Microsoft Word - CC 360 2023 _Repaired

Complaint No.360/2023

Date of Filing: 03.11.2023

Date of Disposal :16.05.2024

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT No.360/2023

DATED ON THIS THE 16

th

May, 2024

Present: 1) Smt.A.K. Naveen Kumari.,

B.Sc., LL.M., - PRESIDENT

2) Sri. Maruthi Vaddar

BA., LLB., (Spl) – MEMBER

COMPLAINANT/S

Karthik.H.K, aged 38

years No.139, Ground

Floor, 2

nd

Main, A1

Block, Vijayanagara, 3

rd

Stage, Mysuru City.

(In person)

V/S

OPPOSITE PARTY/S

Flipkart Internet Private

Ltd., Building Alyssa,

Begonia and Clove

Embassy Tech Village,

Outer Ring Road,

Devarabeesanahalli

Village, Bengaluru-

560103.

(Rep.by.Adv

Apoorvanada.K)

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2

Nature of complaint

:

Deficiency in service

Date of filing of complaint

:

03.11.2023

Date of Issue notice :

15.11.2023

Date of order :

16.05.2024

Duration of Proceeding :

6 MONTHS 13 DAYS

SMT.A.K. NAVEEN KUMARI.

PRESIDENT

The Complainant has filed the complaint against the

opposite party seeking compensation of Rs. 1,00,000/- each

towards mental agony deficiency in service and neglect

towards hearing impaired special person and Rs. 10,000/-

towards litigation expenses and Rs. 600/- towards

disallowed value of the old exchange mobile. In all

amounting to Rs. 3,10,600/-.

2. The complaint in brief avers as follows:-

That on 21.03.2023 the complainant has placed the order

for mobile through Flipkart on-line by exchanging his old

mobile phone for Rs.2,550/-. On 23.03.2023, about 4.30

p.m., he received new mobile phone but, at the time of

giving discount towards his old mobile by assigning one or

the other defects in the mobile by deducting of Rs.600/-

gave discount of Rs.1,950/-only. It is contended that the

complainant has explained the conditions about the

exchange of old mobile phone along with proof, but he was

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given discount of Rs.1,950/- only. It is contended that the

complainant has made correspondence through on-line

with the opposite party from 25.03.2023 to 11.05.2023, but

it went in vain. So, he preferred appeal before the

Government Grievance Appellate Committee, Government of

India in Appeal No.230/2023 on 11.05.2023. But the said

complaint was closed with an endorsement to approach the

proper Forum.

3. It is contended that since he is a hearing impaired person

requested the opposite party to send the messages instead

of making phone calls, in spite of it the opposite party used

to contact him through phone call and made allegations

against him that he is not available for phone call. Then

closed the complaint stating that his problem could not be

solved through message and has committed deficiency in

service. Hence, the complaint.

4. After filing of the complaint notice was issued to the

opposite party. After service of the notice the opposite party

appeared through counsel and filed version, which avers as

follows:-

That the opposite party is the owner of the website

www.flipkart.com along with its mobile application named

“Flipkart” (hereinafter collectively referred to as the

“Flipkart Platform”) which inter-alia are engaged, in

providing trading/selling facility over the Internet through

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its platform. That opposite party is an on line marketplace

e-commerce entity. That the said “Flipkart Platform” is an

electronic marketplace model e-commerce platform which

acts as an intermediary to facilitate sale transactions

between independent third party sellers and independent

complainants. It is submitted that the sellers are separate

entities being controlled and managed by different

persons/stakeholders. Thus, for any act of the seller, the

marketplace e-commerce platform or its operating entity

cannot be held liable. The complainant has failed to array

the seller in the present complaint, and thus the present

complaint is liable to the dismissed on the sole ground.

5. It is contended that the business of the opposite party falls

within the definition of an intermediary under section

2(1)(w) of the Information Technology Act, 2000. That this

opposite party is protected by the provisions of Section 79

of the Information Technology Act, 2000. The intermediary

observes due diligence while discharging his duties under

this Act and also observed such other guidelines as the

Central Government may prescribe in this behalf. Moreover,

Section 5(1) of Consumer Protection (E-commerce) Rules,

2020 also provides for exemption to marketplace e-

commerce entity under sub section 1 of section 79, who

complies with sub-section (2) and (3) of that section. That

the opposite party is merely an intermediate platform

wherein the seller(s) and buyer(s) can transact freely with

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disclosure and warranties to be strictly between such

seller(s) and buyer(s). That as per the complaint, the

complainant placed the order for SAMSUNG Galaxy S21 FE

5G (Lavender, 128 GB) on 21

st

March 2023, which was

delivered to the customer on 23

rd

March 2023.

6. That the complainant emailed to the opposite party on 23

rd

March 2023, stating that the wish-master reduced the

exchange value by Rs.600/-, citing the reason that there

were scratches on the device, however, there were no

scratches on the device. The team tried contacting the

complainant multiple times on 25

th

March 2023; however,

there was no response from the complainant. Hence, the

team emailed requesting the complainant to share an

alternate number and a convenient time to call back. The

complainant emailed on 6

th

March 2023, stating that he is a

hearing-impaired person, and does not want any callback.

7. It is contended that the complainant opted exchange his old

phone while purchasing the aforementioned product and it

remains entirely at the discretion of the complainant

whether to proceed with the exchange and accept the

provided value or retain the old product. In the current

scenario, the complainant chose to return the old product,

and an estimated amount for the same was indicated at the

time of the product purchase. That the website of the

opposite party explicitly mentions the possibility of a

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variance in value under specific conditions related to the

phones condition. Moreover, it is crucial to note that the

decision to return the old product or the stipulated value

was willingly made by the complainant and this amount

was duly adjusted against the cost of a new product. The

assertion by the complainant that they received an

insufficient value is untenable, considering their conscious

decision to proceed with the exchange based on the offered

amount.

