State Consumer Disputes Redressal Commission (SCDRC), West Bengal: While considering the instant petition filed against Flipkart for selling counterfeit whey protein milk powder, the Bench of Kundan Kumar Kumai (Presiding Member) and Swapan Kumar Das (Member) ascertained N.H. Traders’ (seller) liability for selling counterfeit protein powder via Flipkart and directed them to refund Rs. 6524 i.e., the amount paid for the counterfeit protein, along with compensation of Rs. 20000/- for mental and physical agony and Rs. 10000 as litigation cost.
Background: The Complainant had ordered one, ‘Muscletech Performance Series Nitrotech Whey Protein Milk Chocolate’ on 06-08-2021 via Flipkart for personal consumption, as a nutritional supplement. On receiving the said product, the complainant checked for the scratch code, which could not be detected and hence he raised the issue before Flipkart, who in turn suggested, verifying the finding of the Complainant. The complainant sent the picture of the product to the opposite party 3 through e-mail and sought clarification as to the authenticity of the product that was delivered. Opposite Party 3 reverted, stating that the product was found to be counterfeit and requested the complainant to contact the seller. The complaint complied with the direction but did not get a refund for the counterfeit product.
Flipkart contested the claim stating that that it is only an online marketplace and e-commerce entity as defined under the Consumer Protection Act, 2019 and Consumer Protection (E-Commerce) Rules, 2020. It was contended that the role of Flipkart was merely to facilitate the sale of the product between the complainant and the opposite party 2 (the seller), therefore, Flipkart was acting merely as an ‘intermediary’. Meanwhile, the seller did not appear before the Commission to contest the claim.
Commission’s Assessment: The Commission noted that there is nothing to show that Flipkart had violated the provisions of the Consumer Protection (E-commerce) Rules, 2020.
However, it was pointed out that Flipkart should have taken the strict view vis-à-vis for breach of the Terms of Use as regards to sale of counterfeit edible products on its platform, as the same could have resulted in a serious health complication. It was noted that no evidence was presented from Flipkart which indicates any action being taken by them against the seller. The Commission however did not find any case of liability in the instant case against Flipkart.
It was pointed out that the seller did not appear to contest the claim and the uncontroverted testimony of the complainant clearly points to the fact that the seller had not only sold the protein powder but the same was also found to be a counterfeit one.
Under the circumstance, the Commission found that the seller was liable to not only refund the price of the product, but also compensate the complainant for such mental and physical agony, especially when there was no evidence that the complainant had initiated criminal proceedings against the seller.
[Jamal Haider v. Flipkart Internet Pvt. Ltd., CC No. 3/2021, decided on 22-04-2024]
*Order by Kundan Kumar Kumai (Presiding Member)
