Date of Filing:       16.02.2017

                                                                                                                       Date of Disposal:  08.03.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:  THIRU.  J. JUSTIN DAVID, M.A., M.L.,                 .…. PRESIDENT

                    TMT.      K. PRAMEELA, M.Com.,                          ….. MEMBER-I

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.,   ..… MEMBER-2

CC No.12/2017

FRIDAY, THE ^8th  DAY OF MARCH 2019

 S.Sridhar,

S/o.T.G.Shanmugam,

No.25/23, Thambusamy Nagar,

Thiruverkadu,

Chennai - 600 077.                                                                      …… Complainant.

                                                     //Vs//

1.M/s.Shreyash Retail Private Limited,

    Rep. by its Manager,

    SND Ware Housing, Shed No.C1,

    D.No.4/195, Redhills, Ambattur Road,

    Puzhal Village,

   Chennai - 600 062.

2.M/s. Flextronics Technologies (Ind.) Private Limited,

    Rep. by its Manager,

   (DTA Unit), Plot No.3, Phase II,

   Sipcot Industrial Park,

   Sandavellu C Village,

   Sriperumpudur Talk,

   Kanchipuram District,

  Tamil Nadu- 602 106.

3.M/s.Motorola Mobility India Private Limited,

    Rep. by its Manager,

   12^th floor, Tower D, DLF Cyber Greens,

   DLF Cyber City,

   Gurugoan -122 022, Hanyana.

4.M/s.Motorola Mobility India Private Limited,

    Rep. by its Customer Care Manager,

    K.Raheja IT Park, Hi-Tech City,

   Madhapur,

   Hyderabad - 500 081.

5.M/s.Motorola Service Center,

    M/s Ensure-Esc-Digital Communications,

    Rep. by its Manager,

    No.6, 1^st Floor, Raja Bhadar Street,

    Pondy Bazaar,

   Chennai - 600 017.

6.M/s.Flipkart Internet Private Limited,

    Rep. by its Authorized Representative,

    Ozone Maney Tech Park,

    No.56/18, &55/09, 7^th Floor,

    Garvebhavipalya,  Hosur Road,

    Bangalore -560 068, Karnataka.                                           ….. Opposite parties.

This complaint is coming upon before us finally on 28.02.2019 in the presence of Mr.S.Kannan, Counsel for the complainant and Mr.S.Sushilkumar  counsel for the 1^st opposite party and Mr.Awanish Kumar counsel for the 6^th opposite party and 5^th opposite party appeared in person subsequently written version filed but proof affidavit and written argument not filed therefore the 5^th opposite party was set ex-parte and 2 to 4^th opposite parties set ex-parte for non appearance and upon hearing argument having perused the documents and evidences this forum, delivered the following:-

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite parties for seeking direction to replace the mobile handset with a new one Motorola Moto Z Play, XT,-1635-02 or to refund of Rs.22,827/- and to pay a sum of Rs.1,00,000/-mental agony suffered by the complainant and to pay a sum of Rs.30,000/- towards the transit charges and litigation expenses due to the deficiency of service on the part of the opposite parties.

2.The brief averments of the complaint is brief as follows:-

The complainant purchased a brand new mobile phone ‘Motorola’ Moto Z play, XT-1635-02, bearing IMEI number’s 358960060748335 and 358960060748343 on 12.11.2016 for Rs.22,827/-.  Booked online through 6^th opposite party (FLIPKART) and the handset was delivered to the complainant on 13.11.2016, invoice number ‘FOYQ103017-00820201’ dated 12.11.2016.  The 1^st opposite party is the retailer of this product and the same was sold to the complainant by the 1^st opposite party and the 2^nd opposite party is the manufacturer of this product and the 4^th opposite party is the customer care center for this product and the 5^th opposite party is the authorized service center for the said product.  From the beginning of purchase itself the mobile used to get unusual heat, even when used for a short time.  During the last week of December 2016 the display in the mobile was not working and no display came and the complainant was not able to use the mobile phone.  On 03.01.2017 the complainant went to the 5^th opposite party, the authorized service center of the product to give the mobile for repair as it is within the warranty period and 5^th opposite party refused to repair the product under warranty and instructed the complainant to pay Rs.12,000/- to rectify the defect.  Therefore the complainant caused a legal notice to the opposite parties through his counsel on 06.01.2017 calling upon the opposite parties to replace the handset or to refund the cost of the mobile, but till now the opposite parties doesn’t even care to reply for the same.  Therefore the complainant prays that this Hon’ble Forum to replace the mobile handset or to refund the mobile cost of Rs.22,827/- and to pay a sum of Rs.1,00,000/- towards mental agony suffered by the complainant and to pay a sum Rs.30,000/- towards cost of the litigation to the complainant.

3. The contention of written version of the 1^st opposite party is briefly as follows:-

 The complainant has suppressed true and material facts and not approached with clean hands.  The 1^st opposite party is carrying on the business of sale of goods produced by others and is a registered seller on the website flipkart.com and sells products of others through the website and 1^st opposite party has acquired good market reputation for its range of products offered and for its exceptional customer support and the products sold by the 1^st opposite party carries manufacturer’s warranty.  There has neither been any shortage of supply nor any deficiency of service and 1^st opposite party is not the manufacturer or the service centre engaged by the manufacturer.  The complainant has put up crooked and manipulative stories concealing the true facts with regard to defects in his product and denial of after sale services.  The service centre has provided their remarks as LCD Broken which clarifies the fact that the product was having physical damage due to complainant’s own mishandling and the 1^st opposite party has delivered the product in a sealed box to the complainant within the time specified in the order and hence there is no deficiency of service on the part of the 1^st opposite party. The manufacturer along with the service centre is responsible to provide after sale service under the warranty clause.  Further the complainant has never approached the 1^st opposite party for any grievances.  It is not the case of selling defective product and the same is evident from the fact that the complainant had used the product in issue about two months without any problem.  It is the sole duty of the manufacturer or authorized service centre to remove the defects.  The complainant has failed to establish any cause of action under the provisions of the Consumer Protection Act, against the 1^st opposite party and the 1^st opposite party has no role to play in providing after sale service.  Therefore this Hon’ble Forum may be pleased to dismiss the complaint against the 1^st opposite party with exemplary costs.

4. The contention of written version of the 5^th  opposite party is briefly as follows:-

When the complainant approached the authorized service provider, the authorized service engineer has duly attended the complaint and found that the display of the smart phone was damaged due to mishandling of the complainant, which is not covered under warranty for providing ‘Free of Cost’ and the handset is not defective or has manufacturing defect which warranted replacement. Further there is no cause of action accrued within the territorial jurisdiction of this Hon’ble court hence this case is not maintainable.  Further the complainant should have contacted the customer care or the authorized service provider of the answering opposite party but the complainant has failed to do so in spite of having the user warranty terms which was supplied at the time of purchase of the handset.  The complainant is aware of the terms and conditions of warranty and how to use the smart phone.  However the complainant has failed to handle his mobile phone carefully and lodge a complaint when he faced issue during last week of December. The complainant has denied availing the required services on chargeable basis to his smart phone.  Therefore the service engineer was constrained to return the handset to the complainant without repairing the same.  The complainant has impliedly admitted, accepted and subjected himself to the terms and conditions at the time of purchase of the smart phone Moto Z-play. The rights and liability of 3^rd and 4^th opposite parties are limited to the extent of terms and condition of the warranty and the complainant is fully aware of the warranty policy.  Therefore the complainant is not entitled to any equity or relief from Motorola except taking resort to warranty terms.  Consequently there is no deficiency in service and there is no question of mental agony to the complainant as he has not accepted for availing the services on chargeable basis which was duly offered by the authorized service provider.  Therefore there is no deficiency in service and the complainant is not eligible for refund of the smart phone.

