BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSIOIN, AMRITSAR.
Consumer Complaint No. 547 of 2020
Date of Institution: 15.12.2020
Date of Decision: 28.9.2021
Inderdeep Singh son of Sh. Jaswinder Singh, resident of B-19, East Mohan Nagar, Amritsar
Complainant
Versus
- Flipkart Internet Pvt.Ltd having its registered office at Building Alyssa, Begonia and Clover, Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village Bengluru 560103, through its Managing Director/CEO/Person Over All Incharge/Authorized signatory
- XIAOMI Technology India Private Limited having its Headquarter Office at Building, Orchid, Block-E, Embassy Tech Village Marathahali, Outer Ring Road, Devarabisanahalli, Bengaluru 560103, through its Director/Managing Director/Partner/Authorized Signatory/Person Over All Incharge
- Savan Retailers Private Limited, H.B. No. 220, Village Dugri, Tehsil Payal, Ludhiana, Punjab-141416, through its Managing Director/Director/Partner/Proprietor/person over all Incharge
- Qdigi Service Limited, shop No. 27-G, Nehru Shopping Complex, Lawrence Road, Amritsar through its Proprietor/Partner/Person Over All Incharge
Opposite Parties
Complaint under section 35 of the Consumer Protection Act, 2019
Result : Complaint Allowed
Cases Referred:-
- Maruti Sazuki India Ltd. Vs. Dr. KoneruSatya Kishore &Ors. Of National Consumer Disputes Redressal Commission, New Delhi 1(2008) CPJ 157(NC)
- Hon’ble Punjab State Commission in case Amazon Seller Services Private Limited Vs. Vishwajit Tapia & Ors in First Appeal No. 544 of 2019 decided on 3.12.2019 as well as Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No. 765 of 2016 decided on 30.3.2016 of the Hon’ble National Commission, New Delhi
- G.Ganesh Kumar V. Hero Vardhaman and others” FA No. 711 of 2011, In Reliance Retails Limited & Ors. Vs. Pardeep Kumar III(2019) CPJ 1B, Raj Kumar Vs. Rana Communications & Anr. III(2019) CPJ 6C
Counsel for the parties :
For the Complainant : Mr. Munish Kohli,Advocate
For the Opposite Parties No.1 & 3 : Mr. Mohan Arora, Advocate
For the Opposite Party No.2 : Mr. Lalit Tuteja,Advocate
For the Opposite Party No.4 : Ex-parte
CORAM
Sh. Jagdishwar Kumar Chopra, President
Sh.Jatinder Singh Pannu, Member
Order dictated by:
Sh. Jagdishwar Kumar Chopra, President
1. Order of this commission will dispose of the present complaint filed by the complainant u/s 35 of the Consumer Protection Act, 2019.
Brief facts and pleadings
2. Brief facts of the case are that the complainant purchased mobile set Model Redmi Note 7 Pro Neptune Blue 64 GB having IMEI No. 867381044846778 through online Flipkart company i.e. opposite party No.1 manufactured by opposite party No.2 and the same was purchased from its authorized dealer i.e. opposite party No.3 vide Invoice dated 19.12.2019 for a sum of Rs. 9737/- and the said consideration was duly paid by the complainant. Opposite party No.4 is the authorized service centre of opposite party No.2 , as such services of the opposite parties were hired by the complainant for valuable consideration. As such the complainant is a consumer of the opposite parties as defined in the Consumer Protection Act and thus he is entitled to invoke the jurisdiction of this Commission. Copy of bill/invoice dated 19.12.2019 is Ex.C-1. The affidavit of the complainant is Ex.CW1/A. The said mobile set was duly insured with consideration vide separate invoice No. EAAAB-03705987 dated 19.12.2019 which duly covers the accidental damage. Copy of said insurance invoice is Ex.C-2. Since the date of its purchased the mobile set in question is not properly working and functioning as the same used to hang and operating system was not working properly and even its software is also not working properly . In respect thereof the matter was brought to the notice of opposite party No.3 but opposite party No.3 asked the complainant to get the grievances redressed from opposite party No.4, who is authorized service centre of opposite party No.2. In respect thereof the complainant handed over the mobile set in question to opposite party No.4 on numerous times and also made complaints on customer care No. 218001036286 and they have returned the same to the complainant after updating the software of the said mobile set with the