IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR,PRESIDENT

ORDER

1. This complaint filed by Mr. Sunilraj P.R. s/o. P.M. Ramakrishna, aged 43 years, resident of Madikeri, Kodagu District with a prayer to hold that the opponents are guilty of selling defective laptop and deficiency in service by not setting right or failed to replace the defective laptop at free of cost or refund the sale consideration of Rs.26,990-00 with interest at the rate of 12% per annum.  The complainant further prayed to direct the opponents to pay a sum of Rs.5,000/- as compensation/damages along with the cost of this proceedings.

2. The opponent no.1 and 2 are Flipkart Company situated at Koramangala, outer Ring Road, Bangalore.  The opponent No.3 and 4 are Tech-Connect Retail Private Limited situated at Secunderabad and Himayatnagar, Telangana.  It is the case of the complainant that he was impressed by the advertisement published by the opponent no.1 and 2 for selling Acer Laptops at the discount price, and he has transferred a sum of Rs.26,990/- on 08/08/2018 towards  the same.  The opponent no.3 and 4 have sold the Laptop and delivered to the complainant at his Madikeri address.  It is the allegation of the complainant that from the date of delivery the Laptop is not working and despite his several request and legal notice dated 04/10/2018 the opponents have failed to set right the Laptop or replace the same or refund the sale consideration amount hence, this complaint.

3. The opponent no.1 and 2 after the service of notice put in appearance through their learned counsel and filed detailed written version contending that the opponents company is engaging in providing trading/ selling facility over the internet through its website

4. It is further contention of opponent that the opponent nos.1 and 2 neither traders nor service providers and there does not exists any privity of contract between the complainant and opponent nos.1 and 2.  The opponent nos.1 and 2 have not charged any amount to the complainant for using the service available on online market place flipkart platform.  The complainant has not sought any relief against these opponents.  There is no deficiency in service on the part of opponent nos.1 and 2.  Therefore, opponents prayed to dismiss the complaint against them.

5. The opponent nos.3 and 4 have filed separate written version contending that opponent no.3 is a company incorporated under the Companies Act, 1956 having its office at Gurgaon Hariyana.  The opponent no.3 is carrying on the business of sale of goods manufactured /produced by others.  The opponent nos.3 and 4 are registered sellers on the website flipkart.com and sellers’ products and others through the website.  The opponent no.3 and 4 have separate and distinct legal existence from the manufacturer and cannot be held liable for any alleged manufacturing defects.

6. The opponent nos.3 and 4 admitted that the opponent no.3 had delivered a Laptop to the complainant in a seal packed form.  The opponent no.3 has provided 10 days time to return/ replacement policy to the complainant in addition to standard manufacturing defect.  The complainant has never raised return request with his grievance within the prescribed time of 10 days of delivery.  The complainant should have raised his grievance before the manufacturer or authorized service centre only. The opponent nos.3 and 4 are not the manufacturer of the product sold to the complainant and has no facility or knowledge to ascertain whether product in issue in the present complaint is defective or has manufacturing defects.  Therefore, the relief claimed by the complainant against the opponents is unsustainable in law.  The opponent no.3 and 4 are online reseller and they are not manufacturer.  The liability for defects in product or its after sales service issues rests with the manufacturer and its authorized service centre only. Thus the complainant has wrongly impleaded these opponents in this complaint.  The dealer or retailer cannot be held liable for defect in the goods.  On the above reasons, the opponents prayed to dismiss the complaint.

7. The complainant filed his affidavit in lieu of evidence and marked exhibits P1 to P7 documents.  On behalf of opponent Nos.1 and 2 one Miss Amrita Pratap, D/o.Ajay Pratap filed her affidavit in lieu of evidence.  On behalf of opponent no.3 and 4 one Mr. Rudramurthy s/o. Uma Maheshwar filed affidavit evidence.  The opponent nos.1 and 2 have produced exhibit R1 Guidelines for Foreign Direct Investment on E-commerce issued by Government of India, Ministry of Commerce and Industry and exhibit R2 flipkart terms of use.  The opponent nos.3 and 4 have not marked any documents.  On perusal of the complaint, affidavit evidence and documents the points that would arise for determination are as under;

