Punjab

Fatehgarh Sahib

CC/16/2017

Rajesh Kumar - Complainant(s)

Versus

Flipkar & others - Opp.Party(s)

Sh Ajit Pal Singh

22 Sep 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint  No.16 of 2017

                                                     Date of institution : 08.03.2017                                    

                                                      Date of decision    : 22.09.2017

Rajesh Kumar resident of #1/73, Ward No.7, Gurdev Nagar, Sirhind Mandi, Tehsil and District Fatehgarh Sahib.

……..Complainant

Versus

1. Flipkart, warehouse address, Khasra No.435, road No.4, Lal Dora Ext. Mahipalpur, New Delhi, India,110037.
2. Alpha Infotech Chandigarh(SWP015), at 2068/1,2, Main Market, Near Raguvanshi Complex, Burail-45-A, Chandigarh.
3. Swipe Technology Pvt. Ltd. F4 A/B/C, Metropole Building, Next to INOX Theatre, Bundgarden Road, Pune-411001, INDIA.

 …..Opposite Parties

Complaint Under Sections 12 to 14 of the Consumer Protection Act.

Quorum

Sh. Ajit Pal Singh Rajput, President.

Sh. Inder Jit, Member

 

Present :        Sh.Ajit Pal Singh, Adv.Cl. for the complainant.                                 Sh. N.S.Toor, Adv.Cl. for OP No.1.

                      Opposite Parties No.2 & 3 exparte.

 

ORDER

 

By Inder Jit, Member

                      Complainant, Rajesh Kumar resident of #1/73, Ward No.7, Gurdev Nagar, Sirhind Mandi, Tehsil and District Fatehgarh Sahib, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.           The complainant purchased a mobile hand set i.e. Swipe Elite Plus (Manufactured by OP No.3) bearing IMEI No.911520653177142, vide order bearing ID No.OD 607452573721727000 dated 28.10.2016, through Online service/advertisement of OP No.1 for Rs.6499/-. The agent of OP No.1 delivered the said mobile hand set at the residence of the complainant on 29.10.2016.  The guarantee period of the mobile hand set was one year from the date of purchase i.e. 28.10.2016. After receiving the mobile hand set on 29.10.2016, when the complainant opened the package of the said mobile hand set, he was shocked to see that the touch screen of the said mobile was damaged/broken. Thereafter, the complainant approached OP No.3 through customer care number and disclosed the said problem of mobile hand set. OP No.3 advised the complainant to approach the nearest service centre.  Thereafter, the complainant personally visited the office of OP No.2 on 29.11.2016 for change of touch screen with new one. The dealing hand of OP No.2 took the said defective hand set and demanded Rs.2,500/- from the complainant. The complainant paid Rs.1,500/- to OP No.2 and Rs.1,000/- is due towards the complainant. OP No.2 issued a Jobsheet bearing No.CHA-CHA-AL-1800 dated 29.11.2016 to the complainant. Thereafter, the complainant approached OP No.2 after one week for collecting his mobile hand set. Firstly, the dealing hand of OP No.2 started putting off the matter on one pretext or the other and ultimately he refused to repair the said defective hand set and also refused to refund the said amount paid by the complainant for its repair. The complainant so many times requested the OP to repair the defective hand set but it did not listen to the genuine requests of the complainant and flatly refused to do so. The act and conduct of the OPs amounts to unfair trade practice and deficiency in service on their part. The complainant also served a legal notice on the OP No.2 but all in vain. Hence, this complaint for giving directions to the OPs to replace the defective mobile hand set with new one or to refund the price of the same along with interest and further to pay Rs.15,000/- to the complainant as compensation for mental agony and unnecessary harassment.
3. Notice of the complaint was issued to the OPs but OPs No. 2 & 3 chose not to appear to contest this complaint despite service. Hence, OPs No.2 & 3 were proceeded against exparte.
4. The complaint is contested by OP No.1, who filed the written reply. In reply to the complaint, OP No.1 raised certain preliminary objections, inter alia, that the complainant has approached this Forum with unclean hands and is guilty of suppressing material facts; the contents of the complainant are wrong, vague and evasive; the present complaint is not maintainable in the eyes of law and the complainant has failed to establish any cause of action under the provisions of the Consumer Protect Act 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 inter se. 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.
5. In order to prove his case, the complainant tendered in evidence copy of bill Ex. C-1, job sheet Ex. C-2, copy of legal notice Ex. C-3, postal receipts Ex. C-4, acknowledgement Ex. C-5, affidavit of complainant Ex. C-6 and closed the evidence. In rebuttal OP No.1 tendered in evidence affidavit of Satyajeet Bhattacharya as Ex. OP1/1 and closed the evidence.
6. Ld. counsel for the complainant pleaded that the touch screen of the mobile handset was found broken on opening of the packet, which means that the packet contained handset with broken screen. Hence, the handset is either required to be repaired by changing the screen with a new one or if it is not possible to do, new mobile hand set is required to be given by the manufacturing company to the complainant alongwith compensation and litigation charges.  OP No.3, the manufacturing company did not turn up to contest this complaint, which proves their admission to the dispatch of a faulty mobile handset. Ld. counsel also pleaded that OP No.2, being the service centre of OP No.3, should have changed the defective screen of the mobile with a new one without charging any amount from the complainant since the mobile was under warrantee at that time, but he charged Rs.1500/- and a balance of Rs.1000/- was yet to be paid at the time of delivery of the handset.
7. On the other hand,  Ld. counsel for OP No.1 pleaded that OP No.1 provides only a market place wherein third party venders/sellers, who wish to use the platform, register themselves as venders/sellers and list their products and offer the said products for sale. Hence, OP No.1 can, in no way, be held responsible for the broken screen.
8. We have gone through the pleadings, evidence, written submissions along with oral arguments addressed by Ld. counsel for the parties. We find force in the submissions made by the Ld. counsel for the complainant.  OP No.2 & 3 have committed deficiency in service and hence the complaint stands accepted against them. Therefore, we direct OP No.2 & 3 to either replace the touch screen of the said mobile hand set free of costs or if it is not possible then the hand set be replaced with new one. OP No.2 & 3 are also directed to pay Rs.5,000/- to the complainant as compensation for mental agony and harassment and Rs.3000/- on account of litigation charges.
9.  OP No.2 & 3 are directed to comply with the order of this Forum within 45 days from the date of receipt of certified copy of this order.
10. The arguments were heard on 15.09.2017 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:22.09.2017

(A.P.S.Rajput)

President

 

(Inder Jit)         

    Member