IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA 

Tuesday,   the 31st day of October, 2017

Filed on 17.02.2017.

Present

    

1) Smt. Elizabeth George (President)

2) Sri. Antony Xavier (Member)

3) Smt. Jasmine D (Member)

in

CC/No.51/2017

 Between

Complainant:           Opposite parties:

 

Sri.K.C.Anto 1. Flipkart India Pvt.Ltd

S/o Thomas Cherian                                                               No.42/1&43

Kappil Koippallil Kacherakanahalli Village

Punnakunnam Jadigenahalli Hoobly

Pulinkunnu-688 504             Hoskote Taluk Banglore-560067

(By Adv. Awanish kumar & Ablisha.C. Soman

 

2. Hybrid Systems City Centre

General Hospital Jn.

Alappuzha

 

3. Huawei Telecommunications

8th Floor, Tower-A , Space-1

Tedx park, Sobha round Sector-49

Gurgaon, Hariyana-122 001

(By Adv.A.K Rajasree)

 

 

O R D E R

SMT. JASMINE D. (MEMBER)

The case of the complaint in short is as follows.

Complainant purchased a mobile phone for an amount of Rs. 8492/-   through the 1st opposite party.   The product has one year warranty.  The product became defective after 3 months from date of purchase and the complainant approached 2nd opposite party who is the authorized service centre and entrusted the phone on 3/1/17 to rectify the defects.  After 2 weeks the 2nd opposite party intimated the complainant that they could not rectify the defect and returned the phone without rectify the defect.  Now the phone is totally functionless and complainant could not use the phone.  The complainant sustained much mental agony and hence filed this complaint.

 

2 Notice was served to the opposite parties, 1st  and 3rd     opposite party filed version. 2nd opposite party did not appear before the forum hence set exparte.

3 Version of the 1st opposite party is as follows.

That the 1st    opposite party only acts as an intermediary through its web interface www. Flipkart. Com and provides a medium to various sellers all over India to offer for sale and sell their products to the users of the Flipkart Platform.  It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders.  The answering 3rd opposite party does not directly or indirectly sells any products on Flipkart Platform.  Rather all the products on Flipkart Platform are sold by 3rd party sellers, who avail of the online market place services provided by the answering 3rd opposite party on terms decided by the respective sellers only.  The sellers directly raise invoices to the end customers for the products sold and bear all contractual risks.  The customers purchasing products from such sellers directly make the payments for their purchases either on a pre-paid basis (net banking/ credit card/ debit card) or cash on delivery basis. The ultimate monetary beneficiary of such sale proceedings is the seller.  In the instant complaint also, it is evident from the invoice copy attached by the complainant with his complaint that the actual seller of the product is a 3rd party seller and not the  3rd opposite party herein.  It is pertinent to mention here that the complainant has wrongly arrayed this 3rd opposite party in the present complaint.  That the  3rd opposite party has not charged any amount from the complainant for using the services available on online marketplace Flipkart Platform. It is submitted that the complainant does not fall within the ambit of the definition of the term “Consumer”.  That the 3rd opposite party submits that role/involvement of  3rd opposite party is as an intermediary only, that is, to provide online platform to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its Flipkart Platform.  The services of  3rd opposite party are similar to a shopping malls where various shops are rented out to different sellers who independently carryout sale proceedings with the customer/visitors of the shopping mall in case of  any defect in the goods sold by such shop owner/ seller, who is held liable for the consequences and not the owner of the shopping mall where such shops are situated.  In the same way, the 3rd opposite party is not involved in the entire transaction 

except for providing the online platform for the transactions and the concerned contracts of sale and purchase is between the seller and the buyer (here complainant) only and hence this 3rd opposite party shall not be held liable for any liability owing to such contract.  There is no deficiency in service on the part of the opposite party and hence the complaint may be dismissed with cost.

