Coram: Mohd. Anwar Alam, President

             Vikram Kumar Dabas, Member

             Manju Bala Sharma, Member

ORDER               Date: 10 April 2017

Manju Bala Sharma, Member

          Instant complaint has been filed by the complainant alleging therein that the complainant purchased mobile Nokia Lumia 530 on 16/10/2014 through Flipcart (OP 1) for Rs. 6139/- vide receipt no. OD000995992600143701.  It is further alleged that the phone did not turned on as it had manufacturing defect and the complainant sent a legal notice to OPs but did not receive any reply.  Complainant prayed that OPs be directed to refund the cost of the Mobile Hand Set and to pay Rs. 50,000/- as compensation for physical strain and mantle agony and Rs. 10,000/- as cost of litigation. 

Notice was issued to OPs.  OP 1 filed its reply but nobody entered appearance on behalf of OP 2 and was proceeded ex-parte on 20/11/2015. On 06/05/2016  complainant moved an application for impleading Microsoft Nokia Sales Pvt. Ltd., stating therein that Nokia Sales India Pvt. Ltd. has been taken over by Microsoft and therefore Microsoft be impleaded as OP No. 3, hence vide order dated 01/08/2016 Microsoft Nokia India Sales Pvt. Ltd., was impleaded as OP No. 3 and notice was issued to OP 3 which was served on 14/09/2016 but nobody has appeared on its behalf hence was proceeded ex parte on 18/10/2016.  OP 1 in its rely has stated that it is only credit facility platform over the internet engaged in the business of online market placed by and between respective buyer and sellers and complainant is not a consumer of OP 1 and denied that there is any privity of contract between complainant and OP 1 and denied that there is any deficiency in service on its part as by no strategy of imagination OP 1 is involved in any unfair trade practice.  OP 1 admitted that Nokia Lumia 530 Mobile was purchased by the complainant but OP 1 is merely an internet offering its platform for sale and purchase of various products.  It is further stated that OP 1 is neither the manufacturer nor the seller of the product.

Complainant has filed its rejoinder reiterating the facts stated in the complaint and admitted that the complainant booked the mobile in question through OP 1 on internet.   Complainant has field receipt of payment of Rs. 6139/- as Exhibit CW 1/5 and legal notice Exh CW 1/9 its postal receipt Exh CW 1/10 rely receipt from OP 1 as Ex CW 1/11 reply/letter received from OP 2 as Ex CW 1/12 in support of its complaint.  Complainant has filed affidavit of Shri Amit Pratap Singh Authorised signatory of OP 1. 

We have heard learned counsel for the parties gone through the documents placed on the record as well as written arguments.  It is an admitted fact that the complainant purchased the mobile phone through flipcart (OP 1) and availed the service of OP 1 over the internet.  As OP 1 is service provider it is neither the manufacturer or dealer of the mobile in question and is an inter mediatory only providing online platform for getting products OP 1 is not involved in the transaction except providing online platform for the transaction and the sale and purchase between the seller and the buyer only.  In reply to the legal notice sent by the complainant to the OP 1 and OP 2, OP 1 has taken the similar stand as in the written statement to this complaint whereas OP 2 has admitted to replace handset of the complainant with a new brand phone of the same model.  As OP 2 has admitted to replace the mobile hand set with a new brand mobile phone vide Ex CW 1/12 and OP 2 has now been taken over by M/s Microsoft OP 3 the liability of replacing the phone with a new branch is shifted to OP 3.  As OP 2 has admitted to replace the

phone of the complainant we direct OP 3 who has taken over all assets and liabilities and operations of OP 2 to refund the cost of the mobile pone i.e Rs. 6139/- to the complainant Rs. 5000/- as compensation for the harassment caused to the complainant and Rs. 3000/- as cost of litigation.

This order shall be complied with by the OP within a period of 30 days from the date of receipt of this order failing which interest @ 12% shall be payable on the entire above mentioned amount till realisation.  Copy of this order is sent to all the parties free of cost.  File be consigned to Record Room. 

Announced on this   ………………