Delhi

North East

CC/211/2015

Kavish Kr. - Complainant(s)

Versus

Flip kart W S retailor service pvt. Ltd. - Opp.Party(s)

17 Apr 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. 211/15

 

In the matter of:

 

	Shri Kavish Kumar H.No. 1449/15A/Z Gali No. 5, Block-A, Durga Puri, Shahdara, Delhi 110093	Complainant
	Versus
1         2                     3	M/s. FlipKart- W.S. Retailor Services Pvt Ltd., Ozone Manay Tech Park No. 56/18, B-Block, 9th Floor, Garvebhavi Palya, Hosur Road, Bangalore 560068   M/s. T-Touch HCL 204, 2nd  Floor, Guru Amar Das Bhawan Building No. 78, Nehru Place, New Delhi 110019   Also at : M/s. T-Touch HCL T-Touch HCL, Shop No. 114, Ground Floor, Vir Savarkar Block, Vikas Marg, Near Nirman Vihar Metrol Station, Pillar No. 58, Shakarpur, Delhi 110092   Lenovo (India) Pvt Ltd. Ferns Icon, Level-2, Doddena Kundi Village, Maratha Halli Outer Ring Road, K.R. Puram, Hubli, Bangalore 5600037 Karnataka 560037	Opposite Parties

 

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

03.07.15 06.04.15 17.04.15

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, the grievance of the complainant is that the he had purchased a smart phone of brand of OP3 manufacturer it being of Model Lenevo A6000 (Black Color) IMEI No. 866043020944735 on line for an amount of Rs. 6,999/- vide order no. ID-ODOO1989393563161200 dated 04.02.2015 through OP1. It has been further submitted by him that when he used a SD Card of 32 GB in the above smart phone, it became heated and the battery also got discharged that’s why he visited to OP2 on 3.3.2015 for repairing the same and the phone was deposited over there. Further, on 7.3.15 he collected this phone from OP2 but his problem was not resolved. Therefore, on 9.3.15 he again visited the OP2 for resolving his problem and the phone was returned to him on 17.03.2015 after change of PCB of Mobile phone but even after that his problem was not resolved. He again visited OP2 on 1.4.2015 and there he was told that he should change his SD card. Thereafter, he changed his SD Card on 1.4.2015 but the new SD card also could not resolve his problem. The complainant has stated that since he was not satisfied with the services of the OP2, he visited T-Touch, HCL Service Centre OP2 (ii) and deposited his phone set there on 4.4.15. His phone was returned on 6.4.15 but his problem was not resolved. He again visited the above service centre on 28.04.2015 to deposit the phone which was returned on 1.5.15 without resolving his problem. Further, he again visited above service centre on 2.5.15 to deposit his phone and when he returned to take back the phone on 6.5.15, he found that the problem is continuing and as such, he again deposited his phone over there. He has further submitted that on 9.5.15 when he visited the above service centre to take back his phone, his battery was replaced and phone was returned but his problem persisted. Being disturbed from service centre of OP2 he sent a written complaint to OP1 on 25.5.2015 by Speed Post. He had given a period of 10 days to OP1 to repair the above phone but OP1 sought full details about the phone on email. Complainant stated that he sent the full details on email to OP1 on 8.6.2015 to which vide email dated 10.06.2015, OP1 sought the contact number and address of both the service centres of OP2 which complainant sent but even after that no action was taken. Despite so many efforts by the complainant he understood that he had been given a defective phone and due to which he suffered mentally, physically and economically. Keeping in view the above, the complainant, vide the present complaint has prayed that this Forum issue directions to OPs to provide a new phone set to complainant or refund an amount of Rs. 6,999/- and further since he has suffered a lot, the OP3 may be directed to give a compensation of Rs. 15,000/- to the complainant in addition to Rs. 12,000/- towards litigation charges.
2. In support of his contention the complainant has submitted a copy of tax invoice order ID No.  ODOO1989393563161200 dated 04.02.2015 for an amount of Rs. 6,999/- issued by OP2, copies of job sheets dated 17.03.2015 for change of PCB & 1.4.2015, a copy of the written complaint dated 25.5.2015 to OP1 by him.
3. Notices were served upon to all the OPs. OP2 & OP3 failed to appear before this Forum, therefore, OP2 & OP3 were proceeded against ex parte. OP1 filed its written statement wherein it was stated that OP1 only acts the reseller of manufactured goods and for the purpose is registered on line market place “FLIPKART. COM” and apart from this there is no relationship between OP1 and online market place “Flipkart.com”. Hence, the complainant has wrongly mentioned / arrayed online market place “Flipkart.com” and OP1 as one and same party. Further, OP1 is not engaged in selling of any goods manufactured or produced by its own and OP1 is engaged only in selling the goods manufactured and produced by others. Further, the OP2 took the defence that complaint didn’t show any cause of action against OP1 and the products sold by OP1 carry manufacturer’s warranty which should be against OP3 being the manufacturer. Further OP1 stated that neither has there been any shortage of supply or deficiency in service on its part since it is not service centre of OP3 which in this case is OP2. have no facility or knowledge to ascertain whether the product in issue in the present complaint is defective or has manufacturing defect and in case there are any concerns with the product, resolution can be provided only by the manufacturer or its authorized service centre i.e. OP2 & OP3. Further, OP1 being a mere online retailor  has no control over OP2 & OP3, they being service centre and manufacturer respectively of the subject mobile answerable for warranty issues against defects subject to their terms and conditions. It has been further submitted by OP1 that the product Lenovo A 6000 mobile phone was delivered to the complainant in a sealed box in good condition and within the time specified in the order and as such there is no deficiency in service on part of OP1. Further, OP1 stated that it sold / delivered the mobile Lenovo A6000 to the complainant in good working conditions and that the complainant has failed to established any cause of action under provision of CPA and there is no knowledge or facility to ascertain any defect or customer abuse in the said mobile which is sole duty of manufacturer and authorized service centre for which complainant should approach OP2 and OP3 for resolution.  Therefore, it is not a case of selling defective product. The OP1 has relied upon the view / legal position laid down by Hon’ble Apex Court in “Hindustan Motor Ltd & Anr V/s N. Shiva Kumar” (2009) 10 SCC 654 and in “Abhinandan V/s Ajit Kumar Verma & Ors (2009) CPJ 336 (NC)” wherein it has been held that the dealer or retailer is not liable for defect in the goods / product. OP1 has prayed for dismissal of complaint against OP1 with exemplary cost awarded to OP1.
4. The rejoinder was filed by complainant wherein it was stated that OP1 has not clarified as to how OP1 sells the products of different companies under which terms & conditions and the averments made by OP1 are not correct and OP1 should be regarded as service provider because the complainant purchased product from OP1 after cash payment.
5. Affidavit of evidence was filed by OP1 wherein it reiterated most of the objections / defence taken by it and has stated that OP1 has no role to play in providing after sales service and the sole responsibility of after sales service is that of manufacturer and authorized service centre, as the case may be under the manufacturer warranty clause. Therefore, OP1 is not liable for replacement / refund of mobile phone or paying any compensation to the complainant as alleged in complaint.
6. The complainant filed his affidavit of evidence reiterated his grievance.
7. The written arguments were filed by OP1 reiterated the points already taken into its written statement and evidence. OP1 has submitted that there is no cause of action against OP1 in view of already mentioned cases and there is another case “Classical Auto Mobile V/s Leelanand Mishra (I) (2010) 235 (NC) and ors. Wherein the Hon'ble National Commission made an observations as under:

