BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.
Narender Kaajla, R/o H.No.101, Block E-4, GHS-79, (AWHO Society), Sector-20, Panchkula (Haryana). ….Complainant
Versus
1. Manager (sales) flipkart, DLF City IV, Sector-28, Gurgaon, Haryana.
3. Manager Trackon Courier Services, DSS-312, (Ground Floor), Sector-20, Panchkula, Haryana.
….Opposite Parties
COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.
Before: Mr.Dharam Pal, President.
Mrs.Anita Kapoor, Member.
Mr.S.P.Attri, Member.
For the Parties: Mr.Amit Singla, Adv., for the complainant.
Mr.Amit Mahajan, Adv., for the Op No.1.
Ops No.2 & 3 are exparte.
ORDER
(Dharam Pal, President)
The complainant-Narender Kaajla has filed this complaint under Section 12 of the Consumer
Protection Act, 1986 against the Ops with the averments that he placed an order online
shopping in the name of Prikshit Kaajla minor son,
for purchasing Nintendo DS (a playing
device) on 08.12.2014 but the seller of OP No.1 has sent only a chip (new super Mario Bross
DS games) vide order ID No.OD301460567362312100 (Annexure C-1) dated 05.12.2014
which was received on 08.12.2014. After receiving the consignment, the complainant has
sent a mail regarding return of the product and to refund the amount of Rs.3000/- only but
the same was not answered. The complainant again sent a mail but to no avail. Thereafter,
the complainant sent back the consignment at their address through Trackon Courier Service
i.e. Op No.3 vide receipt No.426801897 dated 17.12.2014 (Annexure C-2). The complainant
also contacted the Op No.1 on toll-free number and their representative stated that they were
looking into the matter and would refund the money as soon as possible. But the Ops refused
to return the money vide mail dated 24.01.2015 (Annexure C-4). The Ops No.1 and 2 are not
refunding the amount of Rs.3000/- nor admitting that whether they have received the product
or not. As per report of courier services, the consignment has been received by the Ops No.1
and 2 on 22.12.2014. As per the norms/policy of the online shopping, in case the product is
returned in 30 days of delivery, they would returned the money and the Op No.1 also
assured the complainant, if the product returned within 30 days, they should refund the
money but to no avail. This act of the opposite parties amounts to deficiency in service on
their part. Hence, this complaint.
OP No.1 appeared and filed written statement by taking some preliminary objections and
submitted that the Op No.1 is a company duly registered under the provisions of the
Companies Act, 1956 and having its registered office at Vaishnavi Summit, Ground Floor, 7
Main, 80 Feet Road, 3 Block, Koramangla Industrial Layout, Bangalore 560034, th rd
Karnataka. It is submitted that the company is engaged among others, in providing
trading/selling facility over the internet through its website . It is www.flipkart.com
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 games,
mobiles, music, 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” u/s 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…
1. 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.
2.The provisions of sub-section (1) shall apply if
a.the functions of
b.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 notinitiate
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.
3. The provisions of sub-section (1) shall not apply ifa)
the intermediary has conspired or abetted or aided or induced, whether by
threats or promise or otherwise in the commission of the unlawful act;
b) upon receiving actual knowledge, or on being notified by the appropriate
Government or its agency that any information, data or communication link
residing in or connected to a computer resource controlled by the intermediary is
being used to commit the unlawful act, the intermediary fails to expeditiously
remove or disable access to that material on that resource without vitiating the
evidence in any manner.
It is submitted that the complainant is not a consumer of OP No.1 under the provision
of Consumer Protection Act. It is submitted that there is no privity of contract between
the complainant and Op No.1. It is submitted that the users of the website/buyer of
goods are bound by the terms of use enumerated on the website. It is submitted that the
complainant has placed an order for Nintendo DS (a playing device) from the seller
“Sunder Electronics” i.e. Op No.2 on 05.12.2014. It is submitted that the complainant
contacted on toll-free number. It is submitted that the OP No.1 is not liable to refund
the price of the product in question as the OP No.1 has not sold any product to the
complainant. Thus, there is no deficiency in service on the part of Op No.1 and prayed
for dismissal of the complaint.
