Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-35/2022
Shiv Chander s/o Sh. Ram Sadrath
r/o C-58/157, Bhagat Store, Mir Dard Road
Behind GB Pant Hospital, New Delhi-110002 ...Complainant
Versus
OP1: M/s Flipkart India Private Limited
Vaishnavi Summit Ground floor, 7th Main 80 feet Road,
3rd Block, Koramangala, Industrial Layout, Bangalore,
Karnataka-560034 [OP3 is strike off as per para 6.3 below]
OP2: M/s Counsulting Rooms Pvt. Limited,
through its Manager, 202, DBS Business Centre,
FF, World Trade Tower, Barakhamaba Lane,
Connaught Place, New Delhi-110001
OP3: M/s Jeeves Consumer Services Private Limited
Buildings Alyssa, Begonia & Clover Embassy Tech Village,
Outer Ring Road, Devarabeesanahalli Village,
Bangalore-5601103
Also at -
Regional Office M/s Jeeves Consumer Services,
ED-127, Tagore Garden, New Delhi-110027 ...Opposite Parties
Date of filing : 09.03.2022
Date of Order: 25.05.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh
ORDER
1.1. (Introduction to parties and their dispute) : The complainant/consumer had purchased Nokia 108 CM 43 inch Ultra HD 4K LED Smart Android TV from seller Consulting Rooms Pvt. Ltd./OP2 through Flipkart.com website on 06.08.2020, for that M/s Flipkart India Pvt. Ltd. was arrayed as OP1. The complinant purchased extended warranty for two years against paid consideration from M/s Jeeves Consumer Services Pvt. Ltd./ OP3-Service Provider.
There was problem in the said TV after one year of its purchase, for which opposite parties were approached, however, the defect was not removed and rectified, TV still lying with OP3. There is no refund of the invoice amount of the TV despite provision in the extended warranty. There is deficiency of services on the part of OPs.
1.2. OP1 opposed the complaint that it is joined unnecessary as the product was sold by OP2 at the platform of Flipkart.com and OP1 is a distinct and separate entity, even as per certificate of incorporation. The OP2/seller also opposed the complaint being seller of the product and after the sale of product, there is no liability of vendor. OP3 also opposed the complaint that there was extended warranty by it, the complaint was attended by its expert, however, the resolution offered by OP3 was refused by the complainant, therefore, complaint is not made out for any relief claimed as there is no deficiency of service nor any harassment on its part.
2.1 (Case of complainant). The complainant bought Nokia 108 CM 43 inch Ultra HD 4K LED Smart Andriod TV having IMEI no. 19C0363MI-00565 (briefly- TV) for Rs. 31,999/- with one year warranty through Flipkart.com on 08.06.2022 against retail invoice. The TV was not working properly after one year, the complainant approached service centre of company, but neither the TV was repaired nor it was replaced despite under warranty. On 02.12.2021, an engineer came and repaired the TV but problem remained subsisting, thereafter various telephone calls were made but no response.
2.2: The complainant had bought extended warranty through Flipkart online wide reference no. JWEB012A07414, which is upto 07.06.2023, despite it the complainant had to run from pillar to post. The problem was not resolved. On 07.03.2022 there was exchange of emails, the complainant was assured falsely that there will be refund of the amount, which is his hard earned money but not a single penny was returned. There is no proper and appropriate services, there is deficiency of services and OPs indulged in harassing the complainant physically and mentally as well as there is arbitrary, unjust and improper acts on their part. 2.3 That is why, the complaint for refund of Rs. 25,000/- with interest at the rate of 18% pa, compensation of Rs. 1,00,000/- for mental agony, tension, harassment and costs/expenses. The complaint is accompanying with copies of tax invoice, email exchanged, Whatsapp messages and identity proof of complainant.
3.1 (Case of OP1) : The OP1/Flipkart India Pvt. Ltd. filed detailed reply, the complaint is opposed on all counts. The OP1 has also narrated its status, identity and nature of business. Briefly, OP1 is a wholesaler, it is engaged in business to business sales (B2B). The complainant appears to be aggrieved with market place platform Flipkart.com though whom product was purchased, which is a separate legal entity under the name Flipkart Internet Pvt. Ltd. which is a distinct and separate identity from OP1/Flipkart India Pvt. Ltd.
The OP1 has not sold the product, nor it has direct or indirect role in the transaction of TV bought by the complainant, the complaint against OP1 is liable to be dismissed. The other allegations in the complaint are opposed basically on aforementioned plea/grounds, while supplementing the reply with certificate of incorporation dated 19.09.2011 and fresh certificate of incorporation dated 27.11.2011 upon change of name.