assurances that now it will give trouble free service. But all the times such assurances proved futile and such problems occurred repeatedly. Finally the complainant visited the opposite party No.4 on 30.11.2020 and handed over the abovesaid mobile set to opposite party No. 4 with all the aforesaid problems and the opposite party No. 4 kept the mobile set with them and issued job sheet dated 30.11.2020 to the complainant with the assurance that they shall remove all the abovesaid defects from the mobile . Thereafter they have returned the mobile set to the complainant but after using the same it was found by the complainant that said defects were not removed from the mobile set in question . As such again the complainant approached opposite party No.4 with the same complaints, but this time the concerned engineer of opposite party No.4 flatly refused to receive and repair the handset and openly declared that the same is having some inherent manufacturing defect and it is not possible for them to repair the said mobile set. Copy of job sheet is Ex.C-3. The abovesaid acts of the opposite parties tantamount to deficiency in service and unfair trade practice within the purview of Consumer Protection Act. The mobile set in question was manufactured by opposite party No.2 and was sold by opposite party No.3 being authorized dealer and opposite party No.4 is unable to rectify the defects as stated above and as the inherent manufacturing defective mobile set was sold and delivered by the opposite parties to the complainant knowing fully well that it will not work smoothly, as such all the opposite parties are jointly and severally liable under law. Vide instant complaint, complainant has sought for the following reliefs:-
(a) Opposite parties be directed to refund the entire sale price of Rs. 9737/- alongwith interest @ 18% p.a. from the date of purchase till payment;
(b) Opposite parties be also directed to pay compensation to the tune of Rs. 1,00,000/- as well as adequate litigation expenses may also be awarded to the complainant.
(e) Any other relief to which the complainants may be found entitled may also be awarded to the complainants.
Hence, this complaint.
3. Upon notice opposite party No.1 appeared and filed written version taking preliminary objections therein inter alia that the complainant has not leveled a single allegation against the opposite party No.1 in the entire complaint, thus the complainant has wrongfully impleaded opposite party No.1 under present complaint and hence, the same is liable to be dismissed against the opposite party No.1 ; that the said “Flipkart Platform’ is electronic marketplace model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers ; that any kind of assurance whether in terms of warranty on the products, price, discounts, promotional offers, replacement/refund , after sale service or otherwise are offered and provided by the manufacturer of the products sold on flipkart platform. Opposite party No.1 neither offers nor provides any assurance to the buyers of the product . Further it is the seller of the product that provides 10 days replacement policy on its products in addition to the manufacturer’s warranty wherein buyers can claim replacement of the product if the product qualifies the quality check test arranged by the seller from the expert technicians ; that the whole grievance of the complainant pertains to complainant receiving one alleged defective mobile i.e. Redmi Note 7 Pro (Neptune Blue, 64 GB). Moreover the complainant himself has approached the manufacturer and its authorized service centre for any alleged manufacturing deficiencies in the product as they were the right concerned authority in the instant matter. Moreover the complainant has not even approached the opposite party No.1 on any prior occasion. The grievance of the complainant should have been only against the manufacturer of the product/or authorized service centre or the seller for not providing after sale service to its customers. Hence, in view of the above mentioned submissions, there is no cause of action against the answering opposite party No.1. In parawise reply the opposite party No.1 has taken the similar pleas, as such there is no need to reproduce the same.