8. That the complainant’s claim of the phone lacking scratches

or dents lacks substantiation, as no documentary evidence

has been provided to support such assertions. The

complainant willingly relinquished the old phone to the

designated personnel without raising any objections at that

time. The complainant’s current contention that they

received an inadequate value for the exchanged product is

unfounded, given their voluntary decision to proceed with

the exchange and the absence of supporting evidence

regarding the phone’s condition.

9. That the complainant’s concerns have been attended to

and complied with on many occasions by the opposite

party. The complainant is not maintainable as it alleges

fraud and involves complicated question of facts and law

and would need detailed evidence. These on-line sale

transactions by the user are governed by the “condition of

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sale” which reiterates that there is a bipartite agreement

entered into between the buyer and the independent third

party sellers as stipulated. That the complainant is guilty of

‘suppresioveri’ and ‘suggestiofalsi’. The complainant has

made misconceived and baseless allegations of deficiency in

service without any relevant documentary evidence in

support of the allegations made in the complaint. That there

is no deficiency of service per se on the part of the opposite

party. Hence, prays to dismiss the complaint with

exemplary costs.

10. The Complainant has filed affidavit in lieu of evidence and

got marked documents as Ex-P1 to P7.

The Legal Executive, of the opposite party has filed affidavit

in lieu evidence and got marked documents as Ex.R1 and

R2.

11. Heard arguments of the Complainant.

The learned counsel for the opposite party failed to address

arguments.

12. Now the points that arise for the consideration of this

commission are:-

1. Whether the complainant has proved

the deficiency in service by the opposite

party?

2. Whether the complainant is entitle for

the relief sought?

3. To what order?

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13. Our findings on the aforesaid points are as follows:-

Point No.1:- In the Affirmative

Point No.2:- Partly in the Affirmative

Point No.3 :- As per the final order for the

following reasons:-

:: R E A S O N S ::

14. Point No.1:- The evidence of the Complainant

discloses that he has purchased the new mobile phone

through Flipkart, as per the tax invoice marked as

Ex.P7 for Rs. 28,518/-. As per the evidence of the

complainant there was ex-change offer for old mobile by

the opposite party. So, as per the advertisement he has

agreed for discount of Rs. 2,550/-. But, the opposite

party gave discount of only Rs. 1,950/- by deducting

Rs. 600/-. Ex-P6 is the copy of the Flipkart for having

shown the product ex-change value as Rs.1,950/-. The

first and the foremost defence of the opposite party is

that it is just an intermediary and it is not liable to

indemnify the complainant and the complainant has to

make the seller as a party. The opposite party has not

stated as to who is the seller.

15. The documents produced by the Complainant disclose

that he has transacted with the opposite party. When

such is the case the opposite party cannot contend that

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it is not answerable to the complainant. With regard to

the ex-change offer, the opposite party also admits that

the scratch on the back side or edge of the mobile is not

referred in the advertisement for fixing the value of the

old mobile, but only scratch on the screen is referred.

So, deducting of Rs.600/- towards exchange of old

mobile contending that there is scratch on the edge of

the mobile and giving discount of Rs. 1,950/-instead of

Rs.2,550/- which was admitted by the Complainant is

not correct.

16. When the complainant has placed materials before the

opposite party with regard to the condition imposed by

the opposite party regarding ex-change offer of the old

mobile and fixing the value of the old mobile, the

opposite party instead of considering the request of the

complainant deducting of Rs.600/-towards scratch on

the back side of the mobile is not correct. Moreover, the

complainant has sent message to the opposite party

that he is a special person suffering from hearing

impaired and he cannot converse through mobile phone

and requested the opposite party to send message or

telegram to him they have not obliged and frequently

made calls to him through phone and closed the matter

stating that the complainant is not available for phone

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call. So, as rightly contended by the Complainant it

amounts to deficiency in service by the opposite party.

Hence we answer this point in the Affirmative.

17. Point No.2:- The Complainant has sought compensation of

Rs. 1,00,000/- each towards mental agony, neglect towards

hearing impaired special person and towards deficiency in

service. And sought compensation of Rs. 10,000/- towards

litigation expenses, which is on higher side. The

complainant is entitled for refund of Rs. 600/- towards the

amount deducted towards exchange of his old mobile. He

has entitled for compensation of Rs. 10,000/- towards

mental agony and deficiency in service and he has entitled

for cost of Rs. 5,000/- towards litigation expenses. Hence

we answer this point partly in the Affirmative.

18. Point No.3:- In view of answering points No.1 and 2 as

above we proceed to pass the following:-

:: ORDER ::

The Complaint is allowed in part

The opposite party shall pay Rs. 600/-

towards the old mobile discount, Rs.

10,000/- towards deficiency in service and

mental agony and cost of Rs. 5,000/-

towards litigation expenses to the

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Complainant within one month from the

date of passing of this order

Failing which the opposite party shall

pay interest on the said amount at 9% p.a.

on Rs. 15,600/- from the date of this order

till its actual payment.

Furnish free copy of the order to both the

parties.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and

then pronounced in open Commission on this the 16

th

May, 2024)

(A.K. NAVEEN KUMARI)

PRESIDENT

(MARUTHI VADDAR)

MEMBER