Haryana

Karnal

CC/603/2022

Ashmit Dhawan - Complainant(s)

Versus

Flipkart India Private Limited - Opp.Party(s)

Naveen Kherarpal

06 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                      Complaint No. 603 of 2022

                                                      Date of instt.27.12.2022

                                                      Date of Decision:06.02.2024

 

Ashmit Dhawan son of late Shri Ashish Dhawan, resident of house no.7, Jawahar Nagar Bank Colony Karnal Haryana mobile no.8816005555.

                                               …….Complainant.

                                              Versus

 

1. Flipkart India Pvt. Ltd. registered office at Vaishnavi Summit, ground floor, 7^th main 80 feet Road, 3^rd Block, Koramangala Industrial Layout, Banglore Karnataka-560034.
2. Digicare Services shop at-FF03, Second floor, Super Mall Sector-12, Karnal Haryana (authorized service center of Apple India)
3. Apple India Pvt. Ltd. no.24, 19^th floor, Concord Tower, U.B.City, Vittal Malya Road, Bangluru, Karnataka-560001 (Manufacturer).

 

…..Opposite Parties.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

              Dr. Suman Singh……Member

 

Argued by:  Shri Naveen Khetarpal, counsel for the complainant.

                    Shri Dheeraj Sachdeva, counsel for the OP no.1.

                    Shri Devki Nandan, counsel for the Op no.2.

                    Shri Tapan Verma, counsel for the OP no.3.

 

                    (Jaswant Singh, President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant was in need of an ear pod for his own use and the complainant saw the advertisements on the website of OP no.1 where the OP no.1 shown that the original and brand new Apple Air Pods are available for sale and it was shown as branch new product. Under the influence of the advertisements of OP no.1, the complainant placed an order for Apple Air Pods with charging Case Blutooth and head set with Mic. OP no.1 sent the ordered product to the complainant on 16.05.2022 and in the packing, the said product alongwith a bill was found which was issued by some Luminary Lifestyle Pvt. Ltd. with charging case Bluetooth and headset with Mic IMEI/serial no.SH16FNR74X2Y. The complainant paid payment/consideration of Rs.8023/- to OP no.1 in advance. After purchase of the ear pod, the complainant started using the unit as per guidelines issued by OP no.3 and the same worked only for some days, but after 2 months of purchase the complainant faced some problems in the product. The air pods started giving trouble like the sound was no clear. The complainant shown the air pods at the service centre of OP no.3 at Pune and the service center told to the complainant that the air pods were purchased and activated on 07.10.2021 and the warranty of one year of the product will expire on 06.10.2022. The complainant shocked to know the said facts whereas complainant purchased the same from the OP no.1 on 15.05.2022. The complainant asked to the service center to provide the activation/sale date and job sheet, but the official of service center refused to provide any job sheet or the date of purchase of product. The act of service centre shows that the OP no.1 and OP no.3 are in collusion with each other and had sold a used and second hand product to the complainant. On 23.09.2022, complainant again approached to service center i.e. OP no.2 and told about the sound not clear problem but Op refused to issue the job sheet. The complainant asked to the service centre to provide the warranty status of his product and again the complainant was shocked to know that the date of purchase shown in the system of OP no.2 is of 07.10.2021 and the warranty of one year will expire on 06.10.2022. In this way Ops no.1 and 3 have cheated the complainant and have sold a second hand and defective product to him. Thereafter, complainant approached the OP no1 via toll free number of OP no.1 and requested either to replace the product being defective and second hand or to refund the bill amount to the complainant but OPs did not give any satisfactory response to the complainant. There is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that OP no.1 provides online marketplace platform/technology and/or other mechanism/service to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods by and between respective buyer and sellers and enables them to deal in various categories of goods. The OP no.1 is an electronics platform which acts and intermediary to facilitate sale transactions between independent third-party sellers and independent end customer. The OP no.1 does not directly indirectly sell any products on flipkart platform. In the present complaint, it can be evidenced that the actual seller of the product is a third party seller (which is not impleaded as a necessary party). The complainant himself mentioned in  his complaint that the invoice was issued by Luminary Lifestyle Pvt. Ltd. seller which is not impleaded as a necessary party. Hence, request for replacement/refund made by the complainant cannot be fulfilled by the OP. The complainant has wrongly arrayed the OP no.1 as a party.  There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version stating therein that in the present case no negligence or fault or imperfection can be attributed to the OP no.2 because the OP no.2 was only providing repair services to the customers of the OP no.3. The OP no.2 rectified the device and returned the same to complainant. The OP no.2 is only responsible to provide service to the device which is covered under the warranty period. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.3 filed its written version raising preliminary objections with regard to maintainability; jurisdiction and  mis-joinder and non-joinder of necessary party. On merits, it is pleaded that complainant purchased the product from an entity namely Luminary Lifestyle Pvt. Ltd. through OP no.1’s website therefore, in respect of the transaction of the sale of product, the complainant does not fall under the category of ‘consumer’ as per section 2(7) of the Consumer Protection Act, 2019. OP no.3 has neither supplied the product and nor rendered any services to the complainant and thus complainant is not a consumer in relation to the OP no.3. OP no.3 improperly and incorrectly joined as an OP in the present complaint on account of the fact that the used and second hand product received by the complainant and admittedly purchased from Luminary Lifestyle Pvt. Ltd. through OP no.1 and not from OP no.3. The transaction of sale and purchase is communicated between the complainant and OP no.1. Since the complainant has no relation with the OP no.3, the complainant is not entitled to any relief on account of OP no.3. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, tax invoice Ex.C1 and Ex.C2, copy of repair acceptance form Ex.C3, copy of service report Ex.C4, copy of credit card statement Ex.C5 and closed the evidence on 10.05.2023 by suffering separate statement.