4. Opposite party No.3 in its written version has submitted that the complainant purchased one mobile Model Redmi Note 7 Pro Neptune Blue 64 GB for Rs. 9737/- on 19.12.2019 from opposite party No.3 is a matter of record. The role of opposite party No.3 is only limited to reselling the products of various manufacturers and its role comes to the end as soon as the product is delivered at the address provided by the customer. In the present case, the opposite party No.3 has delivered the product in a sealed box to the complainant within time hence there is no deficiency of service on the part of opposite party No.3. However, the warranty on the product is provided by the manufacturer only at its own or through its Authorized service centre. Even otherwise the complainant himself has admitted that product was having manufacturing defect and hence, it is the sole duty of the manufacturer or their authorized service station to remove the defects, if any to the entire satisfaction of the complainant. It was submitted that it is not the case of selling defective product. The complainant has used the same product for more than eleven months before approaching the service centre which can be proved by the job sheet provided by the complainant himself. Therefore, no question of selling defective product arises in the present complaint. 10 days replacement warranty provided by the seller also stands lapsed on or around 29.12.2019. Even otherwise only the manufacturer can be held responsible for any manufacturing defects as alleged by the complainant. The complainant has failed to show any cause of action against the opposite party No.3, as such no case is made out against opposite party No.3. While denying and controverting other allegations, dismissal of complaint was prayed.
5. Opposite party No.2 in its written version has taken certain preliminary objections therein inter alia that complaint filed by the complainant is false, frivolous, vexatious, concocted and has been filed to harass opposite party No.2 ; that on 30.11.2020 the complainant approached the authorized service centre i.e. opposite party No.4 for the first time and has not approached thereafter. The technician of the authorized service centre of opposite party No.2 duly repaired the product for free of cost as per applicable warranty and returned the same to the complainant in proper working condition ; that the complainant in para 5 of the complaint states that opposite party No.2 have refused to repair the handset and also informed the complainant that the product has a manufacturing defect which is false, frivolous, vexatious, concocted one. The complainant has approached the authorized service centre of opposite party No.2 once i.e. on 30.11.2020 and the complainant was provided job sheet No. WXIN2011300004973 wherein the handset was repaired and returned to the complainant. It was submitted that complainant has purchased a phone sold under the Redmi brand namely Redmi Note 7 Pro on 12.12.2019 for Rs. 9737/- bearing IMEI No. 867381044846778. On 30.11.2020 the complainant approached the opposite party No.2 with the issues related to the product was facing issuing related to “Handset hand, Battery Drain, Auto Power Off” in the product. The service engineer duly recorded the issue and requested the complainant to wait till the inspection of the product is completed. After duly examination and reviewing the product by the technician of the service centre, issue of the product was resolved by the technicians of service centre of opposite party No.2 as per standard warranty conditions applicable to the product and the product was duly returned to the complainant in proper working condition. Thereafter, the complainant has never approached any of the authorized service centre of opposite party No.2 on any occasion other than Nov. 30,2020. On merits, it was submitted that the complainant has not submitted any evidence to prove that he has approached the service centre on any occasion other than Nov. 30,2020. The complainant’s malafide and vexatious intention can be reflected from the fact that the complainant approached the authorized service centre for the first time after using the handset for 11 months 11 days i.e. just 18 days before lapse of warranty period. This shows malafide intention of the complainant go get undue advantages by making baseless allegations. The terms and conditions of the warranty clause clearly establish that (a) within the warranty period Xiaomi shall provide free of charge repair and/or replacement services for defective parts (b) the warranty period for the hardware product is 1 year (c ) the warranty period for battery, charger and other accessories is 6 months. It is pertinent to note that the complainant used the product for more than 11 months without any issue in the product. If there was any manufacturing defect in the product the complainant would not have been able to use the product for almost full extent of warranty. It is submitted that with a view to enable this Commission to ascertain whether there is any manufacturing defect in the product, the Commission may invite the complainant to produce the device u/s 38(2)(c ) of the Consumer Protection Act 2019 falling which the complainant’s case falls for the reason that there is no proof any defect in the product. Had the complainant submitted the product , the service centre would have ensured that the product gets duly repaired as per the standard warranty terms and conditions . There is accordingly no deficiency in service or unfair trade practice on the part of opposite party No.2. It clearly indicate that this complaint is nothing but a strategy to get replace the product or to get refund and other monetary benefits from opposite party No.2. While submitting that there is no deficiency in service on the part of the replying opposite party and while denying and controverting other allegations, dismissal of complaint was prayed.
6. On the other hand opposite party No.4 did not opt to put in appearance despite service of notice, as such opposite party No.4 was proceeded ex-parte vide order dated 16.3.2021.
Points for Determination
7. From the pleadings the following are the points to be determined by this Commission:-
- Whether there is deficiency in service on the part of the opposite party in selling defective mobile handset to the complainant ?
