Andhra Pradesh

Nellore

CC/31/2016

Bassetty Srinivasa Rao, Son of Subrahmanyam - Complainant(s)

Versus

1. The Managing Director, Xiomi Technology India Private Ltd - Opp.Party(s)

Tanjavuru Srinivasa Rao

02 May 2017

ORDER

Date of filing       :  18-06-2015

Date of Disposal :   02 -05-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Tuesday, this the 2nd day of MAY, 2017.

 

          PRESENT:  Sri V.C. Gunnaiah, B.Com., M.L, President(FAC)

                                      Sri K.Umamaheswara Rao, M.A., B.L.,  Member.                               

                     

                             

C.C.No.31/2016        

 

Bassetty Srinivasa Rao,

Son of Subrahmanyam,

Hindu, Profession,

Aged about 52 years,

Sakilavari Street, Fathekhanpet,

Nellore.                                                                              …  Complainant

 

                      Vs.

                                                                            

1. The Managing Director,

Xiomi Technology India Private Ltd.,

8^th Floor, Tower-I, Umiya Business,

Bay Marabahalli, Sarjapur Outer Ring Road,

Bangalore, Karnataka State.

 

2. The Executive Chairman and Co.Founder,

Flipkart India Private Ltd.,

No.447/B, 1-A, Cross, 12^th Main,

4^th Block, Opp: BSNL, Telephone Exchange,

Koramangala, Bangalore, Karnataka State.

 

3. The Managing Director,

W.S.Retail Services Private Ltd.,

71/1, Opp: B.G.S.Con Office,

W.S.Ramaiah Main Road,

Gokula, S.B.M. Colony,

Mathikera, Bangalore,

Karnataka State.

 

4. EKART Logistics,

Near: Kanaka Mahal,

Opp: Chandana Show Room,

Subedarpet Road,

Nellore City.                                                      … Opposite parties

 

 

This matter coming on 24-04-2017 before us for final hearing in the presence of Sri T.Srinivasa Rao, Advocate for the complainant and                                M/s.Milind G Gokhale, Advocates for 2^nd and 3^rd opposite parties, 1^st and 4^th opposite parties remained absent and having stood over for consideration till this day, this Forum passed the following:                                                   

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

                                   ORDER                                                                                                                                                                                                                                                                                          (By Sri K.Umamaheswara Rao, M.A., B.L., Member)

 

1.     The complainant filed this complaint under section 12 of Consumer Protection Act, to direct the opposite parties to replace the new smart phone in the place of damaged smart phone or direct the opposite parties to refund the cost of the smart phone with interest @18% p.a., and to pay Rs.10,000/- towards damages for deficiency of service along with Rs.3,000/- for costs.

 

2.  The averments of the complaint in brevity are as follows:

 

The complainant submits that the 1^st opposite party is the manufacturer of Smart Phones globally and the 1^st opposite party market its phones through online platform of 2^nd opposite party.  The 3^rd opposite party is a listed seller on the online platform of 2^nd opposite party.  The complainant placed an online order on 15^th October, 2015 from Nellore for purchasing of XIOMI M141 Smart Phone to the 2^nd opposite party. The 2^nd opposite party delivered the smart phone to the complainant on22nd October, 2015 through 4^th opposite party with warranty period of one year and replacement period of 30 days from the date of its purchase.  At the time of delivery of the smart phone, the 2^nd opposite party did not sent the invoice copy to the complainant along with smart phone or to the complainant’s mail.  After receiving the smart phone by the complainant, the same was not functioned due to Camera and torch problem within replacement period of 30 days from this date of delivery.  Since the warranty period the complainant sent so many mails to the 2^nd opposite party but he did not respond to the mails.  Finally, the complainant got issued legal notices dtd.31-12-2015 and 03-02-2016 to the 2^nd and 3^rd opposite parties and the same was served.  The 2^nd opposite party sent reply notice to the complainant dated 18-01-2016 stating that the complainant may approach the manufacturer.  So, the acts of the opposite parties under the purview of deficiency in service.    Hence, the complaint.

 

2) The brief facts of the counter/written version of the 2nd opposite party are as follows:

