BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    01^st DAY OF OCTOBER 2019

Complainant/s: -                           

Sri.Dilip Kumar.V.R

S/o Sri.Vamanrao Ravabawale,

Aged about 32 years,

No.12, S-1, Sugana

Comforts, 2^nd Main

Road, G.M.Palya,

Bengaluru-75

By Advocates

M/s.P.B.Raju and Associates  

V/s

Opposite party/s:-    

1. Flipkart Internet Pvt. Ltd.,

Ozone Manay Tech Park, No.66/18 and 55/09,

7^th Floor, Garvebhavipalya, Hosur Road,

Bengaluru-68.

Also at:

Flipkart.com

No.447/B, 1^st A Cross,

12^th Main, 4^th B Block, Opp.BSNL Telephone

Exchange, Koramangala, Bengaluru-34.

2. WS Retail Services

Pvt. Ltd.,

Warehouse at No.42/1 & 43, Kacherakanahalli Village, Jadeganahalli Hobli,

Hoskote Taluq,

Bengaluru-67.

By Adv.Sri.Nithyananda.R

3. Moto G. Mobiles

Customer Care

K Raheja IT Park,

HI Tech City,

Madhapur,

Hyderabad-500081.

Exparte  

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1, 2 & 3 (herein after called as OPs) to                                           replace the defective mobile with new mobile; to pay Rs.1,50,000/- for deficiency of service rendered by them;  to pay Rs.1 lakhs for the mental agony and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainant submits that, on going through the advertisement and promises of OPs, he booked smart phone ‘Moto-G (Black) with 16 GB Touch Screen Mobile phone (hereinafter referred to as the said mobile) through online on 25.06.14 and paid Rs.14,899/-. After he received the said mobile on 26.06.14 he realized that the mobile was not functioning properly and it was not up to the standards as promised. The mobile screen had black/dot marks, it was hanging and picture screen quality was very poor. Accordingly, the Complainant informed the OP. OP taken back the said mobile and delivered a fresh mobile on 03.07.14. Even in second mobile, the screen display was completely black and one could not view display and the mobile was in switched of condition. These issues were again informed to the OPs. Again OPs taken back the mobile and delivered one more mobile on 09.07.14. Even the third mobile was not having proper internet activity and the charger given by them was a duplicate one and the same informed to OPs. OPs have accepted that they have supplied the defective mobile kit and had issued refund voucher for Rs.600/- and requested the Complainant to use the mobile for some more time and in different places as it could also be the problem of internet service provider/towers in the locality.  But the issue in the third mobile not solved, hence informed the OPs through phone and mails.  OPs replied that the service team will resolve the defect in four working days. But on 19.08.14, OPs sent a mail stating that the product was delivered on 09.07.14 and it has crossed 30 days replacement guarantee period, hence OPs are not in a position to replace the mobile. However, that the product is under warranty period, the same can be serviced at the various service centre of the OPs. The Complainant written back to OPs stating that, he does not intend to get a new mobile serviced and that too when the mobile has the manufacturing defect. But OPs declined to replace defective mobile. Left with no option, he replied to the OPs to refund the paid amount with compensation but no proper response from OPs. Hence this complaint.

3. OP.1 & 2 did appear and filed separate version. Though notice served on OP.3, it did not appear before this forum, hence placed exparte.  OP.1 in its version stated that, intermediary involvement of OP.1 in the entire transaction is very limited in providing only the online platform and nothing beyond this. OP.1 does not sell any products on its own. It operates its trading facility platform over the internet under the domain name www.flipkart.com, where different registered sellers sell their products and visitors/buyers shall purchase such products from the respective sellers on the aforesaid website. The Complainant has purchased the product from one of the sellers listed on the said website. The OP.1 is not involved in the entire transaction except for providing the platform and the contract is only between the sellers and the buyers and hence this OP cannot be held liable for any liability owing to such contract. Hence, prays to dismiss the complaint,

3a. OP.2 in its version submits that, it is an online reseller and one of the registered sellers on the market place website www.flipkart.com but does not own the website. The grievance of the Complainant should have been only against the manufacturer as such the product carries manufacturer’s warrantee. As a reseller, involvement of OP.2 in the entire transaction is very limited only to selling the products of various manufacturers and in the instant complaint manufacturer is OP.3, hence there is neither any shortage of supply nor deficiency of service on the part of OP.2. Hence, prays to dismiss the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OP.1 & 2 filed separate affidavit evidence. The Complainant filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the complaint filed by the Complainant against OP.1 before this forum is maintainable ?

2. Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

3. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- In the negative

Point No.3:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OP.1 & 2.  The main contention of the OP.1 is that, complaint filed by the Complainant against it not maintainable by virtue of Sec.79 of the Information Technology Act, 2000. In this context, we placed reliance on the Sec.79 of the Information Technology Act, 2000 reads thus:

79. Exemption from liability of intermediary in certain cases.

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if –

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not –

(i) initiate the transmission,

(ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

8. Referring to the said provision, we placed reliance on the decisions of DCDRF, Visakhapatnam in CC.No.221/2013 in the case of Ravuri Veera Ragghavulu vs. Jasper Infotech Pvt. ltd., DCDRF, Amritsar, Punjab in CC.no.15/727 in the case Madhur vs. V.R.Portolia Pvt. ltd., DCDRF, Ferozepur in CC.No.376/14 in the case of Lakshay Malhotra vs. Snapdeal. The sum and substance of the said decisions is that, the Snapdeal is only the facilitator which has been exempted U/s.79 of the Information Technology Act, 2000, wherein the liability arising from any transactions entered in to by the parties through their intermediary website. In the instant case, Flipkart/OP.1 is the intermediary.  Hence, exempted U/s.79 of the Information Technology Act, 2000, wherein the liability arising from any transactions entered in to by the parties through their intermediary website.  Hence the complaint filed by the Complainant against OP.1 is not maintainable and liable to be dismissed. Accordingly we answered point No.1 in the negative.

9. Now turning to the deficiency of service on the part of OPs, we already recorded our findings in point no.1 holding that, the very complaint filed by the Complainant as against OP.1 is not maintainable.  Any of the alleged deficiency is to be culled out only against the OP.2 & 3. On going through the contents of the complaint, it is not in dispute that, the Complainant has purchased the first mobile handset of OP.3/manufacturer from OP.2/seller. The said mobile was found to be defective; hence, he brought it to the notice of OP.2, who has exchanged it with new one. In the said second mobile also, the Complainant has found defects and informed to OP.2. This time also OP.2 replaced with new one. Again the Complainant found defects in third mobile also. The sole contention of the OP.2 is that, the product which was delivered to the Complainant in a sealed box condition as it was received from the manufacturer/OP.3. OP.2 is not the manufacturer of the product and hence cannot be held liable for any alleged manufacturing defects with the product. Since the replacement guarantee period of 30 days offered by OP.2 had lapsed, subsequent replacement could not be provided to the Complainant, hence OP.2 requested the Complainant to approach authorized service centre of OP.3/manufacturer. The mere say of the Complainant stating that the said supplied mobile suffering from manufacturing defect cannot be taken in to consideration since it has to be proved by obtaining the certificate from the competitive person/technician/engineer to show that, the said mobile handset is having manufacturing defect in the light of the decision reported in I (2011) CPJ 254 (NC) in the case of Kamal Kishore vs. Electronics Corporation of India ltd., and Anr., the relevant para 3 reads thus:

3. Aggrieved by this order, Respondents filed an appeal before the State Commission. The State Commission accepted the appeal by concluding that there was no proof that the TV set purchased by the complainant suffered from any manufacturing defect or that any complaint to this effect had been made by the Petitioner to the Respondent dealer during the warranty period. The relevant part of the order of the State Commission is reproduced:

The warranty of the TV set had expired on 16.07.1989 and during this period of one year the dealer did not receive a single complaint about there being any defect in the TV set. Although, the complainant submitted that he had complained about the defect in the TV on 23.05.1989 and 21.06.1989 but there is no proof to support the said statement. If the complaints were sent in writing, their copies were required to be furnished and filed before the Forum below but no document worthy of credit had been brought on record. We are, therefore, inclined to uphold the appellants contention that he did not receive any complaint during the warranty period about there being any kind of defect in the TV set in question.

The complainant was also under the obligation to establish that a particular kind of defect falling within the purview of inherent/ manufacturing defect had persisted in the TV but neither any engineers report nor any other convincing evidence had been filed either before the Forum below or before us. The allegation of manufacturing defect in a machine is not to be taken to be as a gospel truth on mere statement but it is required to be proved beyond doubt by means of a credible documentary evidence. In the case in hand the opinion of an engineer who would have been an expert in the field of TV manufacturing/repairing would have been of a greater held to the complainant but no such report has been obtained and filed. We are, therefore, not inclined to accept the complainant’s version which is liable to be rejected.

10. In the light of the decisions cited supra, we come to the conclusion that, mere allegations labeling the manufacturing defects in the said mobile handset is not sufficient to fix the liability on OP.2 & 3. Hence, the complaint is lacking merits liable to be dismissed. Accordingly we answered point No.2 in the negative.

  11. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainant as against the OP.1 is dismissed as not maintainable, so also, complaint against OP.2 & 3 is dismissed devoid of any merits.  

2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 01^st day of October 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.11.05.16

Sri.Dilipkumar.V.R  

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OPs dated.18.10.16

Sri.Pandurnga Acharya, Authorized Signatory of OP.1

Smt.Swati Singh, Authorized Signatory of OP.2   

Copies of Documents produced by OPs

            MEMBER                                           PRESIDENT