Orissa

Cuttak

CC/121/2017

Ashok Kumar Sahoo - Complainant(s)

Versus

Flipcart Internet Private Limited - Opp.Party(s)

Self

27 Jul 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                C.C.No.121/2017

Ashok Kumar Sahoo,

1^st Floor,SD/1312,

Sector-10,CDA(Abhinab Bidanasi),

Cuttack-753014.                                                                     ... Complainant.

        

                                                Vrs.

1.       Flipkart Internet Private Limited,

Vaishnavi Summit,Ground Floor,

7^th Main,80 Feet Road,3^rd Block,

Koramangala,Bengaluru,India-560034.

 

2.      Sane Retails Private Limited,

161,G.F,Sec-4 MDC,Panchkula,

PANCHKULA,HARYANA-134113.

 

3.      Xiaomi Technology India Pvt. Ltd.,

8^th Floor,Tower-1,

Umiya Business Bay,Marathahalli-Sarjapur,

Outer Ring Road,Bangalore,

Karnataka,,India,Pin-560103...Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    11.10.2017

Date of Order:  27.07.2022

 

For the complainant:                       Self.

For the O.P No.1.     :            Mr. P.K.Nayak,Advocate.

For the O.P No.2:                              None.

For the O.P No.3:                   Mr. N.S.Ghose,Adv. & Associates.

 

Sri Debasish Nayak,President.                                                      

            The case of the complainant in nutshell is that he had placed order online for purchasing a Readme mobile phone from the O.P No.1 for a consideration of Rs.11,000/- which he had received on 30.7.17.  When he noticed some defects in the said mobile phone which was not usable on the very next day of purchase, i.e., , on 31.7.17, he had requested O.P No.1 to return the same as because the webpage of O.P No.1 highlighted “FREE AND EASY RETURN” Policy.  The matter was not settled inspite of several requests of the complainant, but on 7.8.17 the O.P No.1 assured to verify and settle the issue by 11.8.17.  One Engineer Mr. Rakesh of the O.P No.1 had inspected the said mobile on 10.8.17 and had recommended for return of the same as it was a defective set.  On 13.8.17 inspite of his unwillingness, the complainant was compelled to receive a replaced Readme mobile set of the same model which also showed the defects.  As such, the complainant requested O.P No.1 to take back the replaced mobile set and refund the amount as paid by him.  On 21.8.17 at about 2.40 p.m the complainant had approached the service centre of the O.Ps where he was suggested to leave the mobile set which requires replacement of its motherboard and it would take 15 to 30 days depending upon the availability of the spare parts.  The complainant had informed the matter to O.P No.1 through mail on 23.8.17.  Thus, it is alleged by the complainant that the O.Ps were deficient in their service and had adopted unfair trade by not taking back the defective mobile set and refunding him cost of the mobile set.  The complainant had also registered a complaint vide docket no.392045 on 17.8.17 through the Consumer’s Help line, Department of Consumer Affairs, Govt. of India.  It is further alleged by the complainant that he had approached O.P No.1 for more than 30 times and had sent several legal notices.   Ultimately the complainant had to file this case seeking refund of the cost of the mobile phone to the tune of Rs.11,000/-, a sum of Rs.2000/- towards his suffering and mental agony and a sum of  Rs.1000/- towards litigation cost together with interest @ 12% per annum from the date of cause of action; from the O.Ps.

            The complainant has filed xerox copy of documents to establish his case.

2.         Out of the three O.Ps in this case, O.P No.2 had not contested this case for which he was set exparte on 3.7.18.  However, the other two O.Ps have contested this case and have filed their respective separate written versions.  O.P No.1 in his written version has stated that the complaint petition as filed by the complainant is not maintainable; this Commission has no jurisdiction to try the present complaint case as because the place of jurisdiction as per the Website of O.P No.1 is exclusively at Bangalore.  O.P No.1 has stated that since because the Readme mobile phone has been manufactured by Xiaomi, it is the said company who should give warranty and is responsible to repair/replace/refund etc.    O.P No.1 has further stated in his written version that it is  only “Flipkart platform” which is an “electronic platform” acting as an intermediary thereby facilitating sale transactions between independent third party to sellers and independent end customers.  It is thus, urged by O.P No.1 that the complainant is not a consumer of O.P No.1.  O.P No.1 does not provide any guarantee of the product sold by O.P No.2.  Ultimately, O.P No.1 through his written version has prayed to dismiss the case of the complainant.