- If point No.1 is proved , whether the complainant is entitled for compensation on account of harassment and mental agony and also entitled for litigation expenses , if so , to what amount ?
Evidence of the complainant and Arguments
8. Alongwith the complaint, complainant has filed his affidavit Ex.CW-1/A, copy of invoice dated 19.12.2019 Ex.C-1, copy of Tax Invoice vide which the mobile hand set was insured Ex.C-2, copy of service order/job sheet dated 30.11.2020 Ex.C-3 and closed his evidence.
9. On the other hand opposite party No.1 alongwith written version has filed affidavit of Ms. Sheetal Tiwari, authorized signatory Ex.OP1/1, copy of resolution Ex.OP1/2, copy of terms of use for using the online portal Ex.OP1/3 and closed the evidence.
10. Whereas opposite party No.3 alongwith written version has filed affidavit of Mr. Arun Dwivedi, Authorized signatory of opposite party No.3 Ex.OP3/1.
11. Opposite party No.2 alongwith written version has filed affidavit of Sameer BS Rao, authorized representative, copy of handset limited warranty Ex.A, copy of limited warranty statement Ex.B (consisting of three pages), copy of service record Ex.C .
12. We have heard the Ld. Counsel for the parties and have carefully gone through the record on the file . We have also gone through the written synopsis submitted by Ld.counsel for opposite parties No. 1 to 3. On the other hand Ld.counsel for the complainant suffered a statement that he does not want to file written arguments and the contents of his complaint be read as part and parcel of written arguments.
Findings
13. From the pleadings of the parties, it stands proved on record that the complainant has purchased mobile set Model Redmi Note 7 Pro Neptune Blue 64 GB having IMEI No. 867381044846778 through online Flipkart company i.e. opposite party No.1 manufactured by opposite party No.2 and the same was purchased from its authorized dealer i.e. opposite party No.3 vide Invoice dated 19.12.2019 for a sum of Rs. 9737/- copy of invoice is Ex.C-1 on record. It also stands proved on record that the said mobile handset was duly insured ,copy of Tax Invoice is Ex.C-2. It was the case of the complainant that since the date of its purchase the mobile set in question is not properly working and functioning as the same used to hang and operating system was not working properly and even its software is also not working properly . In this regard complainant approached the opposite party No.4 i.e. service centre many a times but every time the opposite party No.4 only after updating the software and did not issue any job and they have returned the same to the complainant with the assurances that now it will give trouble free service. But all the times such assurances proved futile and such problems occurred repeatedly. Finally the complainant visited the opposite party No.4 on 30.11.2020 and handed over the abovesaid mobile set to opposite party No. 4 with all the aforesaid problems and the opposite party No. 4 kept the mobile set with them and issued job sheet dated 30.11.2020 to the complainant with the assurance that they shall remove all the abovesaid defects from the mobile , copy of job sheet is Ex.C-3. Thereafter they have returned the mobile set to the complainant but after using the same it was found by the complainant that said defects were not removed from the mobile set in question . As such again the complainant approached opposite party No.4 with the same complaints, but this time the concerned engineer of opposite party No.4 flatly refused to receive and repair the handset and openly declared that the same is having some inherent manufacturing defect and it is not possible for them to repair the said mobile set. Ld.counsel for the complainant contended that the abovesaid acts of the opposite parties tantamount to deficiency in service and unfair trade practice within the purview of Consumer Protection Act.
14. On the other hand the pleas of opposite party No.1 is that they are only the E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers and the whole grievance of the complainant pertains to complainant receiving one alleged defective mobile i.e. Redmi Note 7 Pro (Neptune Blue, 64 GB). Moreover the complainant himself has approached the manufacturer and its authorized service centre for any alleged manufacturing deficiencies in the product as they were the right concerned authority in the instant matter. Whereas opposite party No.3 has taken the plea that there role is only limited to reselling the products of various manufacturers and its role comes to the end as soon as the product is delivered at the address provided by the customer. In the present case, the opposite party No.3 has delivered the product in a sealed box to the complainant within time hence there is no deficiency of service on the part of opposite party No.3. However, the warranty on the product is provided by the manufacturer only at its own or through its Authorized service centre. Even otherwise the complainant himself has admitted that product was having manufacturing defect and hence, it is the sole duty of the manufacturer or their authorized service station to remove the defects, if any to the entire satisfaction of the complainant. The complainant has used the same product for more than eleven months before approaching the service centre which can be proved by the job sheet provided by the complainant himself.