1. Whether the complainant proves that the Laptop sold by opponent nos.3 and 4 is defective?

2. Whether the opponents prove that the complaint is not maintainable for not impleading the manufacturer of Laptop?

3. Is complainant entitled to the relief sought for?

4. What order?

8. Our findings on the above points is as under;

• Point No.1:- In the  Affirmative
• Point No.2:- In the Affirmative
• Point No.3:- In the Negative
• Point No.4:- As per final order for the below

R E A S O N S

9. Point Nos.1 to 4 - In this case the opponents have not disputed on the advertisement published by the opponent nos.1 and 2 the complainant has purchased Acer Laptop for Rs.26,990/- from opponent Nos.3 and 4.  The complainant has produced exhibit P1 tax invoice issued by opponent no.3 and 4 dated 08/08/2018 for sale of Acer Laptop for Rs.26,990/-.  Exhibit P2 is account statement of complainant of HDFC Bank for remitting an amount of Rs.26,990/- to the opponents towards the price of Laptop on 07/08/2018.  The opponents have not disputed payment made by the complainant and sale of Laptop to him for Rs.26,990/- on 08/08/2018.  The complainant has got issued exhibit P3 legal notice dated 04/10/2018 to the opponent Nos.1 to 4 stating that the Laptop purchased by him is defective and  not working since from the date of delivery and asked them to replace or refund the cost of the Laptop.  Exhibit P4 is postal acknowledgement for having received exhibit P3 legal notice by opponent no.1 and 2.  Exhibit P6 and 6A are the returned postal cover of exhibit P3 legal notice as the opponent nos.3 and 4 have refused to receive them.  Exhibit P3 notice indicates that the Laptop sold by opponent no.3 and 4 was defective from the date of delivery. 

10. It is the contention of opponent nos.1 and 2 that they are not necessary or formal parties in this complaint since there was no transaction between them and complainant nor the complainant paid any amount to them for publishing an advertisement. The opponent nos.3 and 4 contended that the complainant would have brought to the notice of manufacturer of the Laptop with regard to non- functioning or produce before its service centre.  The opponent no.3 and 4 are retail sellers of  Laptop.  It is further contended that the manufacturer is liable to answer for the defective material or refund its price.  The opponent no.3 and 4 are not liable to compensate or answer the complainant for defective goods. 

11. The opponent no.3 and 4 relied upon the case of Abhinandan v/s Ajit Kumar Verma and others I (2008) CPJ 336 (NC) wherein under Section 2(1)(f) of Consumer Protection Act, 1986 held that manufacturing defects- dealer’s liability –VCP defective.  The liability of manufacturer to compensate the complainant or replace VCP.  The dealer cannot be held liable for the manufacturing defect in the VCP.  The National Commission has followed the case of Hindustan Motors Ltd. and Another v/s N. Sivakumar and Another (2000) 10 SCC 654.   According to the complainant the opponent nos.3 and 4 are sellers or dealers of Laptop.  The opponent Nos.3 and 4 are not the manufacturer of Laptop.  In view of the above decision the opponent nos.1 to 4 are not liable to replace the defective Laptop or refund its cost. In Bhagavan Singh Shekavath v/s R.K. Photostat and Communications and others II (2017) CPJ 462 wherein National Commission held that without impleading manufacturer as a party complaint is not maintainable.  The complainant has not impleaded the manufacturer of the Laptop and secondly opponent nos.3 and 4 are dealers or retailers of Laptop as such they are not liable for the defective laptop or to refund its price.   In view of the foregoing discussion, the complaint is not maintainable against the opponent nos.1 to 4.  For the above reasons, we proceed to pass the following;

O R D E R

1. The complaint filed by Mr. Sunilraj.P.R s/o. P.M. Ramakrishna fails hence, it is dismissed. 
2. In the facts and circumstances of the case, parties shall bear their own cost.
3. Furnish copy of order to the complainant and opposite parties at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 03^rdday of May, 2019)

                                                   (C.V. MARGOOR)

                                                        PRESIDENT 

                                                  (M.C. DEVAKUMAR)