            O.P No.3 in his written version admits about the purchased of Readme Note-4 mobile phone by the complainant for a consideration of Rs.10,999/- having IMEI No.866257033809566 which the complainant had received on 30.7.17 through O.P No.1.  On 21.8.18, the complainant had approached the service centre where the mobile set was examined by the technician who had agreed to repair the same free of cost as per standard warranty terms and conditions but the complainant had not approached the service centre thereafter for availing such repair facility.  It is submitted in the written version of O.P No.3 that the deficiency in service is clearly established from the present fact against O.P No.1 and O.P No.3 being the manufacturer has no role to play therein.  O.P No.3 has prayed to dismiss the complaint as filed.

3.         From the contents of the complaint petition of the complainant and the averments as made by O.P No.1 & 3 in their respective written versions, this Commission is of a view to settle the following issues for proper adjudication of this case.

            i.          Whether the case as filed by the complainant is maintainable?

            ii.         Whether there was deficiency in service on the part of O.Ps?

            iii.        Whether the O.Ps had adopted unfair trade practice?

            iv.        Whether the complainant is entitled to the reliefs as claimed?      

Issue No.1.

            The case as filed by the complainant has been referred to Consumer Protection Act,1986.  The O.P No.1 through his written version has mentioned that this Commission lacks jurisdiction as because in the Website of O.P No.1 the place of jurisdiction is exclusively in Bangalore to which the complainant had agreed.  While considering the plea of jurisdiction and going through the Consumer Protection Act,1986, it is noticed that as per the complaint petition and the affidavit filed therein, the complainant resides within the jurisdiction of Cuttack district and had placed order for purchasing the Readme Note-4 mobile phone set from Cuttack.  Moreso, the product was delivered to him through O.P No.1 at his Cuttack address which is not disputed.  Thus the claim that this Commission has no jurisdiction to entertain the complaint case is incorrect.  Accordingly this Commission holds that the case as filed by the complainant before this Commission is maintainable and this issue is answered in favour of the complainant.

Issues no.2 & 3.

            Issues no.2 & 3 are taken up together for the sake of convenience here.  There is no dispute that the complainant had placed online order for a Readme Note-4 mobile handset of Xiaomi company and had paid a consideration amount of Rs.11,000/- for it.  It is also not disputed that the said mobile phone was delivered to the complainant on 30.7.17 and on 31.7.17 being dissatisfied with the usage of the mobile handset, the complainant preferred to return the same as per the “FREE AND EASY RETURN” Policy of O.P No.1 and had requested the O.P No.1 accordingly several times through mail.  It is also not disputed that when the service centre of O.Ps admitted the defect, suggested the change of mother board in the said mobile phone of the complainant and required 15 to 30 days time as per the availability of the said parts, the complainant had refused to part with the mobile phone set. It is also admitted fact that the complainant had registered online complaint through Consumer’s Help Line in the Department of Consumer Affairs,Govt. of India vide docket no.392045 dt.17.8.17.

            Thus, being dissatisfied with the purchased mobile phone set the complainant preferred to opt for refund of the value as per the advertisement in the Webpage of O.P No.1 highlighting therein “FREE AND EASY RETURN” Policy. That apart, while going through the xerox copies of the correspondences in between the O.P No.1 and complainant of this case, it is noticed that O.P No.1 through his mail sent to the complainant on 12.8.17 at 11.21 A.M. (Saturday) at page-2 has mentioned “we would like to inform you that as per the policy seller will not be able to refund for the product”.  By mentioning the same in the reply to the customer (complainant), the O.P No.1 has dragged himself into the issue and by not complying to the policy condition of “FREE AND EASY RETURN” which makes O.P No.1 liable also.  The O.P No.3 8 in it’s written version has also mentioned that there was deficiency in service by the O.P No.1 only.  By not cooperating with the complainant in refunding the defective mobile set value it can easily be concluded here in this case that there was in fact deficiency in service by all the O.Ps and all the O.Ps had in fact adopted unfair trade practice.  Accordingly these two important issues are answered against the O.Ps in this case.

Issue no.4.

            From the above discussions, this Commission has no hesitation to conclude that when the O.Ps had tried to play truant with the complainant and had harassed him.  Thus, the complainant is definitely entitled to the bonafide and reasonable reliefs as claimed.  Hence it is so ordered;

                                                            ORDER

            The case is decreed on contest against the O.Ps No.1 & 3 and exparte against O.P No.2.  All the O.Ps are found jointly and severally liable here in this case.  The O.Ps are thus directed to return the mobile set value to the tune of Rs.11,000/- to the complainant along with interest @ 9% per annum with effect from 31.7.17 till the total amount is quantified.  The O.Ps are also directed to pay a sum of Rs.7,000/- to the complainant towards his mental agony and sufferings and also to pay a sum of Rs.1000/- towards cost of litigation to the complainant within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 27^th day of July,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                     

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

 

                                                                                                                                                              Sri Sibananda Mohanty

                                                                                                                               Member.