    The 2^nd opposite party i.e., Flipkart India Private Limited is a duly registered company and is into wholesale cash and carry business. The 2^nd opposite party further submits that the complaint is wholly false, frivolous and vexatious and has been filed with malafide intention of harassing the 2^nd opposite party.  The complaint is not maintainable either in law or on facts and is liable to be dismissed in limine.  The averments made in the complaint are baseless and are made only with the intentions to defame the 2^nd opposite party and hence, this complaint is liable to be dismissed on this ground also.  The 2^nd opposite party reiterates that the complainant is not a consumer of this answering opposite party under the provision of the Consumer Protection Act and therefore it is submitted that the complainant has wrongly arrayed this opposite party No.2 as an opposite party in the instant complaint and hence the complaint is bad for mis-joinder of party and that there is no privity of contract between the complainant and 2^nd opposite party and therefore, the complaint is not maintainable either in law or on facts and is liable to be dismissed in limine against the 2^nd opposite party and the 2^nd opposite party does not sell any products to end consumers.  The 2^nd opposite party is a wholesaler and is involved in B2B sales and hence this complaint is liable to be dismissed for mis-joinder of parties. The opposite party submits that complainant had purchased the product from one online seller and the same is evident from the invoice copy annexed by the complainant.  The contract of sale is only between the said seller and the complainant and hence the 2^nd opposite party cannot be held liable for any liability arising out of such contract and that “Flipcart India (P) Ltd. in the present complaint is neither manufacturer of any product by its own nor provides any platform to the end-customers for making purchases.  The complainant appears to be aggrieved with marketplace platform “flipkart.com” which is owned and operated by a separate entity  incorporated under the Companies Act, under the name of Flipkart Internet Private Limited which is distinct and separate from the 2^nd opposite party and that the complainant may not be aware of the independent status of the 2^nd opposite party from the seller or flipkart internet Pvt. Ltd. and therefore, the complainant have made 2^nd opposite party as a party to the present complaint and that the 2^nd opposite party have no concern/relation whatsoever, with the complainant.  The same was communicated to the complainant through reply to legal notice dated 31-12-2015 and that the 2^nd opposite party is not the seller of the product and the warranty on the product is extended by the Xiaomi (manufacturer) i.e., opposite party No.1 and sold by the 3^rd opposite party and not by this 2^nd opposite party.  The warranty terms and conditions are also formulated by Xiaomi and not by this 2^nd opposite party and it is a wholesaler and is involved in B2B sales.  The 2^nd opposite party is not the manufacturer or authorized service centre of the product under dispute.  The products carry warrantee issued by the respective manufacturers.  In the instant case the product is manufactured by “Xiaomi” and the product carries manufacturer’s warrantee against manufacturing defects subject to the terms and conditions determined by them only hence the complaint is bad of mis-joinder of party.   Hence, the opposite party prays the Hon’ble Forum may be pleased to dismiss the complaint.

 

3)   The brief facts of the counter/written version of the 3rd opposite party are as follows:

 

  The 3^rd opposite party submitted that it is W.S.Retail Services Private Limited, is a company incorporated under the Companies Act, 1956, having its registered office, Bangalore, Karnataka.  The opposite party submit that the  1^st opposite party is an online reseller and one of the registered sellers on the market place website www.flipkart.com and the 3^rd opposite party as a reseller, its involvement in the entire transaction is limited only to selling the products of various manufacturers to the end consumer and the 3^rd opposite party is an online reseller registered as a seller on flipkart.com and the opposite party No.3 is not a manufacturer but only an online retailer and the products sold by 3^rd opposite party carry warrantee issued by the respective manufacturers.  The opposite party further submits that the present case the mobile phone is manufactured by XIOMI/1^st opposite party and the mobile phone carries the warranty issued by the manufacturer against manufacturing defects subject to the terms & conditions determined by them only.  It is pertinent to mention over here and reiterate that the warranty is not provided by opposite party No.3 and is provided by the manufacturer only and further the product was delivered to the complainant in a sealed box condition as it was received from the manufacturer and further the complainant never approached the 3^rd opposite party No.3 regarding the concern within the 30 days replacement period.  The opposite party stating that the complainant in order to extract undue money through this complaint has foisted this false complaint against the 3^rd opposite party and that under order –I, Rule-10(2) of the Civil Procedure Code, 1908, the Hon’ble Court has the power to add or strike out a particular party in order to enable the court effectually and completely adjudicate upon and settle all the question involved in the complaint So, the 1^st opposite party would be in a better position to explain the mobile defect and the terms of the warranty issued by it.  This opposite party submits that the 3^rd opposite party is not the manufacturer of the subject mobile phone but only a reseller of it.  So, the 3^rd opposite party prays the Forum that there are no merits in the complaint has filed and the same being devoid of merits, deserves to be dismissed with exemplary costs.

 

4.   After admission of the complaint, notices were issued to opposite parties and written versions of opposite party Nos. 2  and 3 filed and 1^st and 4th opposite parties remained absent.

 

5.  The complainant filed his affidavit on 07-11-2016 as PW1 in support of his case and got marked Exs.A1 to A6 and also filed written arguments whereas the 3^rd opposite party filed its affidavit on 04-10-2016 as RW1 and got marked Ex.B1.

 

6.  Heard arguments of the complainant and opposite parties, perused the pleadings and documentary evidence placed on record.

 

7.      The points that arise for determinations are:

       1) Whether there is deficiency in service on the part of the

           opposite parties as pleaded?

        2) Whether the complainant is entitled for the reliefs sought for?

        3) To what relief?

