Punjab

Fatehgarh Sahib

CC/44/2017

Manoj Kumar Garg - Complainant(s)

Versus

Flipkar Corporate and others - Opp.Party(s)

Sh Amandeep Mehta

16 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint  No. 44 of 2017

                                                     Date of institution : 20.07.2017                                           

                                                           Date of decision    : 16.05.2018

Manoj Kumar Garg aged about 40 years son of Sh. Chaudhari Ram, resident of House No.202, W.No.4, Jail Road, Bassi Pathana, Tehsil Bassi Pathana, District Fatehgarh Sahib.

……..Complainant

Versus

1. Flipkart Corporate office, Flipkart Internet Private Ltd., Vaishnavi Summit, No.6/B, 80 Feet Road, 3^rd Block, Koramangala, Bangalore-560034.
2. WS Retail Service Pvt. Ltd. Kharra No.435, Road No.#04, Lal Dora Ext. Mahipalpur, Delhi-110037.
3. Samsung Care Centre, C/o M/s Techno Solutions, Ward No.17, opposite Goal Market, Near Krishna Mandir, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib through its authorized signatory.
4. Samsung India Electronics Pvt. Ltd., A-25, Ground Floor, Front Tower, Mohan Cooperative, Industrial Estate, New Delhi-110044, through its authorized signatory.

 …..Opposite Parties

Complaint Under Sections 11 to 14 of the Consumer Protection Act.               

Quorum

Sh. Ajit Pal Singh Rajput, President                                      

  Sh. Inder Jit, Member

 

Present :        Sh.M.K.Garg, complainant in person.

                      Sh. N.S.Toor, counsel for OPs No.1 & 2.

Sh. G.S.Nagra, counsel for OPs No.3 & 4.

ORDER

 

By Inder Jit, Member

                      Complainant, Manoj Kumar Garg aged about 40 years son of Sh. Chaudhari Ram, resident of House No.202, W.No.4, Jail Road, Bassi Pathana, Tehsil Bassi Pathana, District Fatehgarh Sahib, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 11 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.           The complainant purchased a mobile set Samsung Galaxy J5-6 (New 2016 Edition) from OP No.2 through OP No.1 on 26.08.2016, vide retail invoice/bill No. DEL20160800119149 in cash for the sum of Rs.11,990/-. At the time of purchase of said mobile hand set, OPs No.1, 2 and 4 gave warrantee/guarantee of one year for any defect in the mobile hand set and also assured that in case of any defect in the mobile hand set, the OPs will return the amount of the said mobile alongwith interest or to replace the same with new one of the same price range. After some time from the date of purchase of the said mobile hand set, a fault occurred in the mobile as it started giving problem of hanging so many times in a day and became slow and there was also heating problem. The complainant visited OP No.3, the authorized service centre of Samsung Company, and disclosed about the problems, who orally provided the Job sheet No.4223701555 dated 18.10.2016 but printout of the same was not provided by OP No.3 due to printing problem in printer.  The OP No.3 handed over the mobile hand set to the complainant after removing the defect/problem from the same. But after using the mobile again, said fault again occurred in the mobile hand set. The complainant again visited OP No.3 on 02.01.2017 and told about the problem in the mobile hand set. OP No.3 returned the mobile hand set to complainant after repairing the same and assured that the defect has been removed and now it will not create any problem in future but no job sheet was issued to the complainant at that time.  Thereafter, again the mobile hand set created the same problem and then on 06.05.2017, the complainant visited the office of OP No.3, who returned the mobile hand set after removing the defect/problem and also issued job sheet No.4235943501 dated 06.05.2017 and gave assurance that the defect has been removed and it will not create any problem in future. After few days i.e 4-5 days, the same problem agan re-started and complainant visited on 11.05.2017 the office of OP No.3 but OP No.3 refused to remove the defect from the mobile hand set, rather misbehaved with the complainant. The act and conduct of the OPs amounts to deficiency in service and unfair trade practice on their part. Hence, this complaint for giving directions to the OPs to refund the amount of Rs.11,990/- i.e. price of the mobile hand set and further to pay Rs.25,000/- as compensation for harassment and mental agony and Rs.5500/- as litigation expenses.
3. The complaint is contested by OPs. In reply to the complaint, OP No.1 raised certain preliminary objections, inter alia, that the complainant has suppressed true and material facts and has not approached this Forum with clean hands; the complainant has mala fidely and unnecessarily implicated OP No.1 in the instant complaint, without there being any cause of action against it; the complainant does not fall under the category of Consumer qua OP No.1 under the provision of the Consumer Protection Act,  1986 and the present complaint is not maintainable against OP No.1. As regards the facts of the complaint, OP No.1 stated that OP No.1 is merely a marketplace, which offers a platform to third party vendors/sellers and third party buyers to transact different kind of business/facilitate transactions. OP No.1 is not in any manner engaged in any offer for sale or sale of any product, either through any online portal or otherwise at all. Thus, it acts solely as an intermediary, as defined under Section 2(1)(W) of the Information Technology Act, 2000. Under Section 79 of the said Act, an intermediary shall not be liable for any third party information, data or communication link made available or hosted by it. It is further stated that the sole grievance of the complainant relates to after sale service. OP No.1 is only providing a platform for communication and the terms of contract for sale of any of the products or services shall be a strictly bipartite contract between the Seller and the Buyer. Further OP No.1 is neither manufacturer nor supplier of the product in question and no agent of OP No.1 delivered the product to the complainant. There is no deficiency in service on the part of OP No.1. After denying the other averments made in the complaint, it prayed for dismissal of the complaint.
4.           In reply to complaint, OP No. 2 raised certain preliminary objections, inter alia, that the complainant has suppressed true and material facts and has not approached this Forum with clean hands;  the present complaint is false, frivolous and vexatious and the complainant has got no cause of action under the Consumer Protection Act against OP No.2. As regards the facts of the complaint, OP No.2 stated that main grievance of the complainant relates to after sale service issue regarding the product, where OP No.2 has no role to play. OP No.2 is engaged in selling of goods manufactured and produced by others. It is further stated that the product in question was sold by OP No.2 carrying manufacturer's warranty as provided by the manufacturer and OP No.2 does not come into picture once the product has been duly delivered to the complainant to his full satisfaction.  It is further stated that OP No.2 provides for a 10 days return/replacement policy, which means that if the purchaser of the product faces any problem in the product within 10 days of its receipt, he can seek refund of the amount/replacement of the product by returning the product to OP No.2 within 10 days of its receipt. In the present case, the complainant had used the product for nearly 9 months and did not approach OP No.2. It is the manufacturer of the product i.e. OP No.4, who has to address the issue in the product, if any, and not OP No.2. Hence, there is no deficiency in service on the part of OP No.2. After denying the other averments made in the complaint, OP No.2 prayed for dismissal of the complaint qua it.
5. In reply to complaint OPs No.3 & 4 also raised certain preliminary objections, inter alia, that the complainant has concealed the material and true facts from this Forum and the complainant has not come with clean hands; the present complaint is gross abuse of the process of law and no cause of action has arisen in favour of the complainant and against the OPs No.3 & 4.  As regards the facts of the complaint, OPs No. 3 & 4 stated that complainant visited office of OP No.3 on 06.05.2017 and reported the problem of 'Hanging and Slow responding'. OP No.3 retained the handset and issued job sheet to complainant and on inspection found the problem of hanging and slow responding due to some non-compatible mobile applications and games loaded in the mobile. OP No.3 updated the software of the mobile and the problem of hanging and slow response was duly rectified to the satisfaction of complainant. It was also assured that there will be no problem in future if the mobile is used with care and caution. Thereafter, the complainant never reported any kind of problem in the said mobile hand set. There is no deficiency in service on the part of OPs No. 3 & 4. After denying the other averments made in the complaint, OPs No. 3 & 4 prayed for dismissal of the complaint.
6. In order to prove his case, the complainant tendered in evidence his affidavit Ex. C-1 true copy of bill dated 25.08.2016 Ex. C-2, true copy of job sheet Ex. C-3, true copy of acknowledgment Ex.C-4 and closed the evidence. In rebuttal the Ld. counsel for OPs No. 1 & 2 made a statement that the written version filed by OPs No.1 & 2 be treated as evidence. OPs No. 3 & 4 tendered in evidence affidavit of Anindya Bose Ex. OP3/1 and closed the evidence.
7.           The Ld. counsel for the complainant pleaded that the mobile hand set in question had a warranty for one year. Some eight months after the purchase of the mobile hand set in question, it started creating the problem of hanging and heating. The complainant visited the service centre of the Samsung Company i.e. OP No.3, who rectified the problem. However, the problem could not be rectified permanently in spite of the fact that the complainant visited OP No.3 thrice. When the complainant visited OP No.3 for fourth time on 11.05.2017 for rectification of the aforesaid problem in the hand set( which had been occurring time and again), OP No.3 did not attend to the complainant rather abused him. So the complainant filed this complaint for refund of price of the mobile hand set alongwith compensation and litigation charges.
8. Ld. counsel for OPs No.1 & 2 argued that OP No.1 provides only the market place for different sellers and purchasers to do business and hence cannot be proceeded against. OP No.2 is the seller/dealer of the mobile hand set in question and hence it also cannot be proceeded against. Samsung Company is the manufacturer of the mobile hand set and is thus responsible for rectification of all defects in the mobile hand set.
9. Ld. counsel for OP No.3 & 4 pleaded that the mobile hand set was presented to the authorized service centre of the Samsung Company only once and its defects were rectified to the satisfaction of the complainant and the complainant was also advised to handle the mobile carefully. He pleaded further that if any defect had occurred again, it was due to mishandling by the complainant. He pleaded for dismissal of the complaint.
10. We have gone through the pleadings, evidence, written submissions alongwith oral arguments addressed by the Ld. counsel for the parties. We find force in the submission made by the Ld. counsel for the complainant. Ld. counsel for OP No.3 & 4 doubted the legitimacy of Ex. C-4, but it proved to be a photo of the job card taken from the computer itself and that is why, it does not carry any signatures. OP No.3 & 4 could not place on record any evidence in favour of mishandling of the mobile hand set in question. Hence, we accept this complaint and direct OP No.3 to inspect the mobile hand set in question thoroughly and repair it to the entire satisfaction of the complainant. Defective parts of the mobile, if any, may also be changed free of cost, if required. In case the mobile hand set is irreparable owing to manufacturing defect, it be got exchanged with new one from OP No.4(Samsung Company). If the same model is not available now, the price of the mobile hand set i.e. Rs.11990/- be got refunded from OP No.4. We find that complainant is entitled to Rs.3000/- as compensation and litigation charges payable by OP No.4. The order be complied within 30 days from the date of receipt of certified copy of this order.
11.  The arguments on the complaint were heard on 10.05.2018 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

 Pronounced

Dated:16.05.2018