularity by way of treating affidavit filed in support of complain (Pleadings) as evidence of complainant under section 13(4) of Consumer Protection Act 1986 for adjudication of controversial facts. State Commission is of the opinion that it is not expedient in the ends of justice to dispose of appeal on merits unless material procedural irregularity is not rectified. Point No.1 is decided accordingly. Point No.1 is decided accordingly.
Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is decided accordingly and order of learned District Forum dated 26.12.2016 announced in consumer complaint No.118/2015 title Dinesh Kumar Versus Flipkart Internet Private Ltd. is set aside. Complaint is remanded back to learned District Forum with order that learned District Forum will obtain evidence of complainant by way of affidavits relating to controversial facts strictly as per modes mentioned under section 13(4) of Consumer Protection Act 1986. It is further ordered that thereafter learned District Forum will give opportunity to opposite party to adduce rebuttal evidence and after receiving evidence of parties learned District Forum will dispose of complaint afresh strictly in accordance with law and proved facts within two months. Observations will not effect merits of the case. Statement of complainant dated 09.12.2015 will 7 Flipkart Internet Pvt. Ltd. Versus Dinesh Kumar (F.A. No.109/2017) form part and parcel of order. Parties are directed to appear before learned District Forum Shimla on 06.09.2017. 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 Meena Verma Member 25.08.2017.
*GUPTA* 8