15. Whereas opposite party No.2 has taken the pleas that the complainant has approached the authorized service centre of opposite party No.2 once i.e. on 30.11.2020 and the complainant was provided job sheet No. WXIN2011300004973 wherein the handset was repaired and returned to the complainant. Thereafter, the complainant has never approached any of the authorized service centre of opposite party No.2 on any occasion other than Nov. 30,2020. It has further been contended that complainant approached the authorized service centre for the first time after using the handset for 11 months 11 days i.e. just 18 days before lapse of warranty period. If there was any manufacturing defect in the product the complainant would not have been able to use the product for almost full extent of warranty. In support of his version opposite party No.2 has placed reliance upon “G.Ganesh Kumar V. Hero Vardhaman and others” FA No. 711 of 2011 wherein it was held that :
“It looks as though the complainant intends to get a new vehicle for the old one alleging that there was some manufacturing defects. However, the complainant had failed to prove that there was manufacturing defect which needs replacement of vehicle with a new one. He having used the vehicle for about one year he could not have claimed a new vehicle. He could not have ran it for one year if really there were manufacturing defects. When the warranty is coming to close by three days he filed the complaint. Even then he could not prove that there was some manufacturing defect. The vehicle was running even now. Had there been manufacturing defect he could not have used it for one year.”
It is also settled law that sole affidavit of the complainant is not sufficient and does not prove that there is a manufacturing defect in the mobile handset. The complainant has not filed any technical report or an affidavit of an expert to establish that the product is having any manufacturing defect. It is well settled law that onus to prove any allegation made lies upon the person who asserts. In Reliance Retails Limited & Ors. Vs. Pardeep Kumar III(2019) CPJ 1B wherein it has been held that :-
“State Commission is of the opinion that complainant has asserted the fact that there was manufacturing defect in the mobile phone handset in question. It is well settled law that onus to prove the fact lies upon a person who asserts particular fact before the learned District Forum or State Commission. Complainant did not file expert opinion report in order to prove that there was manufacturing defect in the product in question. It is well settled law that manufacturing defect in the product could be proved only by way of opinion of expert.”
Further in Raj Kumar Vs. Rana Communications & Anr. III(2019) CPJ 6C wherein it has been held that :
“Sole affidavit of complainant is not sufficient to hold that there was manufacturing defect in the mobile handset because complainant is not expert. No reasons assigned by complainant as to why complainant did not file any affidavit of expert in order to prove that there was manufacturing defect in the mobile handset in question…”
It is submitted that with a view to enable this Commission to ascertain whether there is any manufacturing defect in the product, the Commission may invite the complainant to produce the device u/s 38(2)(c ) of the Consumer Protection Act 2019 falling which the complainant’s case falls for the reason that there is no proof any defect in the product. Had the complainant submitted the product , the service centre would have ensured that the product gets duly repaired as per the standard warranty terms and conditions . There is accordingly no deficiency in service or unfair trade practice on the part of opposite party No.2.