 

8.   POINT NO.1    As per the pleadings and evidence on the record, we can understand that the complainant placed an order to the 2^nd opposite party through online and purchased XIOMI smart phone worth of Rs.9,999/- under Ex.A1.  The 2^nd opposite party delivered the smart phone through 4^th opposite party to the complainant on 22-10-2015.  In this case, the complainant states that the 2^nd opposite party furnished 1 year warranty and 30 days period for replacement to the said mobile phone.  To prove the same the complainant did not file any documentary proof.  The complainant further states that the cell phone functioned few days and later the same got camera and torch defect, even though the mobile was within the warranty period.  In that connection, the complainant did not file any warranty card.   So, in the absence of the documentary evidence we cannot believe the version of the complainant.  The complainant states that he sent mail messages to the 2^nd opposite party informing the cell phone defect but he did not file any documentary proof in that regard.  Further, the complainant alleged cell phone defect but he did not file any cogent evidence or expert opinion relating to cell phone.  Any complaint   pertaining to defective goods there is a procedure contemplated under C.P.Act under section-13 of Consumer Protection Act, 1986 –- Complaint on account of defects –complaint filed on the ground that the goods purchased were defective – requirement under section 13 that the court must obtain sample from the complainant for proper testing etc.  A bare reading of clause ( c ) would show that the District Forum with a view to get proper analysis or test done, should obtain the sample of goods from the complainant and then follow the procedure prescribed in the said clause.  Our apex court discussed the said procedure in M R F Ltd. Vs. Jagadish Lal reported in  AIR 1999 (SC) 2035.  In this case, the complainant neither failed to deposit the alleged defect cell phone before this Forum till today nor made any efforts to send the same to expert for getting opinion.  

9.    In the above the facts and circumstances of the case, we can presume that the complainant’s case is also in doubtful nature.  We can also presume that the complainant is using the cell phone for his needs since date of its purchase. In the absence of cogent evidence relating to cell phone of complainant not entitled the reliefs. The same was discussed in I(2017) CPJ 25 (Uttarakhand State Consumer Disputes Redressal Commission, Dehradun, Samsung India Electronics (P) Ltd. Vs. Ramgopal Gupta and another, Consumer Protection Act, 1986 – Sections 2(1)(f), 2(1)(g), 15 – Goods – washing Machine – Defects – Replacement or refund of amount sought – Alleged deficiency in service – District Forum allowed complaint – Hence appeal.  No cogent or reliable evidence produced to show inherent manufacturing defect in washing machine – Manufacturer or dealer cannot be directed to either replace the product with new one or to refund the cost – District Forum erred in amending penalty – Defects not proved – Impugned order set aside.

 

10.     In view of the above decisions and discussion and we are of the view that the complainant failed to prove the deficiency of the service on the part of the opposite parties.  So, we answered the point accordingly.

 

11. POINT NO.3:   In the result, the complaint is dismissed but without costs.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 2nd day of MAY, 2017.    

 

              Sd/-                                                                          Sd/-

         MEMBER                                                                  PRESIDENT (FAC)

 

  APPENDIX OF EVIDENCE

 

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

07-11-2016

:

Basetty Srinivasa Rao, S/o.Subrahmanyam, Hindu, aged about 53 years, profession, residing at Sgilavari Street, Fathekhanpet, Nellore.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

04-10-2016

Swati Singh W/o.Ashutosh Singh, aged about 29 years, Occ: Service, O/o.WS Retail Services Pvt.LTd., Ware Office Address: No.42/1&43, Kacherakhanahalli, Jadigenahalli Hobli, Hoskote Taluk, Bengaluer- 560065 Karnataka State.

 

 

 

 

 

                                                                        

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	18-10-2015	:	Copy of Retail Invoices/Bill for Rs.9,999/- in favour of the complainant.
Ex.A2	31-12-2015	:	Office copy of the legal notice issued by the complainant to the 2nd opposite party along with one registered post receipt (original).
Ex.A3	-	:	Computerized print of detailed track events for RN6483384251N.
Ex.A4	04-02-2016	:	Office copy of the legal notice issued by the complainant to the 2nd  and 3rd opposite parties along with two registered post receipts (originals).
Ex.A5	-	:	Computerized print of detailed track events for RN6483480651N.
Ex.A6	18-01-2016	:	Reply notice issued by the 2nd opposite party to the complainant.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                          

 

Ex.B1

19-09-2011

:

Photostat copy of Form-1 Certificate of Incorporation issued by Registrar of Companies, Karnataka in favour of the 2nd opposite party along with terms and conditions.

 

               

                                                                               Id/-

                                                                      PRESIDENT (FAC)

 

 

Copies to:

 

1. Sri Tanjavuru Srinivasa Rao, Advocate, Nellore.

 

2. M/s.Milind G.Gokhale , Nandini S Bilolikar, Apurva M Gokhale,  Balanarsimha Bethi, Advocates Plot No.503, 505, Citadel APTS, Vittalwadi lane, Himayat Nagar, Hyderabad – 500029.

 

3. The Managing Director, Xiomi Technology India Private Ltd., 8^th Floor, Tower-I, Umiya Business,Bay Marabahalli, Sarjapur Outer Ring Road,

Bangalore, Karnataka State.

 

4. EKART Logistics, Near: Kanaka Mahal, Opp: Chandana Show Room,

Subedarpet Road, Nellore City.                                            

 

 

Date when order copies were issued: