BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-69/2017

Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).

Anand Kumar Sharma, aged about 28 years,

S/O-Sri Binod Kumar Sharma,Occupation-Bussiness.

R/O- Near Income Tax Office.,

Bangalipada,New Lane, Sarbahal Road,

P.O/P.s/Dist-Jharsuguda.                                                                           …..Complainant

Vrs.

1. ASUS Technology Pvt. Ltd.,

4C,Supreme Chambers,

Andheri West, Mumbai-400072.

2. Flipkart.com, C/O- Chief Executive Officer,

Vaishnavi Summit, No.6/B, 7^th Main, 80 feet Road,

3. ASUS Authorised Service Centre,

Shop No-2,Infront of Daily Market,

Budharaja, Sambalpur-768004(Odisha).……..O.Ps.

Counsels:-

1. For the Complainant:-  Self
2. For the O.P-1      :-         Sri S. Nayak, Advocate & Associates.
3. For the O.P-2      :-         Sri A.K Sahu,Advocate & Associates.
4. For the O.P-3      :-         Sri A.K Sahu,Advocate & Associates.

DATE OF HEARING : 08.03.2021, DATE OF ORDER : 12.04.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant in this case is a Businessman,  the O.P-1 is the manufacturer  of mobile phones under the brand ASUS and the O.P-3 is the authorised service provider of the O.P-1. O.P No-2 is the online trader of different articles in India. The Complainant had placed an order for ASUS Zenfone Max Mobile handset Model No-Z010 VU88642 having IMEI No-351976080725803 and 351976080725811  via Flipkart Internet Private Ltd.  through Shreyash Retail Pvt Ltd. vide invoice no-F0Y0J03117-00361216 on dt.05.10.2016 at a price of Rs 9499/-. The said phone was having a warranty up to dtd.21.09.2015. After use of some months the Complainant found some issues like auto shutdown, auto calling, operating software and touch screen failure etc. The Complainant intimated the matter to the O.P-3 and submitted it for repairing on dt 04.11.2016 for repairing as the mobile was under warranty.  After rectification of defects, the mobile was returned to the Complainant but the same problems were existed in the mobile.  Again the mobile was taken to the O.P-3 on dtd. 22.07.2017 and subsequently on 19.08.2017 but the problem was not resolved. On dtd. 23.09.2017 the Complainant again approached to the O.P-3 handed over the defective set and demanded new handset the O.P-3 denied to give him a new handset. On asking to the O.P-1 to replace the mobile the O.P-1 also replied that he is not authorised to replace the same. The Complainant as did not want to take back the mobile he filed a case before this Forum.

As per the O.P-1 the Complainant is business man using mobile phone in his business.  According to the database by the O.P-3 he received a unit of mobile phone from the Complainant on dtd. 04.11.2016 with respect to technical issues like- no power, hang auto restart etc. The Complainant on several occasions on dtd. 22.07.2017, 19.08.2017, 23.09.2017 submitted the mobile with the O.P-3 for removal of defects but at last he became unwilling to collect the same from the authorised service station of the O.P-3. Since then the Complainant has already used the mobile for seven months uninterruptedly.  He added that the present complaint petition is filed by the Complainant in spite of keeping the mobile with him is a afterthought and belated stage, hence it shall be dismissed with cost.

 As per the O.P-2 it is a company engaged in providing trading/selling facilities over the internet through its websites www.flipkart.com and mobile application collectively referred as Flipkart Platform. The Flipkart Platform is an electronic which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers. The independent third party sellers use the platform to list, advertise and offer to sell their products to the users/buyer who visit the said platform. The O.P-1 is an intermediary here. The O.P-1 does not directly or indirectly sells any products on Flipkart platform rather those are sold by third parties. The O.P-1 is neither a trader nor a service provider. The Complainant has purchased the product from one of the sellers listed on Flipkart Platform which is evident from the copy of seller tax invoice which clearly states that the order is through Flipkart. Hence the present complaint is not maintainable for which it deserves to be dismissed.

As per the O.P-3 he has not privity of contact with the Complainant  regarding the  said services of supply of new mobile provided by the O.P-1 that the Complainant handed over the mobile to the O.P-3 on dtd. 23.09.2017 and demanded a new one and being a franchisee service centre the O.3-3 cannot replace the same but can only repair the same.  Hence there is no question of rendering deficiency in services.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has placed an ordered to purchase a new ASUS Zenfone Max Mobile handset Model No-Z010 VU88642 via Flipkart. com through Shreyash Retail Pvt Ltd. vide invoice no-F0Y0J03117-00361216 on dt.05.10.2016 at a price of Rs 9499/-. The said mobile was delivered to the Complainant by the O.P-2. Again it is seen that the O.P-2 is a company engaged in providing trading/selling facilities over the internet through its websites www.flipkart.com and mobile application collectively referred as Flipkart Platform. It provides an electronic Platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers. Also it is inferred that the business of the O.P-2 falls within the definition of an intermediary under section 2(1)(w) of the Information and Technology Act,2000. As an intermediary the O.P-2 is protected by the provisions of section 79 of I.T act-2000. The role of the O.P. No.-2 is limited to that of a facilitator, and the products available on the Website of the O.P. No.2 are sold by third party sellers.  The complainant placed an order for the Product, manufactured by the O.P. No.1, from the website of the O.P. No-2  on 05.10.2016 and the said product was delivered to the complainant. The product in question was delivered to the complainant in a sealed box as it was received from the manufacturer and/or the seller.  Again there is no privity of contact between the Complainant and the O.P-2. The Complainant has purchased the product from one of the sellers listed on Flipkart Platform which is evident from the copy of seller tax invoice which clearly states that the order is THRUOGH Flipkart. It has no liability to provide after sale service and he has no opportunity to ascertain whether the product in this case is defective or has manufacturing defects.  The complainant has specifically pleaded that the mobile handset was giving problem and it was not working properly and LCD display was damaged. The mobile was repaired on payment during the warranty period by the O.P-3 without taking any incidental charges. The complainant was provided defective mobile hand set by the manufacturing company.  As the defect in the mobile hand set is continuing from the beginning and the defect had occurred in the mobile set within the warranty period but OP-1 &3 have repaired the set free of charges. But the O.P-3 could not able to remove the defects permanently within the warranty period which amounts to deficiency in service on the part of O.P- 1 & 3. This matter has been well settled in the case of Pallavi vs. Apple India Pvt. Ltd. decided by the State Consumer Disputes Redressal Commission ,Punjab , Chandigarh on 7^th  September, 2017.Hence we order as under-:

ORDER.

The Complaint petition is allowed. The O.P-1 & 3 are jointly and severally directed to replace the defective mobile handset and provide him a brand new Mobile Handset of same make and model i.e. make ASUS Zenfone Max Mobile handset  Model No-Z010VU88642 or refund the cost of the mobile handset of Rs. 9,499/-with 5% interest  per annum from the date of filing the complaint, i.e., dtd. 09.10.2017 till its realisation." The O.P-1 & 3 are jointly and severally further directed to pay Rs. 3,000/-(Rupees Three Thousand) towards the cost of litigation. All the above orders are to be carried out within 30 (Thirty) days of receiving of this order, failing which, the complainant is at liberty to proceed in due process of law.

            Order pronounced in the open court today i.e, on 12^th day of April -2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,                                                                                             

-Sd/-                                                                                                              -Sd/-

MEMBER.(W)                                                                                              PRESIDENT.

                                                Dictated and Corrected

                                                                By me.

                                                            -Sd/-

                                                            PRESIDENT.