BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-48/2018

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

Shekh Asif, aged about 28 years,

Rama Didi House,

Neart Shree Niwas Apartment,

Gandhinagar Para,Bolangir-767001.Odisha.                                            …..Complainant

Vrs.

1. Sony India Pvt. Ltd.,

CIN No-U74899DL1994PTC062781, A-18,

Mohan Cooperative Industrial Estate,

Mathura Road, New Delhi-110044.

2. Consulting Rooms Private Ltd,

Ariana Projects, Situated at Old Delhi Road,

Shima Mouza, Dist- Hoogly, Kolkata,

West Bengal, PIN-712249.

3. Royal Services,

Khata No-142,Plot No-510/3086,

At-Charbati Chowk, P.O/Dist-Sambalpur,

4. Flipkart Internet Pvt. Ltd,

First Floot No-447,1^st AX, 4^th Block,

Opposite BSNL Telephone Exchange ,

Counsels:-

1. For the Complainant:-   Self
2. For the O.P-1      :-          None.
3. For the O.P-2      :-          Sri A.K Sahu,Advocate & Associates.
4. For the O.P-3      :-          None
5. For the O.P-4      :-          Sri A.K Sahu,Advocate & Associates.

DATE OF HEARING : 10.03.2021, DATE OF ORDER : 13.04.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that  the O.P-1 is the manufacturer  of mobile phones under the brand SONY 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 Sony xperia  X- Dual SIM Mobile handset  having IMEI No-35809973895989   via Flipkart Internet Private Ltd. who is the O.P-4 in this case vide invoice no-FAAAK11800056449 on dt.07.09.2017 at a price of Rs 22,990/-. The said phone was having a warranty up to dtd.21.09.2015. After use of some months the Complainant found some issues like video recording and camera not functioning, phone temperature high, camera shutdown automatically. The Complainant intimated the matter to the O.P-3 who replaced the defective mobile and provided a new one.  This phone also shown the same defects with fingerprint detection issues.  The Complainant made contact with the customer care centre and sent e-mail to customer service head at New Delhi but in vain.  For the above deficiency in service the Complainant filed this case before this Commission for certain relief.

As per the O.P-2, it is carrying on the business of sale of goods manufactured/produced by others.  The O.P-2 is a registered seller  on the website of flipkart.com and sells the products of other manufacturer, manufactured under their own brand name. Liabilities to provide after sale services does not lie on the O.P-2 The authorised service centre may be held responsible for the defective product as it was replaced twice by him but giving the same problems. Again it cannot be ascertained that the product becomes defective due to customer’s abuse or has manufacturing defects.  The O.P-2 relied on the decision of Apex Court in Hindustan Motors Ltd. and Anr Vrs. N Sivakumar(2000)10 SCC 654 and Abhinandan vrs. Ajit Kumar Verma and Ors. (2008) CPJ 336(NC). Hence the O.p-2 denied any liability.

As per the O.P-4 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.

The O.P-1 & 3, despite of service of notice he did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose the case as well setting the O.P-1 &3 as ex-parte in this case. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code.

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 Sony xperia X- Dual SIM Mobile handset  having IMEI No-35809973895989   via Flipkart Internet Private Ltd. who is the O.P-4 in this case vide invoice no-FAAAK11800056449 on dt.07.09.2017 at a price of Rs 22,990/-. The said mobile was delivered to the Complainant by the O.P-4. Again it is seen that the O.P-4 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-4 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-4 is protected by the provisions of section 79 of I.T act-2000. The role of the O.P. No.-4 is limited to that of a facilitator, and the products available on the Website of the O.P. No.-4 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-4  on 07.09.2017 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-4. 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 Sony xperia  X- Dual SIM Mobile handset or refund the cost of the mobile handset of Rs. 22,990/-with 5% interest  per annum from the date of filing the complaint, i.e., dtd. 03.07.2018 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 13^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.