DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 30^th day of November, 2023

                                                                   Filed on: 24/11/2017

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member Smt.Sreevidhia.T.N                                                             Member

C.C. NO. 468/2017

COMPLAINANT

Vineesh, Manianattu Nikarthil, Thirumala Bhagom P.O., Cherthala, Alappuha,

VS

OPPOSITE PARTY

1. Xiaomi Technology India Pvt. Ltd., C/o. IKeva Business Centre, 8^th Floor, Umiya Business Bay, Tower 1, Cessna Business Park, Kadubeesanahalli, Marathahalli-Sarjapur Outer Ring Road, Bangalore 560103.

(Rep. by Adv.s Alphin Antony, Aadithyan S. Mannali, Visakh Antony & Augustine Binu, M/s. Lawyer & Lawyer, 1^st Floor, Mehree Complex, Pulleppady Junction, Kochi 35)

2. Flipkart Internet Pvt. Ltd., Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala Industrial Layout, Bangalore 560034.
3. TVS Electronics Ltd., 39/4113, Ground Floor, Sky Bright, MG Road, Ravipuram, Kochi 682026.
4. WS Retail Services Pvt. Ltd., Ozone Mansy Tech Park, No. 56/18, B Block, 9^th Floor, Garvebhavipalya, Hosur Road, Bangalore 560068.

(Rep. by Adv. Jithin Paul Varghese

F I N A L    O R D E R

V. Ramachandran, Member:

This consumer complaint is filed by Vineesh, Manianathu Nikarthil, Cherthala, Alapuzha alleging deficiency of service and unfair trade practice from the side of the opposite parties and therefore seeking for getting compensation for the same. The complainant states that on 21/05/2016 the complainant bought a Xiaomi Brand Redmi 2 Prime with IMEI Seial No. 860848036739366 through his friend Vinod Misra from Flipkart Internet Pvt. Ltd., the 2^nd opposite party for a total consideration of Rs.6,999/- as per bill No. #BLR_WFLD20160500456451 dated 21/05/2016. The complainant while using the above handset noted that the mobile handset was not working properly and regularly showing problem in connection with “on/off” fault. The complainant contacted the 1^st opposite party’s customer service and was directed to repair the same through the 3^rd opposite party, the authorised service centre of the 1^st opposite party. The 1^st opposite party have delivered the mobile handset to the complainant with one year warranty and offered the repair and service of the mobile handset through the 3^rd opposite party without any cost. Believing the words of the 1^st opposite party on 26/11/2016 the complainant approached the 3^rd opposite party to repair the said mobile handset for the complaints of Power “On/Off” fault and the 3^rd opposite party issued service Order No. WXIN1611260000155 dated 26/11/2016 to the complainant. The 3^rd opposite party assured the complainant that they would repair the said mobile handset as soon as possible and guaranteed that the said mobile will work properly without any defects.

On 19/12/2016 the 3^rd opposite party informed the complainant that they have completed the repair and promised that the mobile handset is working without any defect. The complainant was utterly surprised that the 3^rd opposite party without reference to the warranty conditions of the 1^st opposite party and the notifications of online purchase website of the 2^nd opposite party, the 3^rd opposite party demanded the complainant to pay Rs.2,700/- towards the repair charges done by the 3^rd opposite party. The complainant was forced to pay an amount of Rs.2,700/- to the 3^rd opposite party as Rs.2,149/- towards the charges of LCM Module H2X, Rs.149/- towards the charges of Daughter board and Rs.250/- as Cell phone repair and also paid Rs.152/- as VAT and service tax. The complainant had entrusted the mobile handset to the 3^rd opposite party for the repair of power on/off fault. But instead of repairing the power on/off fault, the 3^rd opposite party had done some other work. Even though the 3^rd opposite party has illegally collected an amount of Rs.2,700/- from the complainant without complying with the warranty conditions. The complainant’s mobile handset had not repaired and the phone showed the same complaint recurring thereafter. Without any other option complainant again approached the 3^rd opposite party and demanded to repair the same. Considering the complainant’s demand the 3^rd opposite party on 10/12/2016 collected the mobile handset for repair. It is to be noted that the 3^rd opposite party collected the mobile handset for repair and further illegally demanded Rs.3,000/- as the repairing cost. The defective mobile handset is even now kept with the 3^rd opposite party till this date without repairing the same. Even the complainant’s mobile handset is not repaired and opposite parties are illegally infringing the warranty conditions. On the basis of the above the complainant approached this Commission and prays to replace the defective mobile with a new one along with other reliefs.

Upon notice from the Commission opposite party appeared and filed their version except 3^rd opposite party. The 1^st opposite party in their version contended that On November 26, 2016 the complainant approached the authorised service centre of 1^st opposite party with a complaint regarding the product. The technicians of the authorised service centre of the 1^st opposite party duly received the product and recorded the issues in the service job sheet No. WXIN1611260000155 and provided the job sheet to the complainant. After examining the product for defects, it was ascertained that the product has suffered customer induced damage. The technicians of the authorised service centre duly repaired the product on payment of the repair charges by the complainant since the product was out of warranty due to the customer induced damage. The complainant approached the authorised service centre of 1^st opposite party again with charging issues in the product. The technicians of the authorised service centre of the 1^st opposite party duly received the product and recorded the issues in the service job sheet No. WXIN16112190002894 and provided job sheet to the complainant. After examining the product for defects, it was ascertained that the product has suffered customer induced damage. The technicians of the authorised service centre duly informed that since the product has suffered customer induced damage, the product is now out of warranty and the complainant would be required to pay costs for repairing the damage caused to the product. The complainant however refused to pay the costs for repairing the damage caused to the product and refused to collect the product from the authorised service centre.