3.2: (Case of OP2): OP2 has filed detailed reply to the complaint and all the allegations are opposed, except that the complainant had bought product from it on website of Flipkat.com. The OP2 carries on the business of selling of goods, manufactured/ produced by others; the OP2 is not engaged in the selling of any goods manufactured or produced by its own. The OP2 has a distinct and a separate identity from the manufacture of subject product of Nokia; there is no relationship of a principal and of an agent between Nokia and OP2. Moreover, OP2 had also not given any extended warranty, as per complainant, it is OP3 who service provider for extended warranty. The OP2 is an online reseller registered on Flipkart.com and the product sold by OP2 carry warranty issued/provided by concerned manufacturer against manufacturing defect, subject to terms and conditions determined by the manufacturer only. However, in the present case, complainant has obtained extended warranty from OP3, complainant had already approached OP3 of alleged issue in the product, which was concealed by the complainant. Moreover, a dealer or retailer cannot be held liable for defect in the goods or products, reliance is placed on Hindustan Motor Ltd and Anr. Vs N. Siva Kumar (2000) 10 SCC 654 and Abhinandan vs Ajit Kumar Verma and Ors. (2008) CPJ336(NC) . It is also admitted case of complainant that he had purchased extended warranty separately from OP3, which suffices that OP2 has no liability or deficiency of services on its part. The complaint against OP2, being reseller, is liable to be dismissed; otherwise, there is no allegations of deficiency of services or of harassment against OP2.
3.3: (Case of OP3): The reply of OP3 is composite of certain admissions of the complaint, denial of allegations against OP3 as well as description of nature of services being rendered by OP3. The OP3 does not dispsute that complainant had extended warranty against payment of appropriate charges but he denies other allegations. The complainant had purchased extended warranty additionally from OP3, who is a just service provider and not a manufacturer of electronic items or their parts. There is standard practice that upon receiving complaint, OP3 arranges an expert-technician visit, the technician inspects and prepares the job sheet describing the issue, in case of defect require change of a part of a product, such request for defect part is forwarded to the manufacturer. On the same pattern, on receipt of complaint of complainant, OP3 arrange visited of expert technician, who scrutinize and it was found that repair of product cannot be carried, as well as the model of product was not available to be replaced, consequently refund for the product according to terms and conditions was offered, which was not agreed to the complainant and was refused by the complainant. The grievances of complainant remained unresolved because of his own decision of refusal to resolve issue. The OP3 filed terms and conditions of extended warranty with reply. Thus, complaint is liable to be dismissed.
4: (Evidence) : Complainant Shri Shiv Chander filed his affidavit of evidence, it is reiteration of the complaint along with documents filed. The OP1 filed affidavit of Ms. Sanchi Chhabra, authorized signatory of OP1; OP2 filed affidavit of Ms. Aakanksha Khandelwal authorized signatory of OP2 and OP3 filed affidavit of Mr. Pradeep Reddy, authorized signatory of OP3; their affidavits are on the pattern of their respective. The OPs also referred their respective documents filed with the reply.
5.1. (Final hearing) : The parties to the complaint filed their respective written arguments, factually the same are replica of their pleading and documents. The parties were also given opportunities to make oral submissions, Complainant himself made submission and Sh. Akash Singh, Advocate for OP1 and OP3 presented oral submissions, however, OP2 had no oral submissions.
5.2. Complainant in his written submission has also referred & highlighted the terms and conditions of extended warranty of OP3, in brief, the OP3 presented its case/reply contrary to the terms and conditions like in the email the amount assured is treated on calculations as Rs. 22,330/- in place of invoice price of Rs. 31,999/-, in reference to para no. G of scope of coverage, apart from amount of Rs. 1,920/- was offered as refund amount, which stand nowhere within the terms and conditions (paragraph P Service SLA Breach). It was done to avoid the legitimate claim of complainant; his TV is still lying with the service centre.
5.3. The OP1 in its written submissions, while maintaining the plea taken in reply, further asserts legal position that onus to prove deficiency of services was on the complainant, while relying upon SGS India Ltd. vs Dolphin International Ltd. CA no. 5759 of 2009, dod 06.10.2021 and Ravneet Singh Bagga vs KLM Royal Dutch Airlines and Anr. MANU/SC/707/1999, however, the complainant could not lead any evidence against OP1.
5.4. The OP2 in its written submissions while maintaining the plea taken in reply, emphasized that it is an admitted case of complainant that he had taken extended warranty policy separately for his TV from OP3 that too after initial warranty period of one year given when TV was purchased, which does not attract any role or liability of OP2/re-seller.