OP No.2 appeared on 03.06.2015 and sought time for filing written statement, the case was
adjourned to 12.06.2015. On 12.06.2015, none has appeared on behalf of OP No.2 and the
case was adjourned to 22.07.2015. On 22.07.2015, quorum of this Forum was not complete
and the case adjourned to 29.07.2015. On 29.07.2015, also none has appeared on behalf of
Op No.2 nor filed any written statement after availing opportunities and the OP No.2 was
proceeded against ex-parte vide order dated 29.07.2015.
Notice was issued to the Op No.3 through speed post but the Op No.3. It is deemed to be
served and the Op No.1 was proceeded against ex-parte vide order dated 03.06.2015.
The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith
documents Annexure C-1 & C1/A to C-6 and closed the evidence. On the other hand, the Op
No.1 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents
Annexure R1/1 & R1/2 and closed the evidence.
We have heard learned counsel for the parties and have also perused the record as well as
written arguments submitted by the counsel for the Op No.1 carefully and minutely.
Admittedly, the complainant had placed an order with OP No.1 on dated 05.12.2014 vide ID
No. OD301460567362312100 for his son namely Prikashit Kaajla (minor) which was
received on 08.12.2014. Perusal of case file reveals that the order was placed for purchase of
Nintendo DS (a playing device) but the Ops has delivered the item having description New
as shown in Ex.C1/A, therefore, the complainant had Super Mario Bros DS Games
returned the product to the Ops on 18.12.2014 (vide Ex.C2) and also sent an email to the
Ops requesting them to refund an amount of Rs.3,000/- (vide Ex.C3). The grievance of the
complainant is that the OP No.1 vide Ex.C4 declined his claim on the ground that seller has
crossed the 10 days replacement policy. Had it been so, it was obligatory on the part of the
OP No.1 to intimate the complainant with this condition but the OP No.1 has failed to
produce any evidence and document to show that such type of condition/policy/intimation
has ever been issued to the complainant either at the time of receiving of order/money or at
the time of delivery/dispatch of the product. Learned counsel for the complainant drew the
attention of the document Ex.R1/1 wherein it has been mentioned that Buyer need to raise
It is not the refund request within 10 days from the date of payment realization.
disputed that the product (though the wrong item was delivered) to the complainant on
08.12.2014 and the complainant had sent the same to the OP No. on 18.12.2014 as is evident
through Ex.C2 i.e. courier receipt. The act and conduct of the OP No.1 clearly shows that in
this way or that way it wants to harass the consumer to avoid the payment made by the
complainant. Learned counsel for the OP No.1 raised another plea that it never comes in
possession of the product, therefore no privity of contract has arisen with the complainant as
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 Floor, Mahalaxmi Engineering Estate st
decided on L.J.Road No.1 Mahim (W) Vs. Ms.Urmil Munjal c/o Gurgaon Gramin Bank
in 10.07.2015 by the Hon’ble National Commission 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 any consumer and 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 that wrong item 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 because it sells or sends The Consumer Protection Act, 1986
the wrong item than the purchased item product even after charging full amount of the
product.
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:-
To refund the amount received from the complainant qua the product in question i.e.
Rs.3000/- alongwith interest @ 9% p.a. from the date of depositing of amount till
realization.
To pay an amount of Rs.10,000/- as compensation for mental agony and harassment etc.
This order shall be complied with by the ops within one month from the date of receipt
of the certified copy, thereafter, the Ops shall pay the amount at serial No.1 above with
the interest @ 12 % per annum form the date of depositing of the amount by the
complainant till realization besides complying with the direction at serial No.2 above. A
copy of this order be supplied to the parties free of costs. File be consigned to records
after due compliance.
Announced 29.10.2015S.P.ATTRI ANITA KAPOOR DHARAM PAL
MEMBER MEMBER PRESIDENT
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COMMENTS