DISTRICT CONSUMERS DISPUTE REDRESSAL FORUM, SAMBALPUR

C.C. No.26 of 2017

        Sri Dolagovinda Pradhan,

S/o Tankadhar Pradhan,

Aged about 33 years.

R/o –C/o Kotak Mahindra bank, Kadambari complex, Nayapara,

P.O./P.S Town, Dist. – Sambalpur                                             ……………… Petitioner

-VERSUS –

1. Flipkart.com represented by C.M.D, Flipkart Internet Private  Limited, Vaishnavi Summit, No. 6/B, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala, Bangalore- 560034.
2. Proprietor, Consulting Rooms Pvt. Ltd. No. 42/1 & 43, Kacherakanahalli Village, Jadigenahalli Hobli,  Hoskote Taluk, Bengaluru- 560067
3. In-Charge, M/s.R.R. Mobiles, At Near Shrusti Nursing Home, P.O.-Budharaja, P.S Ainthapali, Dist. Sambalpur-768004.
4. Proprietor, Bhagwati Products Ltd. Plot No. 18, Sector-2 IIE Pantnagar, Rudrapur, U.S. Nagar, Uttarakhand- 263153
5. The care Manager, Customer Care Office, YU Televentures Pvt. Ltd., 90 B, Sector-18, Gurgaon-122015, Haryana.                                                              ……….. Opp. Parties

       For Complainant               :          Sri K. Jethi  Adv. & Associates.

       For O.P.s No.1 & 2          :           A.K. Sahoo & Aswin Kumar

       For O.P.s No.3 & 4          :          None                                                                         

       For O.P.s No.5                 :          S.K. Dash

        PRESENT:-  SHRI A.P. MUND, PRESIDENT

                              SMT. S. TRIPATHY, MEMBER

                              SHRI K.D.DASH, MEMBER

Date of Order: 02.08.2018                                 

Shri A.P. Mund, President

            The case of the complainant is that;

1. The complainant  is working as a gunmen at Kotak Mahindra Bank, Sambalpur and O.P. No. 1 is the online trader.  The O.P. No. 2 is the seller of mobile phones and  other related articles, using the services of the website of O.P. No. 1 as a platform for selling of articles. The  O.P. No. 3 is the authorized service centre of the “Yureka Plus” Mobile Brand and O.P. No. 4 is the manufacturer. The O.P. No. 5 is the service head of “Yureka Plus” Mobile Brand.
2. The complainant on dt. 19.12.2016  placed his order for Yureka Plus mobile handset bearing model No. YU5510A on the website of O.P. No. 1 vide order No. OD50789995333655000 and opted  for the payment by the mode of COD (Cash on Delivery) as payment option for a consideration amount of Rs. 5499/- (Rupees Five thousand four hundred ninety nine) and an invoice bearing No.F0YSF00817 – 00048903  dt. 19.12.2016  was accordingly generated by O.P. No. 1 therein reflecting the sale  done by O.P No. 2.
3. O.P. No. 2 accordingly sent one Yureka Plus Mobile  handset bearing Model No. YU55101A bearing IMEI No. 911476102662137  and 911476103662136 and  the same was delivered to the petitioner through O.P.  No. 1 on dt. 27.12.2016.
4.  The petitioner was provided with   the mobile phone with a warranty from dt. 19.12.2016  to dt. 18.12.2017  i.e. one year from the date of purchase.
5. The complainant found that the handset was not working properly and the handset was getting excessively heated up and the battery was draining from 100% to 0%  within an hour i.e. not giving proper battery backup and accordingly the petitioner on dt. 3^rd January 2017, telephoned the O.P. No. 5 through the toll free no. 1860-212-2122  reporting /complaining the said  problem faced by the petitioner  for which he suffered a lot.
6. Petitioner approached to O.P. No. 3, the O.P. No. 3 advised the petitioner to leave the hand set for checking  at O.P.No.3’s  service centre as the mobile phone was under warranty at that time.
7. Finally after 21 days i.e. on 24^th Jan. 2017 the O.P. No. 3 informed the petitioner that the handset is working  properly but the cause of defect may be a manufacturing defect in the Yureka Plus Mobile  handset bearing Model No. YU5510A as it is not properly supporting the Android Version OS and it could be  a probable reason for heating of the handset. The O.P. No.3 accordingly changed the Android Version OS (operating system) to Cyanogen version OS. It is not out of  place to mention here that the Mobile brand Yureka Plus provides a factory set up with Anddroid Kitkat Os version by default and returned the handset to the petitioner  on dt. 25^th Jan 2017.
8. After receiving the handset, the petitioner faced similar troubles and again on dt. 27^th Jan 2017 the petitioner approached to O.P. No. 3  reporting same heating  problem with discharge of battery  to zero percent (0%) within an hour after fully charging the battery to hundred  percent (100%).
9. The O.P. No. 3 informed the petitioner that the mobile  handset having manufacturing defects  needs to be sent to O.P. No. 5 to change the Cyanogen version OS to Andrdoid version OS and also  for resolving the problem of overheating of the battery  back-up issue and accordingly kept the mobile  phone and generated a Job sheet  bearing No. E-010143021727574449 dt. 27.01.17 and assured to return the mobile phone with resolving the mobile problem or by replacing the mobile phone in case of non-repairing of  the mobile within two weeks.
10. On 4^th March 2017 the O.P. No. 3 telephoned the petitioner informing the petitioner that this mobile problem has been resolved and the set has come ot O.P. No. 3 from O.P. No. 5 and asked the petitioner to take back his handset.
11. The petitioner  after receiving the handset opened the battery lid and was astonished to see that the battery of his handset was replaced and an old battery having S/N V039941501100022878  was attached  to his mobile phone and the said old battery was not the original signed battery of the petitioner.
12. The petitioner on 6^th march 2017 reported/complained the matter to O.P. No. 5 over telephone and a complain bearing No. 3031625 was registered  by the O.P. No. 5 and was assured  to replace the old battery and  mobile phone and again asked  to approached to O.P. No. 3 for the same.
13. The hand set showed  manufacturing  problem within 7 days of usage i.e. from 27the Dec. 2016 to  3^rd Jan 2017  and the act of the O.Ps not only constitute deficiency  in service and unfair trade and practices, but also tantamount    to cheating attracting criminal actions.
14.  Due to such inherent defects in the mobile  handset the petitioner sustained a loss of Rs. 5499/- towards the cost of the mobile handset and also faced hardship and mental agony.