5. The contention of written version of the 6^th  opposite party is briefly as follows:-

 The 6^th opposite party Filpkart internet private limited is a company duly registered under the provision of the companies Act-1956 and having its registered office at Vaishnavi summit, Ground Floor, 7^th Main , 80 Feet Road, 3^rd Block, Koramangla Industrial layout, Bangalore 560 034, Karnataka.  The company is engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (Mob App) (hereinafter collectively referred to as the Filpkart Platform).  The 6^th opposite party provides online marketplace platform/technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc.,.  The Flipkart platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers.  The business of the 6^th opposite party falls within the definition of an intermediary under section 2(1) (w) of the information Technology Act-2000.  The 6^th opposite party neither offers nor provides any assurance or offers warranty to the end buyers of the product.  The complainant doesn’t fall under the category of consumer of the 6^th opposite party under the provisions of the Consumer Protections Act as the 6^th opposite party is neither a trader nor a service provider and there does not exists any privity of contract between the complainant and the 6^th opposite party. Therefore the complainant has wrongly arrayed 6^th opposite party in the present complaint and hence the complaint is bad for mis-joinder of party.  The 6^th opposite party has not charged any amount from the complainant for using the services available on online marketplace Flipkart platform and the complainant does not fall within the ambit of the definition of the term Consumer as provided under section 2(1) of the Consumer Protection Act-1986.  The grievance of the complainant should have been against the manufacturer of the product or the authorized service centre appointed by the manufacturer.  The 6^th opposite party is neither a seller nor the manufacturer/producer/service centre of the product in this case.  The product purchased by the complainant was manufactured by the 3^rd and 4^th opposite parties and sold by the 1^st opposite party.  The complainant has failed to establish any defect or deficiency on the part of the 6^th opposite party and hence no cause of action has arisen against the 6^th opposite party and the relief claimed under the present complaint is untenable and unreasonable from the 6^th opposite party. Therefore this Hon’ble forum may be pleased to dismiss the complaint against the 6^th opposite party with exemplary costs.

6. In order to prove the case, on the side of the complainant, the proof Affidavit submitted as his evidence and Ex.A1to Ex.A11 were marked.  While so, on the side of the 1^st and 6^th opposite parties proof Affidavit filed as their evidence but no document filed on their sides.  Further written arguments filed and oral arguments also adduced on the complainant and 1^st and 6^th opposite parties and the 5^th opposite party appeared in person subsequently written version filed but proof affidavit and written argument not filed therefore the 5^th opposite party was set ex-parte and 2 to 4^th opposite parties set ex-parte for non appearance.

7.At this juncture, the point for consideration before this Forum is:-

1) Whether there is any deficiency in service on the part of the opposite parties as alleged in the complaint?

2) Whether the complainant is entitled for replacement of the mobile hand set or refund of mobile cost Rs.22,827/- from the opposite parties?

3) Whether the complainant is entitled for compensation and cost?

     4) To what other reliefs, the complainant is entitled?

8. Point No.1 to 3:-

The case of the complainant is that on 12.11.2016 the complainant purchased a brand new mobile phone ‘Motorola’ Moto Z play, XT-1635-02, bearing IMEI number’s 358960060748335 and 358960060748343 for Rs.22,827/- from the 1^st opposite party, that the mobile phone used to get unusual heat from the beginning of purchase, that during the last week of December 2016 the said mobile display was not working and therefore the complainant went to the 5^th opposite party service centre to repair the mobile phone on 03.01.2017 but on the same day the 5^th opposite party refused to repair the product under the warranty and demanded Rs.12,000/- to rectify the defects and thereby the complainant sustained mental agony due to the deficiency of service on the part of the opposite parties.

9. While so, the 1^st opposite party contended that the complainant has put up crooked and manipulative stories concealing the true facts with regard to defects in his product and denial of after sale services.  The service centre has provided their remarks as LCD Broken which clarifies the fact that the product was having physical damage due to complainant’s own mishandling and the 1^st opposite party has delivered the product in a sealed box to the complainant within the time specified in the order and hence there is no deficiency of service on the part of the 1^st opposite party. 

10. Further the 5^th opposite party contended that When the complainant approached the authorized service provider, the authorized service engineer has duly attended the complaint and found that the display of the smart phone was damaged due to mishandling of the complainant, which is not covered under warranty for providing ‘Free of Cost’ and therefore as per the terms of warranty the complainant has to pay the charges for repairing parts and therefore there is no deficiency in service on the part of the 5^th opposite party.

11. Further the 6^th opposite party also contended that the 6^th opposite party provides online marketplace platform/technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transactions.  The 6^th opposite party neither offers nor provides any assurance or offer warranty to the end buyers and therefore there is no deficiency in service on the part of the 6^th opposite party.

12. The 1^st opposite party is the retailer of the product and the mobile phone was sold to the complainant by the 1^st opposite party. The 2^nd opposite party is the manufacturer of this product, the 4^th opposite party is the customer care center for this product and the 5^th opposite party is the authorized service center for the said product and the 6^th opposite party is the flipkart internet private limited who has sold the product namely mobile phone manufactured by the 3^rd opposite party.