“The dealer of a manufacturing company cannot be held liable for deficiency in service in the case of manufacturing defect in a particular consumer product……petitioner was only an intermediary between the consumer and manufacturing company and the responsibility for the manufacturing defect could only be fixed on manufacturer of the car and not on the dealer”.

8. Written arguments were filed by the complainant wherein most of the points reiterated as mentioned earlier and it was stated that OP1 was liable for the quality of the product, since the items are being sold by OP1 on cash payment and as such the OP1 is the seller and complainant is consumer. OP3 has filed its written arguments in which OP3 offered to replace the defective mobile phone in question of the complainant with the same model offered with a new brand phone as a goodwill gesture but since the offered was belated, the complainant was not agreeable to accept the offer without any compensation.
9. We have heard the arguments and gone through the evidence submitted by both the parties. We are of the considered opinion that complainant has succeeded in establishing of deficiency in service on the part of OP2 & OP3 in the absence of rebuttal by OP2 & OP3. OP1 was the online medium of communication between buyer and seller i.e. between the complainant and OP3 and since it was the business interest, it could not be set to be gratuitous service since OP1 was bringing through this online mechanism, contracts of sale and purchase of moveable goods for consideration. OP1, acting as agent who sells product of OP3 is duty bound to ensure its quality which if found defective, as an agent OP1 sale be vicariously liable for loss caused to complainant alongwith Op2 & OP3 who were service centre and manufacturer respectively of the subject mobile phone. This position was settled by Hon’ble NCDRC in the case title “Emerging India Real Assetes Pvt. Ltd. And Anr. V/s Kamer Chand & Anr” in revision petition no. 765/2016 decided on 30.03.2016. Therefore, OP1 as online retailor/ internet portel, Op2 as authorized service centre and OP3 as manufacturer are jointly and severally liable for acts for each other.   Accordingly, we hold OP1, OP2 & OP3 jointly and severally guilty of deficiency in service and direct all the OPs to refund Rs. 6999/- being full cost of the defective mobile to the complainant. Further, we award an amount of Rs. 5000/- as compensation for mental agony and harassment alongwith Rs. 3000/- as litigation cost jointly and severally payable by all the OPs to the complainant. Let the order be complied with in terms of payment towards defective mobile and compensation for harassment and litigation cost be paid by all the OPs jointly and severally to the complainant  within 30 days of receipt of this order failing which interest @ 9% p.a. shall be payable on the awarded amount i.e. 14999/- after expiry of stipulated 30 days time granted to the OPs to comply with the present order.
10. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  17.04.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member