5.5. The OP3 also maintains the plea taken in the reply and in addition it refers the same case law, which has been relied upon by the OP1, since identical written arguments are addressed.
6.1 (Findings) : The contentions of the parties are considered analytically, keeping in view the evidence of the parties in the form of oral and documentary evidence. The contentions of the parties need not to be referred again, since their respective case have been already introduced apart from brief introduction in the final hearing, which have also been referred in para no. 5 above.
6.2: After taking into account stock of record and circumstances, it is held that complainant has succeeded to establish his complaint of deficiency of services against OP3 for the following reasons:-
(i) when the TV was purchased by the complainant, there was initial warranty of one year and there was problem in the TV after one year,
(ii) the complainant obtained extended warranty from OP3, the problem of TV was also attended by OP3 through its expert/technician but it was not resolved, it was subsisting and TV is lying with OP3,
(iii) the OP3 has not mentioned in its reply any specific amount of refund offered to complainant nor specific clause under which that amount was offered but complainant has filed record email of 07.03.2022 by OP3 to complainant; the OP3 mentions that product invoice value was Rs.31,999/- out of which applied depreciation value of Rs. 30,028.80p and the final value/ post depreciation was of Rs. 1,970.20p, which was offered to complainant to accept it, which was not agreed by the complainant. No terms and conditions have been specified and proved such depreciation value method,
(iv) the OP3 has also filed terms and conditions of extended warranty, in which different factors have been discussed but the complainant made counter plea that those terms are against OP3 that in case they failed to repair the product within 30 calendar days, they will refund the sum insured 80% purchase price of product for first year and 70% purchase price of product for second year of extended period but OP3 offered very less amount of Rs. 1,970.20p contrary to it,
(v) the invoice price was Rs. 31,999/- and the date of purchase was 08.06.2020, first warranty period had expired on 07.06.2021 and two year extended warranty purchased from OP3 was upto 07.06.2023. Therefore, the calculations of Rs. 1,970.20p by OP3 stand unexplained and it has also not been explained under what terms and conditions the same was governing vis-à-vis the complainant has referred appropriate clause no.P of such terms and conditions on the basis of which claim of Rs. 25,000/- has been made in the complaint. By calculating 80% of invoice price of Rs.31,999/-, being first year of extended warranty, the amount comes to Rs.25,600/-; the complainant claimed Rs.25,000/-,
(vi) OP1 is not seller of the TV product to the complainant, the complainant had bought TV on flipkart.com website from OP2 and
(vii) the OP2 is seller/reseller of the product and services of OP2 were over after selling the product as well as initial period of warranty of one year was also over, the problem in the TV had arisen after one year, there is inter-se email communication dated 07.03.2022 between the complainant and OP3 with regard to problem in the TV being period extended warranty tenure.
6.3: In terms of sub-paragraph (vi) and (vii) of paragraph no. 6.2 above, no case is made out against OP1 and OP2. In fact OP1 is alien to the cause of action, therefore, name of OP1 is strike off from the array of parties. The complaint is also dismissed against OP2.
6.4 In terms conclusion drawn, the complainant is held entitled for return of proportionate amount of Rs. 25,000/- in lieu of defective TV set, which is already with OP3, who had issued extended the warranty. The complainant has claimed interest at the rate of 18% pa, however, neither there is any agreed rate of interest nor the transaction was commercial in nature nor any concrete reasons are assigned for claiming interest at the rate of 18%, therefore, interest at the rate of 5% pa from the date of complaint till realization of the amount will justify both ends.
6.4. The complainant has claimed compensation of Rs. 1,00,000/-, the complainant has not given detail of his income, source of income and other financial aspect vis-à-vis he has faced trauma, while depriving of his assets and use of TV, thus, compensation and cost are quantified as Rs. 5,000/- against OP3.
7. Accordingly, the complaint is allowed in favour of complainant and against the OP3 to pay amount of Rs.25,000/- along-with simple interest of 5% p.a. from date of filing of complainant till realization of amount, apart from damages and cost of Rs. 5,000/- to be payable within 30 days from the date of receipt of this order.
In case, OP3 does not pay the amount within 30 days from date of receipt of this Order, OP3 will be liable to pay interest @ 6% per annum on amount of Rs.25,000/-. The name of OP1 is strike off from the array of parties. The complaint against OP2 is dismissed.
8: Announced on this 25th May, 2023 [ज्येष्ठ 04 , साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