On the basis of above the complainant prays for ;

PRAYER

1. To return the total cost of the phone i.e. Rs. 5499/-(Rupees Five thousand four hundred ninety nine) only
2. To pay Rs. 2000/-(Rupees two thousand) only towards expenses of the present litigation and Rs. 2500/- Rupees two thousand five hundred) only towards purchase of another mobile by the petitioner.
3. To pay Rs. 40,000/-(Rupees forty thousand) only towards mental agony.
4. To pay Rs. 10,000/-(Rupees ten thousand) only for financial loss and deficiency in service.
5. Any other relief, as deemed fit and  proper by the Hon’ble forum.

Documents filed by the complainant ;

1. True Xerox copy of the purchase invoice bearing No. F0YSF00817-00048903.
2. Original coy of the paper issued by O.P. No. 3 on dt. 04.03.2017.
3. True Xerox copy of the Old Battery bearing S/N V039941501100022878.
4.  Any other document found relevant at the time of bearing.

The O.P. No. 1 & 2 filed their version which is as follows :

1. The  O.P. No. 1 reiterates that the complainant has purchased the product  from one of the  sellers listed on the  Flipkart Platform, which is also evidenced from the seller tax invoice which clearly states that the order is “ordered THROUGH Flipkart”. This O.P. No. 1 is not involved in the  entire transaction executed between the seller and the complainant. There is no privity of contract between the complainant and the O.P.  No. 1 and hence, O.P.  No. 1 does not render any liability arising out of such contract.  This is the crux of the submission of O.P. No. 1 & on this basis  absolves itself from any liabilities.
2. The role of O.P. No. 2 is only limited to reselling the products of various  manufacturers and its role comes to the end as soon as the product ordered is delivered at the address provided by the customer.
3. Other O.P.’s did not participate in the proceeding nor filed their version.

O.P. No.1 had appeared and filed the W.S., exonerating itself by avering  that  it has no role to play in the aforesaid service and also no privity contact between the complainant  and  O.P. No 1. The complaint against O.P.  No. 1 may be dismissed.

 O.P. No. 2 had appeared. Filed W.S.  Denying all the liabilities. The main version / averment is that, he is only a reseller of the product  of various manufacturer and its role comes to the end as soon as  the products ordered is delivered on the  address provided by the customer. On this basis  prays for dismissal of the case  against the O.P. No. 2. This was agreed to by this Forum.

During  the course of the case the Advocate for complainant and O.P. No. 5 filed a compromise petition wherein the O.P. has agreed to pay a sum of Rs. 7499/- (Rupees Seven Thousand four hundred Ninety nine) only to the complainant filed on 11.07.2017. This forum accepted the proposal of compromise and both the parties were asked to appear on 25.07.2017.

The O.P. No. 5 renege on the  compromise petition and did not pay. This forum could have taken action u/s. 27 of C.P. Act for renegading on the compromise petition. We are pronouncing this order along with  action to be taken u/s. 27  of C.P. Act.

We have heard  from the side of the Learned Advocate for the complainant. Gone through the complaint petition, documents, and the version filed by O.P. No. 1 & 2.  This is a simple case for deficiency in service. We are convinced with the complainant that after purchasing the mobile set, It showed manufacturing  problem which was not remedied by O.P. No. 3 or replaced by O.P. No. 4. The O.P. No. 5 has taken this forum for a ride by filing a compromise petition on 11.07.17 with no intention of acting as per the compromise petition.

  O R D E R

The O.P. No. 3,4 & 5 are jointly liable for deficiency  in service, i.e. setting the mobile  in a working condition after proper repair. They have also not  acted as per their compromise petition. Hence it is ordered that the O.P. No. 3,4 & 5 are jointly liable for this deficiency and they are jointly liable to pay and the price of the mobile set  which is Rs. 5499/- (Five thousand four hundred ninety nine) they have  to pay interest @12 % from the  date of delivery of the mobile i.e. 27.12.2016 till payment. We strongly feel that by violating a compromise petition  the O.P. No. 3,4 & 5 have  jointly  invited penalty of Rs. 5000/- (Rupees Five thousand) only which  they are to pay along with the above mentioned amount with interest for the purchase of mobile. The O.P. No. 3,4 & 5  are jointly  liable to pay the above ordered money within a period of one month from the date of  order, otherwise  it will carry an interest of 12 % from the date of order till payment.

                                                                                          Sd/-

                                         SHRI A.P. MUND

Sd/-                                                                                                                     President

MRS. S. TRIPATHY, MEMBER, I agree

Sd/-                                                                                                              Dictated and corrected by me

SHRI K.D. DASH, MEMBER, I agree.                                                                                     Sd/-

                                  President