16. From the above discussion, it stands proved on record that it stands proved on record that the complainant has purchased mobile set Model Redmi Note 7 Pro Neptune Blue 64 GB having IMEI No. 867381044846778 through online Flipkart company i.e. opposite party No.1 manufactured by opposite party No.2 and the same was purchased from its authorized dealer i.e. opposite party No.3 vide Invoice dated 19.12.2019 for a sum of Rs. 9737/- copy of invoice is Ex.C-1. It was the case of the complainant that since the date of its purchase the mobile set in question is not properly working and functioning as the same used to hang and operating system was not working properly and in this regard the complainant approached the opposite party No.4 i.e. authorized service centre of opposite party No.2 many a times and every time opposite party No.4 only updated the software with the assurances that now it will give trouble free service without issuing any job card. However, even thereafter the mobile handset suffered from the same problem and as such the complainant visited the opposite party No.4 on 30.11.2020 and handed over the abovesaid mobile set to opposite party No. 4 with all the aforesaid problems and the opposite party No. 4 kept the mobile set with them and issued job sheet dated 30.11.2020 to the complainant with the assurance that they shall remove all the abovesaid defects from the mobile , Copy of job sheet is Ex.C-3. But the opposite party No.4 returned the mobile set to the complainant with the assurance that it will not give any trouble further . But the said mobile again giving the same problem . As such again the complainant approached opposite party No.4 with the same complaints, but this time the concerned engineer of opposite party No.4 flatly refused to receive and repair the handset and openly declared that the same is having some inherent manufacturing defect and it is not possible for them to repair the said mobile set. Ld.counsel for the complainant vehemently argued that the complainant has purchased the said mobile for his online study as during these pandemic days the schools are providing online study and it is only possible if the student is having Android mobile set. But due to the defect in the mobile handset since the date of its purchase , the complainant has suffered loss of his study as when he used to join the online classes the mobile set automatically shut down due to hanging problem in the mobile handset. It has vehemently been contended by the Ld.counsel for the complainant that the complainant is not only entitled to replace/refund of the sale price, but is also entitled to the compensation due to loss of his study which no doubt is a irreparable loss . 17. On the other hand the only plea taken by the opposite party No.2 is that the complainant approached the opposite party No.4 only once on 30.11.2020 for the first time after using the handset for 11 months 11 days i.e. just 18 days before lapse of warranty period. If there was any manufacturing defect in the product the complainant would not have been able to use the product for almost full extent of warranty. But we are not agreed with this plea of the opposite party No.2 as the contention of the complainant is that since the date of its purchase , the mobile set was giving problem and whenever he approached the opposite party No.4, opposite party No.4 only by updating the software returned back the mobile set to the complainant without issuing any job sheet and at last engineer of opposite party No.4 refused to set it right by saying that there is manufacturing defect in the mobile handset . In support of his contention the complainant has filed his self attested affidavit Ex.C-1. On the other hand opposite party No.4 was proceeded ex-parte vide order dated 16.3.2021 and thus the contention of the complainant remained unrebutted and rather impliedly admitted by the opposite party No.4. So this plea of the opposite party No.2 that the complainant approached the opposite party No.4 only once on 30.11.2020 for the first time after using the handset for 11 months 11 days i.e. just 18 days before lapse of warranty period is not sustainable in the eyes of law . Moreover the plea of the opposite party No.2 is also not genuine as everybody knows that year 2020 is a pandemic year and there is lockdown in whole the country/city and as and whenever there was some relaxation in the lockdown then the complainant approached the opposite party No.4 and they without issuing any job card only updated the software and returned the mobile handset to the complainant and only issued the job card on 30.11.2020. So it was not the fault of the complainant if the opposite party No.4 has not issued any job card prior to 30.11.2020. The consumer cannot be expected to take the mobile to the service centre on a number of occasions, unless there are defects in the said mobile. Reliance in this context has been placed upon Maruti Sazuki India Ltd. Vs. Dr. KoneruSatya Kishore &Ors. Of National Consumer Disputes Redressal Commission, New Delhi 1(2008) CPJ 157(NC) wherein it has been held that defects not removed despite several visits to workshop. Vehicle had to be taken to workshop of dealer on a number of occasions with complaints of intermittent Jerks, running and hash noise from gear box assembly system. Dealer made efforts to remove defects but vehicle could not be made free from such defects. It has also been held that consumer cannot be expected to take vehicle to workshop on a number of occasions, a vehicle is said to be suffering from ‘defect’, if there is any fault, imperfection or shortcoming in quality, quantity, potency, purity or standard, which was required to be maintained under any law in force. Vehicle did suffer from defects as it had to be taken to workshop of dealer from time to time. The petitioner failed in the task to provide vehicle in road worthy condition to complainant. Dealer did carry out repairs in vehicle as per job cars, but was not able to remove the defects in vehicle. Refund of purchase price and compensation rightly awarded.”Not only this the opposite party No.2 moved an application for examination of the mobile phone by their expert. However, During the course of arguments, complainant has placed on record service report from the authorized MI service centre at Amritsar showing that this mobile is having defect of over heating etc and shows that it requires thorough repair and Rs.7000/- is chargeable. On the other hand, Sh.Lalit Tuteja, Adv.counsel for the opposite party No.2 also agreed and suffered statement that since the complainant had visited the service engineer and has further stated that in view of this service record so produced by the complainant, present application may be disposed of and vide order dated 22.6.2021 the application filed by opposite party No.2 was dismissed being infructuous.. So the opposite party No.2 admitted that the mobile set in dispute is repairable only by spending Rs.7000/- . So the law cited by the opposite party No.2 is not helpful as opposite party No.2 has suffered a statement on 22.6.2021 that application for production of alleged handset from examination by the service engineer may be disposed of in terms of the service record dated 16.6.2021 so produced by the complainant, has admitted that the mobile handset requires repair of Rs. 7000/- which proves that there is some major defect in the mobile handset the cost of which was Rs.9737/- on which Rs. 7000/- is required as repair charges. So it proves that there is manufacturing defect in the mobile hand set.
