Punjab

Ludhiana

CC/16/432

Guriqbal Singh - Complainant(s)

Versus

Flipkart India Pvt.Ltd - Opp.Party(s)

compl.in person

05 Sep 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                            Complaint No: 432 dated 06.06.2016.                                                               Date of decision: 05.09.2017

                   

Guriqbal Singh s/o Sh.Kulbir Singh r/o 260-B, Rajguru Nagar, Ludhiana-141012.(Punjab).                                                                                                                                                                                        ..…Complainant                                                      Versus

1.Flipkart India Pvt. Ltd., No.42/1 & 43, Kacherkanahalli, village Jadigenehalli, Hobli, hoskote tq, Bangalore-560067.

2.WS Retail Services Pvt. Ltd., Registered Office: Ozone Many Tech Park, No.56/18, ‘B’ Block, 9^th Floor, Garvebhavipalya Hosur Road, Bangalore, Karnatka-560068, India.

3.Xiomi India c/o Ikeva Business Centre, 8^th Floor, Umiya Business Bay Tower-1, Cessna Business Park, Kadubeesanahalli, Marathahalli-Sarapur Outer Ring Road, Bangalore-560103, India.                                                                                                                                                                           …..Opposite parties  

            Complaint under Section 12 of Consumer Protection Act, 1986.

QUORUM:

SH. G.K. DHIR, PRESIDENT                                                                         SH. PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant               :         Sh.Harpreet Singh, authorized representative     For OP1 and OP2            :         Sh.Sunil Dutt, Advocate                                    For OP3                           :         Sh.Ashok Kumar, Advocate

ORDER

PER G.K. Dhir, PRESIDENT

1.                           Complainant, a physically challenged person, purchased mobile handset/VH16110 Model Mi4 bearing IMEI No.867079021021932, MOBE4G2SKSQJSPGJ (Mi4 WCDMA-64G-White-India) through online booking on payment of Rs.17,999/- through credit card vide invoice dated 9.11.2015. This mobile handset was delivered to the complainant at his residence at 260-B, Rajguru Nagar, Ludhiana. This mobile handset started giving network problem, because no service from tower used to be shown. Mobile handset was taken to the service centre, where the defect was diagnosed for finding that problem is in the motherboard of the mobile. Job sheet dated 18.3.2016 was issued for replacing the motherboard and making the product functional properly. Mobile handset was returned on 20.4.2016 i.e. after unreasonable delay of 28 days. After using this mobile handset, it transpired that problem of network drop or of no service shown on tower still persists. Even the MIC of phone stopped working on using of ear phone. Again the mobile handset was taken to the service centre, where problem in the motherboard of mobile was detected. Job sheet dated 22.4.2016 was issued for replacing the motherboard and making the product due functional. Problem of malfunctioning and delay in service reported on 4.4.2016, 11.4.2016, 13.4.2016, 14,4,2016, 22.4.2016, 2.5.2016 and 4.5.2016 through emails. Legal notice through speed post even was served, but to no effect and as such, this complaint filed for claiming relief of seeking directions against OPs for removal of the defects in the goods  as well as for                                       refunding the full amount of purchased mobile handset along with interest or to replace the mobile handset with new one along with costs of petition and compensation for physical stress, mental tension, harassment and agony of worth of Rs.75,000/-. Litigation costs of Rs.5000/- claimed along with value of product as Rs.17,999/-.

2.                 In written statement filed by Op1, it is claimed that complaint being false, frivolous and vexatious and not disclosing any cause of action against Op1 merits dismissal. OP1 has a separate and distinct entity from remaining Ops because it is carrying on different business. Reply is signed and verified by Sh.Amit Pratap, the duly authorized signatory of OP1. OP1 is the whole seller involved in B2B sales of the products manufactured by others. OP1 is neither the manufacturer and nor seller of the mobile phone and as such, he is not liable for any defects in the mobile, particularly when there is no privity of contract between the complainant and him. Complainant has not produced on record any material to establish that he is a physically challenged person and moreover, relief on that ground alone is opposed. Complainant is not a consumer. Op1 is owned and controlled by Flipkart Internet Pvt. Ltd. Job sheets produced by the complainant does not pertain to the complainant because they are in the name of Harpreet Singh. In view of this, it is claimed that the complainant cannot be said to have taken his mobile handset for repair to the authorized service centre. Service centre has not been impleaded as party and as such, complaint merits dismissal, due to that. Complainant never approached OP1 for lodging any complaint. Op1 never received any legal notice from the complainant. There is no deficiency in service on the part of OP1 and nor complainant has suffered any loss by any act of Op1. No specific relief against Op1 even claimed, but by claiming that the complaint is untenable and unreasonable. By denying other allegations of complaint, prayer made for dismissal of complaint.

3.                 In separate written reply filed by OP2, it is pleaded interalia as if Op2 is carrying on business of sale of goods manufactured/produced by others. OP2 is a registered reseller on the website of Flipkart.com. OP2 sells the products manufactured or traded by others under their trademarks, through the website. Op2 provides exceptional customer support services. Mrs.Swati Singh is authorized to file the reply and sign the  Vakalatnama  and to submit the   affidavit. Complainant has suppressed the material facts from this Forum and as such, complaint alleged to be filed by way of abusing the process of law. OP3 is the manufacturer, but the authorized service centre of OP2 has not been impleaded as party. There is no relationship of principal and agent between OPs. It is claimed that entire grievance of the complainant relates to the defects in the mobile after sale and as such, liability of removal of defects is either of the manufacturer and nor     of the service centre. Complainant is aware about all these facts and as such, OP2 cannot be held liable for the defects in the product. Even  OP2 claims that complaint being false, vexatious and frivolous, merits dismissal. Other facts of the complaint virtually are denied.

4.                 In separate written reply filed by OP3,besides claiming the complaint as false, vexatious and frivolous, it is claimed that OP3 offered for settlement of matter to the complainant many times by way of providing replacement of the alleged product in dispute with a new and upgraded handset of higher model as a goodwill gesture because of delay in repairing of the product of the complainant. Even on 1.9.2016, offer was submitted on same lines, but complainant refused to settle the matter and as such, malafide is attributed to the complainant. In view of non-acceptance of offer by the complainant as referred above, he is not entitled to any relief from this Forum. However, it is claimed that if the complainant to accept the offer of replacement, then OP3 would have replaced the product with new handset and as such, there is no deficiency in service on the part of OP3.

5.                 Sh.Harpreet Singh, representative of complainant to prove the case of complainant tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C16 and Ex.C13A to Ex.C13C and then closed the evidence on behalf of complainant.

6.                 On the other hand, counsel for Op1 and Op2 suffered separate statements on behalf of OP1 and OP2 to the effect that written statement filed by OP1 and Op2 may be read as evidence of OP1 and OP2 and thereafter, closed the evidence.

7.                 Counsel for OP3 tendered in evidence affidavit Ex.RA3 of unnamed person and thereafter, closed the evidence.

8.                 Written arguments not submitted by any of the parties. Oral arguments alone addressed by counsel for parties and those were heard. Records gone through carefully.

