DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JHARSUGUDA

                           CONSUMER  COMPLAINT  CASE NO. 62 OF 2015

Nitin Sharma (45 Yrs.),

S/O: Rajendra Kumar Sharma,

R/O: Flat No.1-603, Bhushan Power & Steel Township,

PO/PS: Thelkoloi, Dist- Sambalpur, Odisha.

Mobile No. 8763265895

E-mail: nitinsharma14@yahoo.co.in...……..…………..……..………. Complainant.

                                           Versus 

1. Flipkart.com, WS Retail Services Pvt. Ltd.,

Warehouse Address: No. 42/1 & 43,

Kacherakanahalli Village, JadigenahalliHobli,

Hoskote Taluk, Bangalore,

Karnataka-560 067. E.mail:  

2. The Executive Director ( Services),

Lenovo India Pvt. Ltd.,

Ferns Icon, Level-2, Doddenakund Village,

Marathhalli Outer Ring Road,

Marathhalli Post, Kr PuramHobli,

Bangalore-560 037. E.mail.:  

3. The Proprietor,

Sprimon Technologies (Service Centre),

Shop No. GC+151, 1^st Floor, RCMS Complex,

Panposh Road, Rourkela,

Dist: Sundargarh, Odisha- 769004.…….……….......................... Opp. Parties.

Counsel for the Parties:-

For the Complainant                               Self.

For the Opp. Party No.1                        Shri S.K.Das,Adv. & associates.

For the Opp. Party No.2                        Shri D.K.Mohanty,Adv. & Associates.

For the Opp. Party No. 3                       Self( Ex-Parte).

Date of Order: 05.05.2016

Present   

                                                                                      1. Shri S.L. Behera, President.

                                                                                       2. Shri  S.K.Ojha, Member.

Shri S.K. Ojha, Member: - The complainant’s case in brief is that, he had purchased one “Lenovo Vibe Z2 Pro” mobile handset (smart phone) by paying ₹ 32,999/- only from the O.P.No.1 through online by making online order bearing Order No. OD001290547128606501 dtd.15.11.2014. The said hand set has one year warranty from the date of purchase.  The O.P.No.2 is the manufacturer and the O.P.No.3 is the authorized service centre of the said hand set.  The said hand set started showing defects while operating.  The complainant informed and submitted the hand set before the O.P.No.3 on dtd.19.04.2015 for repairing.  The O.P.No.3 repaired by replacing to a new Mother Board having IMEI No.864784020334425.  The hand set again started defects and the complainant again submitted to the O.P.No.3 for repairing, this time the display screen was replaced to a new one having part No.5D69A6N2J8 () which was delivered on dtd.09.07.2015 ( three months approx. ).  Still the handset was not free from defect and once again submitted to the O.P.No.3 on 03.08.2015. This time one another display screen was replaced to a new one bearing part No.5D29A6N2J6().  Having repaired several times the said handset was not free of defect and once again submitted to O.P.No.3 for repairing.  The complainant requested to replace the defected hand set to a new one as it is under warranty period and contacted several times regularly with the O.Ps through telephonic, e-mails but till date he is receiving nothing except assurance.  The hand set is still with the O.P.No.3.  Seeking for proper relief the complainant knocked the door of this Hon’ble Forum with prayer for compensation by filing this complaint case with related documents.    

            After being noticed through this Forum, the O.P.No.1 and O.P.NO.2   appeared before this Forum, filed their written statements along with related documents, where the O.P.No.3 failed to either appear or filing his written version and ultimately stand ex-parte. The O.P.No.1 denied the allegations of the complainant and submitted that the hand set was purchased by one Ms. Dyuti Sharma and the hand set was delivered at Visakhapattnam not in Jharsuguda as such it not maintainable. The O.P. No.2 also challenged on territorial jurisdiction of the case and submitted that, with in the period of warranty the hand set was repaired several times and it does not mean to replace the goods instead of giving service to the product. Both O.Ps prayed for dismissal of the case.