The 2^nd opposite party in their version contended that the 2^nd opposite party does not sell any goods on its own. Goods are sold by various 3^rd party sellers registered on the website. The 2^nd opposite party is a mere intermediary and only facilitates the selling of goods between the seller and the buyer. It is the seller who had the sole responsibility to deliver the product to the complainant as per the delivery terms. The opposite party No. 2, being mere an intermediary and not the seller of the product sold to the complainant, in no way, assumes liability arising out of alleged delivery of the product, if any. Therefore, under the circumstances and for the reason stated above, it is submitted that there is no dispute as contemplated under the Consumer Protection Act between the complainant and 2^nd opposite party and the reliefs prayed for being unreasonable and unsustainable in law, the complaint is only liable to be dismissed in limine against the 2^nd opposite party.

Thereafter the complainant approached 3^rd opposite party and 3^rd opposite party had agreed to repair the phone as per the version of the complainant. The fault of the phone was that the power on/off was not properly working and showed fault and 3^rd opposite party issued service order dated 26/11/2016 to the complainant. It is further stated by the complainant that the 3^rd opposite party had demanded for Rs.2,700/- towards the repair charges along with other payments even though the phone was under warranty period.

4^th stated that ‘It is submitted that the grievance of the complainant is against the manufacturer and the servicing centre only and not a single allegation have been made in present complaint against 4^th opposite party. Thus, no cause of action ever arose against the opposite party No. 4 and in favour of complainant in respect with present grievance of complainant.   

The complainant filed proof affidavit and produced 7 documents and which are marked as Exbt. A1 to A7. Exbt. A1 is the copy of retail invoice for Rs.6,999/-, Exbt. A2 is the copy of service order dated 26/11/2016, Exbt. A3 is the copy of retail invoice dated 09/12/2016, Exbt. A4 is the copy of lawyer notice issued by the complainant, Exbt. A5 is the postal receipts, Exbt. A6 AD card and Exbt. A7 is the reply notice received from the opposite party.

The points for consideration are:

1. Whether the complainant is sustained to any sort of deficiency of service, or unfair trade practice from the side of the opposite party?
2. Whether the complainant is eligible to get any relief from the opposite party?
3. Cost of the proceedings if any?

The Commission upon going through the complaint, version, documents produced by the complainant has observed that the complainant is a beneficiary since the mobile phone is seen purchased by Sri. Vinod Misra on payment of Rs.6,999/- ordered through Flipkart is used by the complainant and all other documents of communication and also the service particulars are in the name of the complainant himself and therefore the complainant is the beneficiary of the opposite parties and hence the complaint is maintainable. Since the complainant was directed to the 3^rd opposite party by the 1^st opposite party for service and repair of the phone and also taking into account that the phone had not been repaired and returned by the opposite party even infringing the warranty condition. Hence the opposite parties are liable to compensate the complainant for the loss sustained.

Complainant had proved with evidences his case and opposite parties had not established without doubt regarding the authenticity of the arguments of the complainant and also due to the fact that the allegation regarding the fault of the phone has not been denied even without the report of an Expert Commissioner the complaint is proved on merit by the complainant. It can be seen that the phone was suffering from fault and the complainant had established point No. 1 is in favour of the complainant and hence the following order is passed.

1. The opposite parties shall return the mobile phone with another brand new phone of same price, and if that model is not available, the opposite parties shall give back the price of the phone.
2. The opposite parties shall pay Rs.15,000/- (Rupees fifteen thousand only) as compensation to the complainant.
3. The opposite parties shall pay Rs.10,000/- (Rupees ten thousand only) as cost of proceeding to the complainant.

The opposite parties shall be jointly and severally liable to comply with the above order within 30 days from the date of receipt the copy of this order failing which amount ordered vide (1) and (2) above shall attract interest at the rate 9% from the date of order till the date of realization.

Pronounced in the Open Commission on this the 30^th day of November, 2023

V.Ramachandran, Member

Sd/-

D.B.Binu, President

Sd/-

Sreevidhia.T.N, Member

Forwarded/by Order

Assistant Registrar

Appendix

Complainant’s Evidence

Exbt. A1:    Copy retail invoice for Rs.6,999

Exbt. A2:    Copy of service order dated 26/11/2016.

Exbt. A3:    Copy of retail invoice dated 09/12/2016.

Exbt. A4:    Copy of lawyer notice issued by the complainant.

Exbt. A5:    Postal receipt

Exbt. A6:    AD card

Exbt. A7:    Copy of reply notice

Opposite party’s Exhibits

Nil

Despatch date:

By hand:     By post                                                  

kp/

CC No. 468/2017

Order Date: 30/11/2023