13. The complainant purchased a brand new mobile phone Motorola Moto Z play, XT-1635-02, bearing IMEI number’s 358960060748335 and 358960060748343 for Rs.22,827/- from the 1^st opposite party on 12.11.2016.  Ex.A1 is the copy of the receipt for purchase of mobile phone.  According to the complainant the mobile phone has purchased on 12.11.2016 from the opposite party get unusual heat from the beginning of purchase itself and during the last week of December 2016 the display in the mobile was not working and therefore the complainant went to 5^th opposite party service centre for repairing the said mobile phone on 03.01.2017.  But 5^th opposite party refused to repair and demanded the complainant to pay Rs.12,000/- to rectify the defects.  Ex.A2 is the service record of the mobile phone dated 03.01.2017.  In Ex.A2 it is written as follows: MOBILE DEAD VIBRATE ONLY/LCD BROKEN: ESCCTG01, 2017-01-03, 13:10. 

14. The complainant alleged that the opposite party has written LCD Broken but the complainant denied the same. In Ex.A2 it is written as LCD broken but there is no signature of the 5^th opposite party or the service engineer.  Further in Ex.A2 there is an endorsement as returned without repair.  There is no signature below the endorsement. Therefore there is no evidence that the complainant has damaged the LCD of the mobile phone.  It is the duty of the 5^th opposite party to repair the mobile phone since the defects arises within the period of warranty, but the 5^th opposite party has returned the said mobile phone to the complainant without repair which amounts to deficiency in service.

15. Further the 2^nd opposite party is the manufacturer who manufactured the product of 3^rd opposite party and the 4^th opposite party is the customer care service centre are also jointly and severally liable for the deficiency committed by the 5^th opposite party who is the authorized service centre of the mobile phone. Therefore the 2^nd to 5^th opposite party are jointly and severally liable for deficiency in service committed by the 5^th opposite party.

16. The 1^st opposite party is only a retailer who is delivered the product in a sealed box to the complainant and 6^th opposite party is the Flipkart internet private limited and he neither offers nor provides any assurance or offers warranty to the buyer of the product.  Further the 6^th opposite party has not charged any amount from the complainant.  Therefore the 1^st and 6^th opposite party are not liable for the deficiency in service, since 1^st and 6^th opposite parties have not committed deficiency in service.

17. The mobile phone purchased by the complainant on 12.11.2016, it was not working from the last week of December 2016 and the complainant went to the authorized service centre on 03.01.2017 for repair within warranty period but the 5^th opposite party refused to repair the product and returned the same to the complainant without rectifying the defects.  Therefore the 2^nd to 5^th opposite parties committed deficiency in service.

18. The complainant has not filed any document to prove that there is manufacturing defects in the product.  Further the complainant has not taken any steps to get expert opinion to prove that there is manufacturing defects.  Since there is no manufacturing defects in the product the complainant is not entitled for replacement of mobile hand set or refund of Rs.22,827/-. On the other hand the 2^nd to 5^th opposite parties jointly and severally are liable to repair the mobile phone on free of cost.

19.  The 5^th opposite party returned the mobile phone to the complainant without repair and thereby the complainant was unable to use the mobile phone.  Because of the deficiency in service the complainant sustained mentally agony and therefore the complainant is entitled for compensation and cost. Thus the point Nos.1to 3 are answered accordingly

20. Point No.4:-

In the result, this complaint is allowed in part.  Accordingly, the Opposite Parties 2 to 5 are jointly and severally directed to rectify the defects found in the ‘Motorala’ Moto Z Play XT-1635-02 mobile phone purchased by the complainant on free of cost within two months from the date of receipt of the copy of this order.  Further the opposite parties 2 to 5 are jointly and severally directed to pay a sum of Rs.15,000/- (Rupees Fifteen thousand only) towards compensation for causing mental agony due to the deficiency in service on the part of the opposite parties 2 to 5 and also to pay a sum Rs.5,000/-(Rupees Five thousand only) towards cost of this litigation to the complainant.  The complaint against 1^st and 6^th opposite parties is dismissed and with respect to other reliefs also this complaint is dismissed.

The above amount shall be payable by the opposite parties 2 to 5 within two months from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum of this 08^th March 2019.

MEMBER-II                                   MEMBER-I                                                PRESIDENT

List of document filed by the complainant:-

List of document filed by the 1^st opposite party:-

        -No documents-

List of document filed by the 6^th opposite party:-

         -No Documents-

-Sd-                                                    -Sd-                                                            -Sd-

MEMBER-II                                 MEMBER-I                                            PRESIDENT