4. Version of the 3rd opposite party is as follows:-

  That the 3rd opposite party is a well-known company of International repute and is engaged in business and manufacturing of mobiles, Digital products (Laptop/tablet) and other accessories.  The 3rd opposite party has always taken due care and caution of the law of the land and has always taken due care and caution of the law of the land and has always been in compliance of all the acts and the rule of India.  It has always taken best possible steps to satisfy all its customers.  It is true that complainant had purchased mobile phone on 16/2/16.  Complainant approached the 2nd opposite party the service centre on 3/1/17 and the complaint reported power button   is  not functioning.  The authorized service centre has sent device but on inspection this system that liquid damage on the product and the same was intimated to the complaint.   As authority they are caused due to external factor the warranty lapsed and which was informed that repair should be chargeable in the terms and conditions of warranty. it is subsequently  stated that damages caused due to external are  not covered in the warranty and the opposite party is not liable to repair handset free of cost. There is no deficiency in service on the part of the 3rd opposite party hence the complaint may be dismissed.

5. Complainant was examined as PW1 and Ext.A1 and Ext.A2 were marked. Complainant produced the phone which was marked as MO1.

6. Considering the allegations of the complainant and contentions of opposite party1 &3 the forum has raised the following issues.

        1)      Whether there is any deficiency in service on the part of the opposite party?

        2)       Whether the complainant is entitled to get any relief?

6. The case of the complaint is that the complainant had purchased a mobile phone manufactured by the 3rd opposite party through flipkart on 17/2/16. The product has one year warranty and during the warranty period the product became defective and entrusted to the 2nd 

Opposite party but the 2nd opposite party returned to the phone without rectifying the defect.  The act of the opposite party caused much mental agony to the complainant hence filed this complaint seeking replacement of the phone together with compensation and cost.  

Complainant produced 2 documents which were marked as Ext.A1 and Ext.A2.  Ext.A1 is the retail bill.     Ext.A2 is the job sheet dated 3/1/17.  According to the complainant the product became defective during the warranty period and the complainant is entitled to get the product rectified under warranty.    According to the 3rd opposite party the defect caused to the phone is liquid damage and which will not covered under warranty.  On a perusal Ext.A2 document which was given by the 2nd opposite party when the complainant entrusted the phone.  In Ext.A2 nothing was mentioned about liquid damage.  Therefore contention of the 3rd opposite party is not sustainable.   Admittedly the product is defective and not at all functioning.   Since the defect occurred during warranty period the complainant is entitled to get it repaired under the warranty benefits and the opposite parties are liable to rectify the defect.  Since the opposite parties failed to rectify the defects they have committed deficiency in service.  The opposite parties failed to rectify the defects which arose within the warranty period.  Therefore   the complainant is entitled to get it replaced.  So the complaint is to be allowed.  On scanning the entire evidence we cannot see any deficiency in service on the part of the 1st opposite party  so we cannot held 1st opposite party liable for any deficiency in service.  Since there is deficiency in service on the part of the 2nd  and 3rd opposite party they  are liable to compensate the   complainant for the mental agony and   inconvenience  caused to him. 

In the result the complaint is allowed,  2nd and 3rd opposite parties are directed to replace the mobile phone with  a new one of the same model/price.  2nd and 3rd opposite parties are further directed to pay an amount of Rs. 1000/-(Rupees Thousand only) towards compensation and Rs.1000/- (Rupees Thousand only)  towards cost.  Order shall be complied within one month from the date of the receipt of this order.   On compliance of the order the opposite parties can collect the MO1 from the office of the Forum. 

 

 

 

 

 

Dictated to the Confidential Assistant transcribed by him corrected by me an pronounced 

in open Forum on this the 31st   day of  October, 2017.

 

 

Sd/-Smt. Jasmine D (Member)

     Sd/-Smt. Elizabeth George  (President)

     Sd/-Sri.Antony Xavier (Member)

                       

 Appendix:-

Evidence of the complainant:- 

PW1 - K.C Anto(Witness)

Ext.A1  - Copy of Retail invoice dtd. 17-2-16

Ext.A2 - Job Sheet dtd. 3-1-17

Evidence of the opposite party:-  

 

 

//True copy//

 

       By Order

 

 

 

Senior Superintendent

To

Complainant/Opposite parties/SF

 

Typed by: Br/-

Comped . by: