IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of October, 2024
Present: Sri. Manulal V.S. President
Smt.Bindhu.R, Member
Sri. K.M. Anto, Member
C C No. 42/2024 (Filed on 02/02/2024)
Complainant :
Arjun sasi
Orapankal (H)
Chempilavu .P.O.
Kidangoor,
Kottayam,
Kerala - 686584
Shipping Adress
Arjun Sasi Brilliante,
Brillinate Study Centre
Pala - 686573
Kerala
Vs.
Opposite Parties :
1) Flipkart Internet Private Limited,
Buildings Alyssa,
Begonia & Clover,
Embassy Tech Village,
Outer Ring Road,
Devarabeesanahalli Village,
Bengaluru - 560103,
Karnataka
(By Adv. Manu J Varappally)
2) Samsung India Electronics Private Limited,
6th Floor,
DLF Center
Sansad Marg
NewDelhi
DL IN 110001
(By Adv. Manu J Varappally & Lithin Thomas)
3) Samsung Care Pala (Oryon)
Adattu avenue,
First floor,
20/359/15 & amp; 16,
Kurishupally
Junction Pala - 686575
(By Adv. Lithin Thomas)
O R D E R
Sri. Manulal V.S. President
This complaint is filed under Section 35 of the Consumer Protection Act, 2019.
The case of the complainant is as follows:
On 10-06-2023, the complainant purchased a Samsung Galaxy F23 5G mobile phone through the website of the online portal of the first opposite party after exchanging his MI Redmi Note 9 pro mobile phone. Within two months from the date of purchase, the mobile phone showed network complaints, and the phone started to restart automatically. The phone also showed major complaints like overheating, hanging, charging issues, and mic complaints within six months of the purchase. The complainant repaired the mobile phone on 26-01-2024, under warranty by the third opposite party. But after that also the phone showed problems. On 31-01-2024, the company replaced the motherboard of the mobile phone. But the complaint persists even after the replacement of the motherboard. Hence, this complaint is filed by the complaint praying for an order to direct the opposite parties to pay Rs. 17,290/- and compensation of Rs. 15,000/- along with Rs.8000/- as the cost of this litigation.
Upon notice from this commission, the first and second opposite parties appeared before this commission and filed separate versions. Despite receiving notice from this commission on 14-02-2024, the third opposite party neither cared to appear before this commission nor to file a version. Hence, the third opposite party is set exparte.
Version of the first opposite party is as follows:
The first opposite party is the owner of the website www.flipkart.com along with its Mobile Application named "Flipkart, which inter-alia is engaged in providing trading/selling facilities over the internet through its platform. First opposite party is an online marketplace e-commerce entity defined under the Consumer Protection Act, 2019, and Consumer Protection (E-commerce) Rules, 2020. The 'Flipkart Platform' is an electronic marketplace model E-commerce platform that acts as an intermediary to facilitate sale transactions between independent third-party sellers and independent end consumers. It is submitted that these sellers are separate entities controlled and managed by different persons/stakeholders.
The business of the opposite party falls within the definition of an "intermediary under Section 2(1)(w) of the Information Technology Act, 2000. The opposite party is protected by the provisions of Section 79 of the Information Technology Act, 2000. The complainant placed the order for a SAMSUNG Galaxy F23 5G (Forest Green, 128 GB) on 10-06-2023, which was delivered to the complainant on 12-06-2023. Till today, the complainant never contacted the first opposite party to report any issue regarding this product. The brand of the product intimated to the first opposite party that the part replacement had been done, and after the part replacement, the product was working fine. If there were any faults, the same would be covered by the brand of the product only. The first opposite party only acts as an intermediary and is not liable for any grievances addressed in the complaint. The complainant has not added the seller. i.e., CIGFIL Ltd in the array of parties.
The complainant ordered the product through the platform of the opposite party after agreeing to the terms and conditions mentioned on the website of the opposite party. Flipkart Platform clearly states that the contract of sale is a bipartite contract between the buyer and the seller, and the first opposite party is not a party to it. Flipkart does not make any representation or warranty as to specifics (such as quality, value, salability, etc) of the products or services to be sold or offered to be sold or purchased on the platform. Flipkart does not implicitly or explicitly support or endorse the sale or purchase of any products or services on the platform. Flipkart accepts no liability for errors or omissions, whether on its behalf or with third parties.
Flipkart is not responsible for any non-performance or breach of any contract entered into between Buyers and Sellers. Flipkart cannot and does not guarantee that the concerned Buyers and Sellers will perform any transaction concluded on the platform. Flipkart shall not and is not required to mediate or resolve any dispute or disagreement between Buyers and Sellers. Flipkart does not make any representation or warranty regarding the item-specifics (such as quality, value, salability, etc.) of any of the products. Flipkart does not at any point of time during any transaction between Buyer and Seller on the platform come into or take possession of any of the products or services offered by seller, nor does it at any point gain title to or have any rights or claims over the products or services offered by Seller to Buyer. There has been no deficiency of service on the part of the first opposite party.
