| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.453 of 28-10-2015 Decided on 03-01-2017 Mohit Kumar aged about 30 years S/o Jagdish Kumar R/o # 28742 Near Pappu Atta Chakki Behind Railways Diggies, SAS Nagar, Bathinda. ........Complainant Versus 1.Flipkart Infinity Enterprises, Warehouse Address: Khasra No.435, Road No.#04 Lal Dora Extension, Mahipalpur Delhi, Pin-110037, through its Managing Director/Chairman. 2.M/s Unitech 2686, First Floor, Opp. Jagmal Neuro City Scan, Old Bus Stand, G.T Road, Bathinda, through its Proprietor/Partner. 3.Micromax House, 90B, Sector-18, Gurgaon, Pin-122015. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Present:- For the complainant: Sh.Chander Mohan, Advocate. For opposite party No.1: Sh.Kuljit Pal Sharma, Advocate. For opposite party Nos.2 & 3: Sh.Amit Ghai, Advocate. ORDER M.P Singh Pahwa, President The complainant Mohit Kumar (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Flipkart Infinity Enterprises and Others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he purchased one Micromax Canvas 4 A210 mobile handset online for Rs.9899/- vide invoice dated 11.2.2015 from opposite party No.1 with one year warranty from the website flipkart.com. Opposite party No.2 is the authorized service centre of opposite party No.3 i.e. manufacturer/importer of the mobile handset in question. It is alleged that in the month of June/July 2015, the mobile handset started giving problem relating to low battery, backup, hang and auto switch 'on' and 'off', not responding, power boot failure, power phone restarts/reboots etc. The complainant immediately brought this fact to the notice of opposite party No.2, but only after reseting the settings, it returned the mobile handset by saying that it is O.K. In the first week of July 2015, the mobile handset started giving the same problems. The complainant sent his mobile handset to opposite party No.2, it kept the same for 15 days on the pretext that the mobile handset will be got checked from its Ludhiana office. After about 15 days, the mobile handset was returned to the complainant after repair by saying that it is O.K. and it will function smoothly. The complainant requested opposite party No.2 to get his mobile handset replaced with new one, but opposite party No.2 assured him that there will be no problem in its functioning in future and in case of any problem, it will be got replaced with new one It is further alleged that after repair, the mobile handset worked only two or three days as it started giving the same problems. On 23.7.2015, the complainant sent the mobile handset through his friend Vijay Kumar, he visited opposite party No.2 and told it that there is some manufacturing defect in the mobile handset as the same is not working properly and it is creating the problem one after the other, despite repeated repairs. Opposite party No.2 kept the mobile handset vide job sheet dated 23.7.2015 and asked the complainant to collect his mobile handset after one week. Since 23.7.2015, he has been visiting time and again to the office of opposite party No.2, but to no avail. On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties and has prayed for directions to opposite parties either to replace the mobile handset with new one or to refund of its price alognwith interest @ 18% per annum and also claimed compensation to the tune of Rs.25,000/- on account of mental tension, harassment etc. and cost of complaint to the tune of Rs.5000/-. Hence, this complaint. Upon notice, opposite parties appeared through their respective counsel. Opposite party No.1 contested the complaint by filing its written version wherein it has raised the preliminary objections that the complainant has suppressed the true and material facts and he is trying to mislead the Forum. It is a company duly registered under the provisions of the Companies Act, 1956. It provides online marketplace/platform/technology over internet through its website www.flipkart.com (here-in-after referred to as website) and other mechanism/services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods by and between respective buyers and sellers and enables them to deal in various categories of goods. The business of opposite party No.1 falls within the definition of an 'intermediary' U/s 2(1)(w) of the Information Technology Act, 2000. It is protected U/s 79 under I.T Act, 2000. It is pleaded that the complainant does not fall within the category of 'consumer' of opposite party No.1 under the provisions of 'Act'. Opposite party No.1 has been wrongly impleaded in this complaint. The complaint is bad for mis-joinder of party. It is also pleaded that there is no privity of contract between the complainant and opposite party No.1. It is not liable to be prosecuted for the reason that after sale, it is liability of the manufacturer/service centre to cure the defect in the product, if any. There is no deficiency in service on the part of opposite party No.1 and complaint is liable to be rejected. On merits also, opposite party No.1 has reiterated its stand as taken in the preliminary objections and detailed above and denied all the averments of the complainant. Opposite party Nos.2 and 3 failed to file their written version within the stipulated period. As such, the matter was posted for evidence of the complainant. Parties were afforded opportunities to produce evidence. In support of his claim, the complainant has tendered into evidence his own affidavit dated 28.10.2015, (Ex.C1); photocopy of bill, (Ex.C2); photocopy of job sheet, (Ex.C3) and closed the evidence. In order to rebut this evidence, opposite party No.1 has tendered into evidence affidavit of Amit Partap Singh dated 19.12.2015, (Ex.OP1/1) and closed the evidence. Opposite party Nos.2 and 3 have tendered into