7.             On the other hand, learned counsel for no.1, on 26.07.2023 suffered a statement to the effect that written statement of OP no.1 be read as part and parcel of evidence on behalf of OP no.1.

8.             Learned counsel for the OP no.2 has tendered into evidence affidavit of Sunil Kumar Manager Ex.RW2/A, copy of service report Ex.RW2/1 and closed the evidence on 28.09.2023 by suffering separate statement.

9.             Learned counsel for the OP no.3 has tendered into evidence affidavit of Sandeep Karmakar Ex.OP3/A and closed the evidence on 09.11.2023 by suffering separate statement.

10.           We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

11.           Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that on 16.05.2022, complainant purchased an Apple Air Pods from the site of OP no.1 for an amount Rs.8023/-. After two months of its purchase, the air pods started giving trouble like the sound was no clear. The complainant shown the air pods at the service centre of OP no.3 at Pune and the service center told to the complainant that the air pods were purchased and activated on 07.10.2021 and the warranty of one year of the product will be expired on 06.10.2022. The complainant was shocked to know that the date of purchase shown in the system of OP no.2 is of 07.10.2021. The OPs no.1 and 3 have sold a second hand and defective product to complainant. Complainant requested the OP no1 via toll free either to replace the product being defective and second hand or to refund the bill amount to the complainant but OPs did not give any satisfactory response to the complainant and prayed for allowing the complaint.

12.           Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that the grievance of the complainant is with regard to the alleged defects in the product provided by the seller, which is not impleaded as party. The role of the OP is an intermediary only, that is, to provide an online platform to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its flipkart platform and the concerned contract(s) of sale and purchase is between the seller and the buyer only. The whole grievance of the complainant is only against the seller. The liability of refund/replacement of the product is with the seller and not with the OP and prayed for dismissal of the complaint qua OP no.1.

13.           Learned counsel for the OP no.2 has argued that there is no negligence or fault on the part of the OP no.2 because the OP no.2 was only providing repair services to the customers of the OP no.3. The OP no.2 rectified the device and returned the same to complainant. The OP no.2 is only responsible to provide service to the device which is covered under the warranty period. He further argued that in the whole complaint nowhere mentioned by the complainant that OP no.2 refused to provide the service and lastly prayed for dismissal of the complaint qua OP no.2.

14.           Learned counsel for the OP no.3 argued that the complainant purchased the product from an entity namely Luminary Lifestyle Pvt. Ltd. through OP no.1’s website. OP no.3 has neither supplied the product and nor rendered any services to the complainant and thus complainant is not a consumer in relation to the OP no.3. OP no.3 improperly and incorrectly joined as an OP in the present complaint on account of the fact that the used and second hand product received by the complainant. The transaction of sale and purchase is communicated between the complainant and OP no.1. Since the complainant has no relation with the OP no.3 and lastly prayed for dismissal of the complaint qua OP no.3.

15.           We have duly considered the rival contentions of the parties.

16.           Admittedly, on 16.05.2022, the complainant purchased an Apple ear pod amounting to Rs.8023/- from the website of OP no.1.

17.           Complainant has alleged that on 16.05.2022, he purchased an Apple Air Pods from the site of OP no.1 for an amount Rs.8023/- whereas the OPs have sold a second hand and defective product to complainant. The onus to prove his version was relied upon the complainant. To prove his version complainant has placed on file tax invoice Ex.C1 dated 15.05.2022, tax invoice Ex.C2 dated 16.05.2022, copy of repair acceptance form Ex.C3, copy of service report Ex.C4, copy of credit card statement Ex.C5. It is evident from the tax invoice Ex.C1 and Ex.C2, the complainant placed an order with OP no.1 for purchase of Apple ear pod and he received the same on 16.05.2022. It is evident from the repair acceptance form Ex.C3 dated 23.09.2022 and service report dated 23.09.2022,  the ear pod of the complainant has became defective but in the column of purchase the service centre mentioned the date of purchase as 07.10.2021 whereas complainant purchased the said ear pod on 16.05.2022. The said fact has not been denied by the OP.

18.           In view of the above mentioned facts and circumstances of the case, it is clear on the record that OPs no.1 and 3 have sold the defective and second hand ear pod to the complainant. Thus, the said act of the OPs no.1 and 3 amounts to deficiency in service and unfair trade practice.

19.           During the course of arguments, learned counsel for the complainant submits that complainant has purchased the new ear pod and now he has no need to the ear pod and request for refund of the cost of the ear pod.

20.           The complainant purchased the ear pod for an amount of Rs.8023/-. Hence, the complainant is entitled for refund of the said amount alongwith compensation for mental agony and harassment and litigation expenses, etc.

21.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs no.1 and 3 to refund Rs.8023/-the price of the ear pod to the complainant.  We further direct the OPs no.1 and 3 to pay Rs.7,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.3300/- for the litigation expense. This order shall be complied with within 45 days from the receipt of copy of this order. Both the OPs are jointly severally liable. The complainant is also directed to return the ear pad in question to the OPs. Complaint qua OP no.2 stands dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:06.02.2024                           

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)             (Dr. Suman Singh)

           Member                         Member