The second opposite party filed version contenting as follows:
The second opposite party is a well-reputed company and has a very large customer base among others, it manufactures and manages electronic appliances and mobile handset business and has its office at Samsung India Electronics Pvt. Ltd., Sansad Marg, New Delhi.
The complainant purchased a Samsung Handset on 10.06.2023, Serial No- RZCW50XAWSV and Model No. SM-E236BZGH at a consideration of Rs.15,499/-. (Rupees Fifteen Thousand Four Hundred and Ninety Nine Only) The complainant alleged that the product was not working properly but suppressed the support he received from the second opposite party.
In the Samsung product if some defects are noticed, that will not automatically come within the meaning of manufacturing defect and there may be possibility for that defect due to mishandling, improper handling, or any other reasons also which could be rectified.. The second opposite party, from its record, could find that, after utilization of the product for 7 months and 21 days, the complainant elevated the issue of Mic and Wi-Fi not working and heating issues in the said unit. On diagnosis of the said unit, the Mic issue was resolved by replacing the main PBA and sub-PBA under warranty as per the complainant's demand. As the complainant was facing the issue of Mic in the said set for which the motherboard was replaced, but the issue persists in the said set for which the complainant was suggested to visit nearby MSC and also to submit the said handset for proper diagnosis, but same was denied, and the complainant was only adamant for refund or replacement. Therefore, there are no legal obligations on the part of the second opposite party or their service center to carry out any repair without proper diagnosis. The second opposite party, out of a goodwill gesture, suggested the complainant visit a nearby MSC, but the same was denied. The complainant did not agree to any such terms offered on goodwill by the second opposite party for repair. It is also pertinent to mention that the defects in the said handset happened due to improper handling done to the handset. Thus, the damages in the handset occur due to physical damages and mishandling or improper handling done by the complainant, or no defects in the set; in that scenario, refund, and replacement of the set were not included in the warranty terms and conditions of the said set.
The complainant had suppressed material facts, facts which only show that there were no manufacturing defects in the said product within the warranty period and that post-warranty period, when the handset was taken to the service center, inspection was carried out for the handset and out of goodwill gesture the answering opposite party resolved the issue but still the issue persists in the said set for which the complainant was suggested to visit nearby MSC but same was denied and was adamant only for refund/replacement. This only shows that there were no manufacturing defects or any defects in the said product at the time of sale and that no such defects arose due to the manufacturing defects.
The second opposite party has acted as per the terms and conditions of the warranty and is in compliance with the law. Therefore, as per Sec. 2(11) of the Consumer Protection Act, these cannot be termed as a deficiency in service.
As per the terms and conditions of the warranty, replacement or refund of the said product in case of physical damages/mishandling of the said product and out of warranty period or providing compensation was not mentioned in the warranty card. Moreover, no defects/issues due to water/physical damages, mishandling, improper handling, or any other reasons, and defects that could be rectified for such situation/condition replacement, repair, refund, or compensation are mentioned in the warranty card.
The second opposite party is willing to carry out the necessary repairs and replacement of the parts strictly as per the terms and conditions of the warranty manual. It was further stated that there was, thus, no deficiency in rendering service on the part of the second opposite party, nor did they indulge in unfair trade practice. There were no manufacturing defects in the said product, and after post inspection, out of a goodwill gesture, the service center suggested visiting nearby MSC and also submitting the said unit, but the complainant strictly denied it and was only adamant about refund/replacement, which was against the warranty terms and conditions. The second opposite party shall not be liable to pay compensation as no manufacturing defects were found in the said product.
The complainant filed a proof affidavit in lieu of chief examination and marked exhibits A1 to A4 from the side of the complainant. There is no oral evidence from the side of the first and second opposite parties. The documents produced by the first and second opposite parties are marked as exhibits B-1 to B3. The report of the Expert Commissioner appointed by the Commission is marked as Exhibit C1.We would like to consider the following points on evaluating the complaint and the evidence on record.
- Did the complainant succeed in proving any deficiency in service on the part of the opposite party?
- If so, what are the reliefs and cost?
POINTS No. 1 & 2
There is no dispute on the fact that complainant purchased a Samsung Handset on 10/06/2023, Serial No- RZCW50XAWSV and Model No. SM-E236BZGH at a consideration of Rs.15,499/-. (Rupees Fifteen Thousand Four Hundred and Ninety-Nine Only) which is manufactured by the second opposite party, from the second opposite party through the online portal of the first opposite party. Exhibit A1 proves that the complainant had paid Rs. 9148 to the seller after deducting Rs. 6400/- as the exchange price of his old mobile phone.
