Delhi

North East

CC/8/2017

PRANAV DIKSHIT - Complainant(s)

Versus

CLOUD TAIL INDIA - Opp.Party(s)

04 Sep 2018

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 08/17

 

In the matter of:

 

	Parnav Dixit H.No. 34, Shiv Mandir Gali Maujpur, Delhi 110053	Complainant
	Versus
1           2         3           4	M/s. Cloudtail India Regd Office : Ground Floor, Rear Portion, H-9 Block B-1, Mohan Cooperative Industrial Area, Mathura Road, New Delhi 110044   M/s. HCL Service Ltd. R-42, FF, Opp. Metrol Pillar No. 46, Main Vikas Marg, Near Metro Pillar 43 Delhi 110092   M/s. Cloudtail India Pvt. Ltd. Corporate Office: 6th & 7th Floor, Divyasree Chambers, Wing `B’ , #11 `O’ Shaughnessy Road, Langford Town, Bangalore, Karnataka 560025   M/s. Xiaomi Tech Pvt Ltd. B-Block Embassy Tech Square Inside Cessana Business Park Marathahalli Outer Ring Road Kadubeesanahalli Bangalore 560 103	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

17.01.2017 04.09.2018 04.09.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated the case of the complainant is that on 07.04.2016 he had purchased a mobile Xiaomi Redmi Note 3 Dark Grey, 16 GB from Amazon Company  (online) vide order ID No. 171-0193474-2839579 for a sum of Rs. 9,998/-. It was stated by the complainant that the above mobile set worked properly for few months till Sept 2016. Thereafter, in beginning of October 2016 the complainant noticed that the above mobile set was working when in charging mode but without charging, the mobile set was not working. So the complainant on 05.10.2016, took the above mobile set at OP2 service centre where he was told that the battery and motherboard of the mobile is out of order and one week would be required to repair the same. However, when the complainant went to collect the said mobile after one week, he was told that his mobile set has not been repaired and after 4-5 visits, Op2 informed him that further 20 days were required for the repair of the mobile set. It has been submitted further that after 20 days on 28.10.2016, his mobile set was returned to him without letting him check the same on assurance by OP2 that it will work after being charged at home. However, when the complainant charged it at home, he found the earlier problem persisted without being repaired. Thereafter, the complainant went to the Kamla Nagar service centre, where he was informed that original parts of the said mobile set have been taken out and there were stitches that he should go to the same service centre where he had earlier gone (i.e. OP2). It has been submitted further by the complainant that on 03.11.2016 he went to the OP2 where he was told that since he had got opened his mobile set at some outside place, it cannot be repaired and the warranty was cancelled by Mr. Mahendra Pal Singh on the job sheet no. WXIN 1610050002943. Thereafter the complainant complained to customer care of Xiaomi, (Manufacturer of mobile), on 03.11.2016 vide complaint no. 161113004260 but he could not get any satisfactory reply followed by series of Emails exchange between sister of complainant and Xiaomi between 13.11.2016 to 29.12.2016 where on complainant grievance Xiaomi (MI India) advised him to send scanned copy of job sheet and invoice copy for action on his complaint. Lastly, complainant was asked by Xiaomi telephonically on 19.12.2016 to go to OP2 where he would be assisted. The complainant went to OP2 where Mr. Mahendra Pal Singh did not listen to him and misbehaved with him. The complainant  submitted the subject mobile set vide job sheet no. 612260000746 with OP2 on 26.12.2016 and never got it back. Therefore, the complainant was constrained to file the present complaint against the OPs praying for issuance of directions to the OPs to refund the cost of the mobile i.e. Rs. 9,998/- to the complainant alongwith Rs. 30,000/- as compensation for mental harassment and Rs. 20,000/-as litigation charges by the OPs. The complainant, being minor the complaint was filed by his father/ natural guardian.

The complainant has annexed copy of retail tax invoice/ cash memorandum amounting to Rs. 9998/- for purchase of the Xiaomi Redmi Note 3, copy of job sheet dated 05.10.2016, 26.12.2016, copy of e-mails exchanged between complainant’s sister and Xiaomi from 13.11.2016 to 29.12.2016 pertaining to repair of defective mobile.

2. Notices were issued to the OPs on 17.01.2017. OP1 and OP3 entered appearance on 15.03.2017 and filed its written statement. None appeared on behalf of OP2 despite service and was therefore proceeded against ex-parte vide order dated 18.04.2017.

In its written statement filed by OP1 and OP3 which are the seller and registered office of the seller respectively, OP1 and OP3 stated that it is carrying on business of sale of goods as a retailer and the registered seller on Amazon India Market Place. In its preliminary objections OP1 and OP3 while dealing with the definition of ‘defect’ under Section 2 (f) of CPA, “manufacturer” under Section 2 (j) of CPA and ‘service’ under Section 2 (o) of CPA took the defence that the subject matter of dispute in the present complaint is restricted to manufacturing defect in the mobile in question i.e. Xiaomi Redmi Note 3 which the complainant had purchased from OP1 and OP3 on the Amazon website and is perturbed by certain alleged manufacturing defects therein manufactured by Xiaomi Redmi Pvt Ltd and agitated by alleged deficient services provided by Xiaomi’s authorized service centre i.e. OP2 herein and on both the manufacturer and as well as the service centre, OP1 and OP3 has no control or say and further submitted that OP1 and OP3 did not provide any warranty of representation on the product or after sales services on the same. OP1 and OP3 relied upon the judgments of Hon’ble Supreme Court and Hon’ble NCDRC in which judgments have been held by the Hon’ble Supreme Court and Hon’ble NCDRC that dealer or retailer cannot be held liable for manufacturing defects in a product which is the liability of the manufacturer. OP1 and OP3 further contended that no services or after sale services were provided by them to the complainant which were the liability of OP2 as per terms of warranty provided by manufacturer and not OP1 and OP3 since the role of OP1 and OP3 as a reseller was limited to that of selling the product. OP1 and OP3 urged that the complaint is bad for non joinder of necessary party i.e. the manufacturer of the product Xiaomi since the main grievance of the complainant revolves against the manufacturing defects and deficiency in service provided by OP2 pertaining to the product. OP1 and OP3 further contended that the complainant has not filed the warranty card of the terms therein alongwith the present complaint despite alleging defects in the product during the warranty period. OP1 and OP3 admitted to having sold the subject mobile having being ordered by the complainant from it on 02.04.2016 which was delivered to him by the OPs but no assurance and warranty with regard to quality, specification or otherwise on the product was given by the OP1 and OP3 since the same was determined and provided by the manufacturer. OP1 and OP3 also contended that OP2 is not its authorized service centre and the complaint number and reference to customer service representative or e-mails exchanged between the complainant and the manufacturer do not pertain to OP1 and OP3. OP1 and OP3 filed compilation of judgments relied upon by it in defence of its stand as dealer or retailer not being held liable for defects in the product.

3. Rejoinder was filed by the complainant in rebuttal to the defence taken by OP1 and OP3 in which the complainant stated that the OP1 and OP3 have failed to disclose their connection with the manufacturer of the mobile set in question and denied the contention of OP1 and OP3 as having been wrongly impleaded in the array of parties on grounds that manufacturer and dealer are jointly and severally liable to pay damages and compensation since it was the duty of dealer and retailer to send the mobile set to the manufacturer and to replace the defective mobile set.
4. Evidence by way of affidavit was filed by OP1 and OP3 in reiteration of its defence and submitted that the relationship between Xiaomi Technology Pvt Ltd and itself was on principal to principal basis and neither party either assumes or is willing to assume any responsibility for any action or inaction on the part of the other regarding assurance, warranty, quality, specification or otherwise on the product which was the responsibility of the manufacturer.
5. Evidence by way of affidavit was filed by the complainant in reiteration of his grievance of having been given a defective mobile set on 07.04.2016 which worked only for six months and was never repaired by OP2 despite repeated visits and e-mails and finally was deposited with OP2 on 26.12.2016 never to be returned to complainant till date.
6. The complainant filed application for impleading the manufacturer of the subject mobile phone i.e. Xiaomi as OP4 in the present complaint and file amended memo or parties on 24.10.2017. The application was allowed and notice was issued to OP4 which was served on 15.11.2017. However none appeared on behalf of OP4 and OP4 was, therefore, proceeded against ex-parte vide order dated on 27.03.2018.
7. Written arguments were filed by the complainant. OP1 & OP3 in reassertion / reinforcement of their grievance / defence and orally argued as well.
8. We have heard the rival contentions of both the parties and have applied our judicial mind to the documentary evidence filed by both the parties and case laws relied upon OP1 and OP3.

It is not in dispute that the mobile set in question was purchased by the complainant through Amazon website (not impleaded) from OP1 and OP3 as registered vendor / seller on 07.04.2016 manufactured by OP4. However, the above mentioned mobile set became dysfunctional within six months of its purchase for which it was repaired twice by OP2 for battery and motherboard problem and was returned to the complainant on 28.10.2016. However the problem therein continued for which it had to be resubmitted in December 2016 with OP2 for same defects at which point in time the OP2 refused to accept the same for repairs free of cost i.e. under warranty by alleging the device to have been opened by some unauthorized centre. In the interim period from mid November 2016, the complainant through his sister was in continuous correspondence with OP4 regarding defects in the said mobile set for which he had deposited the same with OP2 and the customer service of OP4 was responding to the e-mails asking for scanned copy of jobsheet and invoice for further action but no action was taken till December 2016 as can be seen from the e-mails of complainant to OP4. The complainant thereafter visited OP2 again on 19.12.2016 and finally submitted the subject handset with OP2 on 26.12.2016. The entire sequence of events goes to prove that the mobile set in question was malfunctioning within six months of its purchase and the defects therein could not be repaired which goes to prove that there were inherent manufacturing defects therein.