17. Regarding liability of opposite party No.1 is concerned, the plea of opposite party No.1 is that they are only an intermediary between the customer and the seller. Opposite party No.1 is neither manufacturer nor seller of the product to their customers and in support of its version the opposite party No.1 has placed reliance upon the order of this Commission in CC No. 807 of 2019 in which it was held that opposite party No.3 is only the platform on which the products of opposite party No.1 were sold and no liability can be fastened upon opposite party No.3. But it is principle of law that each case has independent facts and judgement as referred above is not applicable to the present case as the complainant has placed reliance of our own Hon’ble Punjab State Commission in case Amazon Seller Services Private Limited Vs. Vishwajit Tapia & Ors in First Appeal No. 544 of 2019 decided on 3.12.2019 in which further reliance has been placed upon Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No. 765 of 2016 decided on 30.3.2016 of the Hon’ble National Commission, New Delhi in which it was held that it was bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality standard. If the goods purchased through online are found not upto the mark, online portal through which goods were purchased, cannot escape its liability .
18. So in view of the above discussion, we have come to the conclusion that there is manufacturing defect in the mobile hand set. As such the opposite parties are jointly or severally liable to make good the loss of the complainant. As the complainant has suffered lot of mental agony, harassment as well as loss in his online study as the purpose for purchasing the mobile handset is not fulfilled as it started giving trouble since the date of its purchase as discussed above and now the complainant has no faith in such company because since the date of purchase of the mobile set in question, the complainant has been harassed badly all the time without any reasonable cause and he does not want to keep the product of this company and made prayer that the amount of the product may please be refunded alongwith interest and compensation.
Relief
19. Keeping in view the above facts, the complaint is allowed with the following directions:-
(a) Opposite parties jointly or severally are directed to refund the sale price of the mobile handset to the tune of Rs. 9737/-alongwith interest @ 9% p.a. from the date of filing of the complaint till realization to the complainant.
(b) So far as compensation , since the complainant has suffered loss in his online study during the pandemic period due to the non working of the mobile handset since the date of its purchase and the said loss is irreparable which cannot be measured on monetary ground but there is no other way to compensate the complainant by awarding compensation. It is well settled principle of law that compensation term has not been explained in the Consumer Protection Act, however this Act is based on principle of equity, good concise and natural justice and the Commission is empowered to provide compensation after assessing the facts of each case. As the complainant has suffered a lot of mental as well as physical agony due to the act of the opposite party, as such all the opposite parties are liable to pay compensation to the tune of Rs. 10000/- to the complainant besides this the opposite parties are also directed to pay litigation expenses to the tune of Rs. 3000/- to the complainant . The liability of the opposite parties to pay compensation and litigation expenses is also jointly or severally.
Compliance of this order be made within 30 days from the date of receipt of copy of this order ; failing which the complainant is entitled to get the order executed through the indulgence of this Commission. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission.
Announced in Open Commission (Jagdishwar Kumar Chopra) President
Dated:28.9.2021
(Jatinder Singh Pannu)
Member