The complainant stated that within two months of purchase, the mobile phone began experiencing network issues and frequent automatic restarts, followed by major problems such as overheating, freezing, charging malfunctions, and microphone issues within six months.
It is proved by exhibit, A3 that on 31-01-2024. The complainant entrusted the mobile phone to the second opposite party with a complaint of PBA/mic not working, WIFI not working, heating, call drop, and restarting. The second opposite party admitted that the motherboard of the mobile phone was replaced under warranty. It is submitted by the second opposite party that since the issue persists, the complainant was suggested to visit a nearby manufacturer service center and also to submit the handset for proper diagnosis, but the same was denied, and the complainant was only adamant about a refund or replacement of the mobile phone.
To prove his case, the complainant applied for the appointment of an expert to inspect the mobile phone; accordingly, this commission appointed an expert to inspect the mobile phone. The report of the Expert Commission is marked as exhibit C1. The Expert Commission reported in his report that the mobile phone received for inspection was in physically good condition and could be powered on. In the C1 report, he reported that testing revealed performance issues with the microphone, receiver, and speaker of the mobile phone, and even after one repair, these complaints should be considered significant. Therefore, it is evident that the mobile phone, which the second opposite party manufactured, suffered some defects. Though the second opposite party contended that these issues could be due to gross mishandling of the handset, they did not adduce any evidence to prove the same. It is pertinent to note that in exhibit A3, which is the acknowledgment of the service request issued by the third opposite party, there is no endorsement revealing that the complainant improperly used the mobile phone. Moreover, after generating exhibit A3, the second opposite party replaced the motherboard of the mobile phone under warranty without any objection. Expert Commission also reported that the mobile phone was physically in good condition at the time of instruction.
Another contention raised by the second opposite party that the complainant was reluctant to hand over the mobile phone for proper diagnosis and was adamant for refund or replacement. They did not adduce any evidence to prove that they had requested the complainant to hand over the mobile phone to the authorized service center to diagnose the defect.
Exhibit B3 proves that the second opposite party had offered a 12-month warranty for the mobile phone. It is admitted by the second opposite party in version that though the motherboard of the mobile phone which is the major component of the mobile phone had changed the complaint is persisting. On a close evaluation of the complaint, version, and the report of the expert commissioner, we are of the opinion that the mobile phone manufactured by the second opposite party and purchased by the complainant has inherent manufacturing defects. The second opposite party is under a contractual obligation to provide the benefits of the warranty that is offered by them to the complainant.
Coming to the liability of the first opposite party, it is evident that Flipkart was just a shopping platform and has no connection with manufacturing, repairing, or any other services in relation to the product. It was further observed that unless the person who visits the site agrees to the terms and conditions, the transaction cannot proceed. Therefore, we are of the opinion that the first opposite party had been wrongly impleaded as a party in the complaint. So, the complaint against the first opposite party is dismissed.
We have already found that the second opposite party committed unfair trade practices by selling a mobile phone that had inherent manufacturing defects and committed a deficiency in service by not providing warranty benefits to the complainant. No doubt, due to the deficient act of the second opposite party, the complainant had suffered much mental agony and hardship for which the second opposite party is liable. In the result we allow the complaint against the second opposite party and pass the following order.
- We hereby direct the second opposite party to pay Rs.15499/- to the complainant with interest @9% per annum from 10-06-2023 to the date of realization.
- We hereby direct the second opposite party to pay Rs. 10000/- to the complainant as compensation for the deficiency in service on the part of the second opposite party.
- We hereby direct the second opposite party to pay Rs. 3000/- as the cost of this litigation.
The order shall be complied with within thirty days from the date of receipt of notice of this order, failing which the compensation amount shall carry interest @ 9% per annum from the date of this order till realization.
The pending application(s), if any, also stand disposed of.
Pronounced in the Open Commission on this the 30th day of October, 2024
Sri. Manulal V.S. President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
APPENDIX :
Exhibits from the side of the Complainant :
A1 - Tax invoice dtd. 10/06/2023
A2 - Tax invoice dtd. 31/01/2024
A2 (a) - Tax invoice dtd. 27/06/2023
A2 (b) - Tax invoice dtd.25/06/2023
A2 (C) - Tax invoice No. FABRDC2400027216
A3 - Bill Date – 31/01/2024
A4 - Examination Report of Samsung galaxy F23-5G Mobile phone
Exhibits from the side of Opposite parties :
B1- Power of Attorney
B2- Copy of customer service record card
B3- Copy of Warranty Card
Exhibit from the side of Court
C1- Report of Tajo P Johny, Senior Instructor (Electronics Mechanic),
Govt. ITI Marad, Eranakulam
By Order,
Assistant Registrar