OP2 did not appear to place on record its defence as to why the subject mobile set was not returned repaired to the complainant since it deposit in November – December 2016. OP4 also failed to appear in capacity of manufacturer of the mobile set in question to rebut the allegation of OP1 and OP3. As far as the role of OP1 and OP3 is concerned we do not find force in its contention that it was only a reseller of the products since monetary consideration was paid by complainant to OP1 & OP3 on the invoice raised on Amazon website which was not impleaded as a necessary party by the complainant though it was responsible for advertising the product i.e. the mobile set in question manufactured by OP4 of which OP1 and OP3 was a vendor registered with Amazon. Mere assertion that OP1 and OP3 had not given any services in terms of warranty or after sale service with respect thereto being the sole responsibility of the manufacturer and its authorized service centre i.e. OP4 and OP2 respectively cannot absolve or wash its hands of liability as seller of the mobile in question and receipient of its sale consideration by the complainant. OP2 & OP4 failed to appear and rebut the allegation leveled by the complainant of selling a defective mobile set and failing to repair the same despite it being under warranty and never returning it to the complainant which in our considered opinion is clear deficiency of service on the part of OP2 and OP4. OP1 and OP3 placed reliance on the judgment of Hon’ble Supreme Court in the case of Hindustan Motors Ltd Vs N. Siva Kumar decided on 20.08.1999 in which the Hon’ble SC had observed that for the manufacturing defects in the vehicle the dealer cannot be held liable. The liability must be borne by the manufacturer. The Hon’ble National Commission in the judgment of Abhinandan Vs Ajeet Kumar Verma I (2008) CPJ 336 (NC), relying upon the aforementioned judgment of Hon’ble Supreme Court set aside the order passed by SCDRC which had held the dealer liable for the manufacturing defect in VCP as legally unsustainable order and held that it will be the liability of manufacturer to compensate the complainant. The Hon’ble National Commission in Ess Pee Automotives Ltd Vs SPN Singh I (2015) CPJ 192 (NC) had relied upon the judgment of Hon’ble Supreme Court in Hindustan Motors Ltd Vs N. Siva Kumar an exonerated the dealer / appellant to the extent of manufacturing defects alleged in the vehicle holding that the manufacturer alone was responsible for the same.

9. However, the Hon’ble Supreme Court in the landmark case in Jose Philip Mampillil Vs Primier Automobile Ltd AIR 2004 SC 1529 had held that for manufacturing defect, manufacturer and dealer are jointly and severally liable. The said landmark judgment was followed/ relied upon by Hon’ble National Commission in  Ashoke Khan Vs Abdul Karim (2006) 1 CPR 173 (NC)  and reiterated the position that dealer / agent and manufacturer would be jointly and severally liable. The Hon’ble National Commission further observed in this case that though it is true that normally such liability with regard to manufacturing defect is to be borne by the manufacturer, that would not mean that the dealer is absolved from joint and several liability. The Hon’ble National Commission in the judgment of Mahantayya Vs M D Om Prakash of M/s Mahalakshmi Tractor 2006 (1) CPR 263 (NC) had observed that the manufacturer deals with the consumer or purchaser through its dealer or agents and held that for the wrongs committed by agent or dealer, the consumer is entitled to have reimbursement from the manufacturer / principal and the dealer / agent and the liability of manufacturer and dealer is joint and several.  

In light of the above mentioned case laws and settled proposition law therein, we cannot absolve OP1 and OP3 retailer from the liability / culpability in the present complaint and hold all the OPs (OP1, OP2, OP3, OP4) guilty of deficiency of service as vendor/seller/dealer, service centre, registered office of vendor/seller/dealer and manufacturer respectively for a selling defects mobile to the complainant, failing to rectify the defects therein and returning the same repaired to the complainant.

We therefore direct all the OPs jointly and severally to refund to the complainant the cost of the subject mobile Xiaomi RedmiNote 3 to the tune of Rs. 9,998/-, in addition to a cost of Rs. 3,000/- towards compensation for mental harassment and Rs. 2,000/- towards the cost of litigation within 30 days from the receipt of copy of this order, failing which penal interest @ 9% shall be levied awarded sum of Rs. 14,998/- payable by all OPs jointly and severally to the complainant from the date of this order till realization.

Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.

10.   File be consigned to record room.
11.   Announced on 04.09.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member