evidence affidavit of Sikander Verma dated 9.6.2016, (Ex.OP2/1) and closed the evidence. We have heard learned counsel for the parties and gone through the file carefully. It is submitted by the learned counsel for the complainant that the complainant has placed on record photocopy of bill, (Ex.C2), which proves that he has purchased the mobile handset in question. He has also placed on record copy of job sheet, (Ex.C3), which proves that the mobile handset was retained by opposite party No.2 on 23.7.2015. The stand of the complainant is that opposite party Nos.2 and 3 have failed to return the mobile handset after doing needful. Of-course, no written version was filed by opposite party Nos.2 and 3, but in affidavit, (Ex.OP2/1), they have admitted that the complainant deposited the mobile handset with them on 23.7.2015. They have further alleged that the complainant did not turn up to collect his mobile handset from authorized service centre, but this version is only afterthought version. If opposite party Nos.2 and 3 were ready with the mobile handset, they were to offer this mobile handset on the very first day of their appearance. There is also nothing on record that the complainant was ever asked to come and collect his mobile handset. Therefore, it is to be accepted that opposite party Nos.2 and 3 failed to repair/replace the mobile handset within the reasonable time. It amounts to deficiency in service. Opposite party Nos.2 and 3 have failed to deliver the mobile handset within the reasonable time and no useful purpose will not be served by repair of the mobile handset. Therefore, opposite parties be directed either to replace the mobile handset with new one or refund of its price amount. On the other hand, learned counsel for opposite party Nos.2 and 3 has submitted that the complainant has not approached this Forum with clean hands. He wants benefits of his own default. Opposite party Nos.2 and 3 have fairly conceded that the complainant deposited his mobile handset on 23.7.2015. The version of opposite party Nos.2 and 3 is that the complainant failed to turn up and to collect his mobile handset. There is nothing on record to prove that the complainant ever approached opposite party Nos.2 and 3 to collect his mobile handset. Instead of coming to the service centre to collect his mobile handset, the complainant has straightway filed this complaint. Even no legal notice has been served upon opposite parties by the complainant. Opposite party Nos.2 and 3 have been unnecessarily dragged into litigation. The complainant has not approached this Forum with clean hands. Therefore, the complaint is liable to be dismissed with special cost. We have given careful consideration to these rival submissions. Of-course, the complainant purchased the mobile handset from opposite party No.1, but as per complainant, he has deposited his mobile handset with the service centre of opposite party No.3, the manufacturer of the mobile handset. There is nothing to show any deficiency in service on the part of opposite party No.1. Opposite party No.3 is manufacturer and opposite party No.2 is authorized service centre of the mobile handset in question. Although, no written version was filed by opposite party Nos.2 and 3, but they produced evidence by way of affidavit, (Ex.OP2/1). In this affidavit, opposite party Nos.2 and 3 have admitted that the complainant deposited his mobile handset with authorized service centre on 23.7.2015. It is further case of opposite party Nos.2 and 3 that the complainant did not turn up to collect his mobile handset from the authorized service centre and mobile handset is ready with them. The job sheet, (Ex.C2) shows that no date for delivery of the mobile handset after repair was mentioned. Opposite party Nos.2 and 3 have also not produced any notice issued to the complainant to come and collect his mobile handset. Therefore, this version of opposite party Nos.2 and 3 is believed to be afterthought version. They have caused unnecessary delay in repairing the mobile handset. It amounts to deficiency in service. The complainant has prayed for replacement of the mobile handset with new one or refund of its price amount, but no terms and conditions are brought on record to prove that the complainant is entitled for replacement of the mobile handset with new one or refund of its price. He has not produced any evidence to prove any manufacturing defect in his mobile handset. The mobile handset was purchased in the month of February 2015. It was handed over to the service centre on 23.7.2015 i.e. after about 6 months from the date of purchase. Had there been any manufacturing defect in the mobile handset, the complainant would not have been able to use the mobile handset for this period also. Therefore, the prayer of the complainant for replacement of the mobile handset with new one or refund of its price is not acceptable. Opposite party Nos.2 and 3 are liable to return the mobile handset to the complainant after its due repair. As a result of our above discussion, the complaint is partly accepted with Rs.2000/- as cost and compensation against opposite party Nos.2 and 3 and dismissed qua opposite party No.1. Opposite party Nos.2 and 3 are directed to handover the mobile handset in question to the complainant after its due repair as per terms and conditions of warranty. It is further made clear that original warranty/guarantee shall stand extended for the remaining period from the date of delivery of mobile handset to the complainant, i.e after excluding period from 23.7.2015 till date of delivery. The compliance of this order be made within 30 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 03-01-2017 (M.P Singh Pahwa) President (Jarnail Singh) Member
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