BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 284 of 2023
Date of Institution: 13.07.2023
Date of Decision : 30.08.2024
Dr. Ikjot Singh aged about 26 years son of Shri Avnish Singh, resident of C-Block, Sirsa.
……Complainant.
Versus
1. Anker Innovations Limited, Room 1318-19, Hollywood Plaza, 610 Nathan Road, Monglok, Kawloon, Hong Kong, through China Embassy in India, through Ministry of External Affairs, Administration Jawahar Lal Nehru Bhawan, 23-D, Janpath, New Delhi- 110011.
2. Anker Innovations Limited, Bangalore, Ist Main road, Bengaluru (Karnatka)- 560024, through its MD/ Director/ Responsible Person.
3. Shreyash Retail Private Limited, 2nd Floor, Plot No. 82, Okhla Industrial Estate, Phase III, New Delhi – 110020 through its MD/ Director/ Authorized person.
2nd address: Sunsat warehousing Pvt. Ltd., Hadbast No.23, Village Sanpka, Tehsil Farukhnagar, Distt. Gurugram- 122503.
4. Flipkart India Private Limited, Ozone Manay Tech Park, 56/18 & 55/09, 7th Floor, Garvebhavipaya, Hosur Road, Bangalore- 560068, through its Manager/ authorized signatory.
...…Opposite parties.
Complaint under section 35 of C.P. Act, 2019
Before: SH. PADAM SINGH THAKUR…….PRESIDENT
MRS. SUKHDEEP KAUR…………MEMBER
SH. OM PARKASH TUTEJA………MEMBER
Present: Sh. Manbir Singh, Advocate for complainant.
Opposite parties no.1 and 2 already given up.
Opposite parties no.3 and 4 already exparte.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as Ops).
2. In brief, the case of complainant is that op no.1 is manufacturer of product sound core q35 headphones, op no.2 is their sale office in India, op no.3 is retailer/ reseller for the product sold and delivered by through op no.4. The complainant through online purchased new blue sound core q35 life headphones for a sum of Rs.7,999/- from the flipkart website vide order and invoice dated 29.05.2022 and same was delivered to complainant at Sirsa through op no.4. That this product was having warranty of 18 months and all the ops were/ are responsible for ensuring the warranty of the product sold, sent, delivered to the customer including complainant. It is further averred that complainant faced hardship and difficulties due to manufacturing defect soon after purchase and matter was brought into the notice of customer support, but no response was received. Thereafter, complainant sent a email and raised his grievances on the app of ops and sent mail separately to them, upon with his grievances were heard and the issues were known functioning of buttons on the side of headphones, leakage of sound etc. and in the last the product was taken back by op no.2 through their messenger/ courier service/ service provider. It is further averred that product was taken back by executive/ service provider from complainant in fit state of condition in all respect except the defect pointed above for the purpose of replacement of product and product was damaged in transit and from the customer support manager of op no.1 complainant received a message that the colour was out of stock and pink colour was available and product was in warranty upon which complainant vide his mail requested for blue, black or silver colour but not pink colour or sought refund of payment of product including harassment faced by him. That thereafter complainant was stunned to receive a message that they will send the product after repair and a call was received that in addition to this repair product they considering the case of complainant to be a special case being a product with a doctor and inconvenience to him they will provide new one as well. That complainant requested ops to refund back the amount with compensation or to replace the product with warranty and he was not interested in keeping the damaged/ broken/ repaired product to be replaced with new one. It is further averred that till today complainant did not receive the q35 headphones new product either of blue or black colour despite written commitment and admission about damage of the product in the transit by their executive or service provider which was taken for replacement rather damaged product with minor repair has been returned back to the complainant and as such the act and conduct of the ops clearly amounts to deficiency in service and unfair trade practice due to which complainant has suffered unnecessary harassment and mental tension. Hence, this complaint.
3. Notice of the complaint was issued to the ops. Ops no.1 and 2 could not be served for want of correct address and ultimately they were given up by learned counsel for complainant due to non availability of their correct address.
4. Op no.3 filed written statement taking certain preliminary objections. It is submitted that answering op is engaged in the sale of goods manufactured and produced by other manufacturers/ producers. The op no.3 is a registered seller on the website “Flipkart.com”. As a reseller of products manufactured by other manufacturers, involvement of answering op in the entire transaction is limited only to selling the products of other various manufacturers and its role comes to an end as soon as the product is delivered by a third party courier service provider. In the present complaint, the manufacturer is ops no.1 and 2 and op no.3 is neither the manufacturer nor the service centre engaged by the manufacturer, hence no cause of action lies against op no.3. It is further submitted that complainant himself has admitted that op no.2 took back the product and has mentioned that op no.2 has manufactured defective headphones and op no.2 failed to give proper service to the complainant and that there are no specific allegations against answering op. It is further submitted that products sold by answering op carry warranty issued/ provided by the respective manufacturers against manufacturing defects subject to the terms and conditions determined by the manufacturers only. The complainant himself knows that the alleged defect comes under the purview of the manufacturer (Ops no.1 and 2) under their respective policy as the warranty of the answering op expired. Hence, the complainant reached ops no.1 and 2 whenever the alleged issue arose and the grievance of complainant is only against ops no.1 and 2. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. OP no.4 also filed written version raising certain preliminary objections that 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 independent third party sellers use the flipkart platform to list, advertise and offer to sell their products to the users/ buyers and that answering op falls within the definition of an “intermediary” under Section 2 (1) (w) of the Information Technology Act, 2000 and is protected by the provisions of Section 79 of the Information Technology Act, 2000. It is further submitted that actual seller of the product is a third party seller (OP no.3) and grievance of complainant is with respect to the alleged defects in the product and after sale services provided by the manufacturer i.e. ops no.1 and 2 or the authorized service centre engaged by the manufacturer which is not impleaded as a party. It is further submitted that there are no specific allegations against answering op. That complainant himself admitted the fact that product in issue is manufactured by ops no.1 and 2 and he has directly approached ops no.1 and 2 who refused to provide services, meaning thereby that once the complainant has booked the product through answering op and which was sold and delivered by the Seller (OP No.3), thereafter the liability to provide after sale serves comes on the manufacturer i.e. ops no.1 and 2 and its authorized service centre. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
6. The complainant in evidence has tendered his affidavit Ex. PW1/A and documents Ex.P1 to Ex.P4.
7. When the case was fixed for evidence of ops no.3 and 4 subject to last opportunity, none appeared on behalf of ops no.3 and 4 and as such they were proceeded against exparte.
8. We have heard learned counsel for complainant and have gone through the case file.
9. From the tax invoice Ex.P1, it is evident that on 29.05.2022 complainant purchased Headphone in question from op no.3 for a sum of Rs.7999/- through online services and said headphone is manufactured by ops no.1 and 2 but the invoice is issued by op no.3. The complainant has alleged that during warranty period there were issues regarding functioning of the headphones and product in question was taken back by service provider of op no.1 from complainant but same was damaged in transit and ops have failed to refund the amount of headphones to the complainant despite his several requests. There is nothing on file to disbelieve the version of complainant. The ops no.3 and 4 despite appearance have failed to lead any evidence in support of their version despite availing various opportunities and ultimately opted to be proceeded against exparte. Although op no.3 has asserted that it simply resells the products of other manufacturers but the invoice in question is of op no.3 and manufacturers i.e. ops no.1 and 2 could not be served due to non availability of their address and even op no.3 who purchases the products from manufactures in bulk and then supply the same to its customers with its invoice also failed to provide addresses of ops no.1 and 2 and therefore, op no.3 who is seller of the defective headphones to the complainant is responsible to refund the amount of headphones to the complainant because complainant has privity of contract with op no.3 and at the most op no.3 can seek refund of the amount from ops no.1 and 2 after payment of amount to the complainant.
10. In view of our above discussion, we allow the present complaint qua op no.3 and direct the op no.3 to make refund of the amount of Rs.7999/- to the complainant alongwith interest at the rate of @6% per annum from the date of filing of present complaint i.e. 13.07.2023 till actual realization within a period of 45 days from the date of receipt of copy of this order. We also direct the op no.3 to further pay a sum of Rs.5000/- as composite compensation for harassment and litigation expenses to the complainant within above said stipulated period. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President,
Dated: 30.08.2024. District Consumer Disputes
Redressal Commission, Sirsa.