9.                 From the pleadings of the parties and submitted affidavits, it is made out that the complainant has purchased the mobile phone in question through retail invoice/bill Ex.C3 for consideration of Rs.17,999/- and the bill was issued by OP2 in this respect. This mobile was purchased through online by availing services of OP1. Offer for replacement has been given by the manufacturer i.e. OP3 through submitted affidavit Ex.RA3 and as such, liability remains of OP3 only and not of remaining Ops because manufacturing defect can be removed by the manufacturer only. As Op1 provides platform for the purchase of online mobiles through OP2 and as such liability of OP1 certainly is not there for removal of manufacturing defect, particularly when the defect occurred after more than four months of use of the mobile because perusal of Ex.C3 reveals that the bill was issued on 9.11.2015, but perusal of first job sheet Ex.C5 reveals that it was taken to the service centre of the manufacturer on 18.3.2016. In view of use of the mobile phone for more than 4 months without any problem by the complainant, it is obvious that subsequent fault, if any, arose was on account of defects in the mobile phone. That defect was of network drop problem and of no service shown on the tower as mentioned in job sheet Ex.C5. Even after repair on this occasion, the problem continued and that is why, complainant had to take the mobile phone to the service centre of Op3 again on 22.4.2016, when the job sheet Ex.C6 was prepared. This time the reported fault was of MIC not working while using the ear phone. Reference of same specifically made in Ex.C6. However, it is the claim of complainant that mobile after repair used to be returned to him after more than 20 days, despite the fact that stipulation on back of Ex.C6 is endorsed to the effect that repair will be carried out within two working days from the date of receipt of the faulty product. That also is an act of deficiency in service on the part of manufacturer and service centre and as such, certainly complainant stood harassed due to problems in the mobile phone and of its non repair within the stipulated period of two working days. It is vehemently contended by the complainant that he had been submitting requests time and again earlier through emails for replacement of the mobile phone as disclosed by different pages of Ex.C7 containing emails correspondence, but despite that the mobile phone had not been replaced and as such, he has suffered a lot of mental tension and agony due to conduct of Ops in not abiding by the commitment to provide perfect services.  That submission of complainant certainly has force because the offer for replacement not submitted earlier despite emails correspondence held by the complainant on different dates of 14.4.2016, 19.4.2016, 13.4.2016 and 8.3.2015 as revealed by contents of email pages of Ex.C7 and also by contents of Ex.C8 and Ex.C13. Even this correspondence establishes that notice before filing the complaint was issued to OPs and the notice was sent through speed post/registered post also. Postal receipts Ex.C13/A to Ex.C13/c in this respect are produced on record along with track complaint status obtained from Indian Post Office produced on record as Ex.C15. Besides, earlier two Ops i.e. Op1 and OP2 were proceeded against ex-parte and that order dated 4.8.2016 was set-aside by the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh as revealed by copy of order dated 8.11.2016 passed in First Appeal No.661 of 2016 titled as Flipkart India Pvt. Ltd vs. Guriqbal Singh and others, copies of which are produced on record as Ex.A3 and Ex.A4. So, in view of non making of offer earlier by OP3 for replacement and in view of above facts, it is made out that the complainant certainly suffered lot of mental tension and harassment after purchase of the mobile phone in question manufactured by OP3. Liability of OP1 and Op2 as seller or the person providing platform for purchase through online certainly is not there because they did not render deficient service at all and nor any allegation of providing of deficient services levelled against Op1 and Op2. So, virtually in view of inherent defect in the mobile handset, liability for replacement of the same is of OP3.

10.               It is vehemently contended by representative of complainant that reply of notices sent, has not been submitted by any of Ops. Even if that be the position, despite that in view of deficient services provided by the manufacturer and of not returning of the mobile set after repair by the service centre of OP3, it has to be held that the complainant is entitled for the new replaced mobile handset of worth of Rs.17,999/- from OP3. However, in view of harassment of complainant, he is entitled for compensation for mental harassment and agony and also to litigation expenses. Keeping in view the magnitude of deficient service provided by OP3 and its service centre, it is fit and appropriate to allow award of interest on the amount of compensation and costs, in case payment of same not made within 30 days by Op3 from the date of receipt of copy of this order. That rate of interest should be at par payable on FDR by the Nationalized Bank in these days.

11.               As a sequel of above discussion, complaint dismissed against OP1 and OP2, but same is allowed against OP3 i.e. Xiomi India in terms that OP3 will hand over new mobile set of worth of Rs.17,999/- to complainant within 30 days from the date of receipt of copy of order. Compensation for mental harassment and agony of Rs.4,000/- (Rupees Four Thousand only) and litigation expenses of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) allowed in favour of complainant and against OP3. Amount of compensation and litigation expenses be paid by OP3 within 30 days from the date of receipt of copy of order, failing which complainant will be entitled to interest on these amounts @6% per annum from today onwards till payment. Copies of order be supplied to parties free of costs as per rules.

12.               File be indexed and consigned to record room.

 

                                         (Param Jit Singh Bewli)                      (G.K. Dhir)

                                         Member                                              President

Announced in Open Forum.

Dated: 05.09.2017.

Gurpreet Sharma