BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint Case No.209 of 2018.
Date of institution: 27.07.2018.
Date of decision:01.5.2019.
Ravi Bhardwaj son of Ajay Bhardwaj, r/o H.No.575/30, Gali No.7, Chandana Gate, Azad Nagar, Kaithal, Distt. Kaithal.
…Complainant.
Versus
- Flipkart Pvt. Ltd. through its Managing Director, Regd. Office, Consulting Room Pvt. Ltd., H.No.37/3, Old Rajindra Nagar, near Water Tank, Central New Delhi.
- Micromax House 90-B, Gurgaon, Sector-18, Gurgaon through its Managing Director.
- Service Centre, Micromax Mobile, Janta Market, Kaithal through its proprietor.
….Respondents.
Before: Shri D.N. Arora, President.
Shri Rajbir Singh, Member.
Smt. Suman Rana, Member.
Present: Sh. Munish Sikri, Advocate, for the complainant.
Sh. Vikram Tiwari, Advocate for the OP.No.1.
OPs No.2 & 3 ex parte.
ORDER
D.N. ARORA, PRESIDENT
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainant purchased a mobile set of Micromax from the OP No.1 for the sum of Rs.11,999/- through online. It is alleged that the OPs sent the said mobile at the address of complainant through courier which was duly received by the complainant vide order ID tax invoice No.PL-F25374515 order dt. 28.10.2017. It is further alleged that after sometime of its purchase, the mobile set became defective and stopped working abruptly. The complainant approached the OP No.3 on 09.06.2018 to repair or replace the said mobile set, but the OP No.3 did not listen his genuine request. So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint. Hence, this complaint.
2. Upon notice, the OP No.1 appeared before this Forum, whereas, OPs No.2 & 3 did not appear and opted to proceed against ex parte vide order dt. 16.11.2018. OP No.1 contested the complaint by filing reply raising preliminary objections with regard to locus-standi; maintainability; cause of action; that the answering Op is carrying on the business of sale of goods manufactured/produced by the others. The answering Op is a registered seller on the website “flipkart.com” and sells products of other manufacturers, traders etc.; that the answering Op is not engaged in the ale of any goods manufactured or produced by its own; the answering Op is engaged in sale of goods manufactured and produced by other manufacturers; that the answering Op is not the manufacturer but an online reseller and the products sold by the answering Op carry warranty issued by the respective manufacturers against the manufacturing defects subject to the terms and conditions determined by the manufacturers only; that there is no deficiency in service on the part of Ops. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
3. The complainant tendered into evidence affidavit, Ex.CW1/A and documents Annexure-CA to Annexure-CC and thereafter, closed the evidence.
4. On the other hand, the Op No.1 tendered into evidence affidavit, Ex.RW1/A and thereafter, closed the evidence.
5. We have heard the learned Counsel for both the parties and perused the record carefully.
6. From the pleadings and evidence of the case, it is clear that the complainant purchased a mobile set from OP No.1 for a sum of Rs.11,999/- with one year warranty through online vide Tax Invoice order dt. 28.10.2017 Annexure CA. The grievance of the complainant is that after sometime of purchase of said mobile set, it became defective and stopped working abruptly. The complainant approached OP No.3 on 09.06.2018 to repair or replace the said mobile set, but the OP No.3 did not listen his genuine request. To prove its version, the complainant has produced on the file his affidavit Ex.CW1/A and documents regarding purchase of mobile set in question Annexure CA to Annexure CC.
On the other hand, the OP No.1 produced on the file his affidavit Ex.RW1/A, whereas, the OPs No.2 & 3 did not appear and proceeded against ex parte. However, it is made clear that the OP No.1 has not stated anything in his reply regarding the defect in the mobile set, therefore, the evidence of complainant that there were defects in the mobile set, goes unrebutted against the OPs. The OP No.1 further contended that he is not the manufacturer but an online market place and a platform for different sellers to sell their products. According to Section 79 of the Information Technology Act, 2000, the OP No.1 is exempted from liability for third party information, data or communication link made available or hosted by it. So, in view of above facts and circumstances of the case, we are of the considered view that the mobile set in question of the complainant became defective within the warranty period and the OPs No.2 & 3 have failed to resolve the defects of said mobile set. Hence the OPs No.2 & 3 are deficient in providing services to the complainant.
7. Thus, as a sequel of above discussion, we allow the complaint against the Ops No.2 & 3 and direct the OPs No.2 & 3 to replace the defective mobile set in question of the complainant with new one of the same model, as purchased by the complainant vide Tax Invoice Annexure CA dt. 28.10.2017. The complainant is also directed to deposit the old mobile set alongwith accessories with the service-centre of Ops No.2 & 3. However, it is made clear that if the said mobile as purchased by the complainant, is not available with the OPs No.2 & 3, then the OPs No.2 & 3 shall refund Rs.11999/- the cost of mobile set, to the complainant. Both the OPs No.2 & 3 are jointly and severally liable. Let the order be complied with within 30 days from the date of preparation of copy of this order. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
Dt.:01.5.2019.
(D.N. Arora)
President.
(Suman Rana), (Rajbir Singh)
Member Member.