Heard the matter in length and on perusal of case record including materials available, it is noted that the complainant has purchased one “Lenovo Vibe Z 2 Pro” mobile handset (smart phone) through online purchase system by placing online order to the O.P.No.1 (Flipkart.com, WS Retail Services Pvt. Ltd.) on dtd.15.11.2014 from Jharsuguda and mentioned Shipping / Billing address in the name of one of his family member, Dyuti Sharma, D.No.11-17/63, Flat No. 501 Park View Apartment, ………., Madhurawada, Vishakhapatnam (A.P) and paid ₹ 32,999/- only. The said handset covers one year warranty from date of purchasing.  The O.P. No.2 is the manufacturer and O.P.No.3 is the authorized service centre. The O.P.No. 3 kept silence in this case it reveals that he has nothing to say in this case. But O.P.No.1 and O.P.No.2 vehemently challenged on maintainability of the case on the ground of territorial jurisdiction which is very much important before proceed towards merit of the case.

As per the provision of the Consumer Protection Act, 1986,  U/S. 11(2)

       A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

1. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

2. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

3. the cause of action, wholly or in part, arises. 

In this case, the product has been purchased through online i.e. through World Wide Web.  The O.Ps doing / carries on their business which is not limited to any boundary of place, State so also to country rather carries on business worldwide. The complainant made online order from Jharsuguda and mentioned shipping / billing address at Vishakhapatnam, thus, cause of action in part also arises at Jharsuguda. Although the billing address is in the name of one Dyuti Sharma who is one of his family member and for establishment of ‘consumer’ the provision of U/S. 2(1) (d) of the Consumer Protection Act, 1986 is affected which held that,

"consumer" means any person who—

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;

In this case one of his family member namely, Dyuti Sharma has purchased the mobile handset (smart phone) but on approval of the said Dyuti Sharma the complainant was using the said smart phone for his personal use and paid the consideration amount to the O.P.No.1 and all the correspondences through either telephonic or through e-mails are made with the complainant. The O.P.s never objected in corresponding with complainant.

Considering the above-mentioned grounds it is a very much fit case and maintainable in the eye of law for adjudication before this Hon’ble Forum.

So far as the facts of case is concerned, after purchasing of mobile handset, it occurred defects with in the period of warranty and repaired several times by replacing even Mother Board and two times replacement of Display Screen and it is still pending for repair, it means the defects are not been removed yet. It denotes towards nothing but remaining of some inherent defects in the handset.

The complainant chosen such an expensive handset (smart phone) for his use and references by attracting towards it features, look etc. But since the date of purchase he is not able to use the handset properly or say the very purpose of purchasing of the said handset in particular is not fulfilled.

The O.P.No. 1 is the marketing agency doing online marketing of different brands. He shipped the proper product in proper time and in proper place of billing address, as such no any deficiency in service found on the part of O.P No.1. The O.P No. 3 is the authorized service centre of O.P.No.2. The case centered within O.P.No.2 and O.P.No.3. The O.P.No.2 manufactures and issues Warranty Card of his products. The handset repaired several times and defects could not be removed yet. The O.P.No.2 neither given defect free handset nor given new handset in place of defected handset.

            As per the above observations and analysis, the activities of O.P No. 2 found to be gross unfair trade practice and deficiency in service towards complainant, hence we are inclined to allow the complaint petition with directions in form of order as follows :

ORDER

The O.P.No.2 is hereby directed to give a new defect free mobile handset (smart phone) in place of old defected handset of equivalent price of ₹32,999/- only or refund ₹32,999/- (Rupees thirty-two thousand nine hundred ninety nine ) only to the complainant along with pay a sum of ₹ 5,000/- ( Rupees five thousand) only towards harassment, mental agony including cost of the case with in 30(thirty) days from the date of receiving of this order, failing which the O.P. No. 2 shall be liable for interest @10% p.a on the above-mentioned awarded amount till realization.

Accordingly the case is disposed of.

Order pronounced in the open court today on this the 05^th of May, 2016, copy of this order shall be communicated to the parties as per Rule.

                                              I Agree.        

                                            S.L.Behera, President                                S.K.Ojha, Member                                                                                             

                                   Dictated and corrected by me.

                                             S.K.Ojha, Member.