BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 181/2015 Filed on 30.04.2015

ORDER DATED: 30.11.2016

Complainant:

Safdar. V, House No. 43 A, Ambadi, Deva Nagar,Kazhakkuttom, Thiruvananthapuram-695 582.

                               (By adv. R. Suja Madhav)                           

Opposite parties:

1. The Flipkart Internet (P) Ltd., Vaishnavi Summit, Ground Floor, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala Industrial Layout, Bangalore-560 034 represented by its Director.

(By Adv. Awanish Kumar)

2. The Manager, Ascent Technologies, T.C 3/2646-(4), Opp: Meditrinia Hospital, Plamoodu, Pattom P.O, Thiruvananthapuram.

3. The Managing Director, Motorola Mobility India Pvt. Ltd., No. 66/1, Plot No.5, 4^th & 5^th Floor, Cvr Building, C.V. Raman Nagar, Bangalore-560 093.

This C.C having been heard on 20.10.2016, the Forum on 30.11.2016 delivered the following:

ORDER

SMT. LIJU B. NAIR:  MEMBER

Case of the complainant is as follows:  The 1^st opposite party is the electronic trader and the dealer of the 3^rd opposite party Motorola Mobility India Pvt. Ltd. And the 2^nd opposite party is the authorized service centre of the 3^rd opposite party and the 3^rd opposite party is the manufacturer Motorola Mobility India Pvt. Ltd.  The complainant had purchased a Motorola mobile model Moto G (2^nd Gen) having IMEI No. 353321068037707 through the 1^st opposite party online shopping of Flipkart.com, who is the authorized dealer of the 3^rd opposite party.  The complainant had purchased it on 20.09.2014 for an amount of Rs. 12,999/- vide invoice No. #BLR-WFLD20140901066088 with a warranty of one year.  The complainant had purchased the said mobile, being a branded one.  But unfortunately, immediately after its purchase the mobile started to show so many problems such as low battery backup, a pixel dot in display etc.  The said mobile was not working properly and got switched off completely and there was no battery backup, and the said problem occurred within the warranty period.  The 2^nd opposite party is the only authorized service centre and the complainant had approached the 2^nd opposite party on 01.11.2014 to rectify the problem.  The 2^nd opposite party told that they will replace the mobile and thereafter for checking the status the complainant had called the 2^nd opposite party.  The 2^nd opposite party told that they will not replace it, rather they will service it and give.  The complainant had given the mobile for repairs on 29.11.2014 and thereafter on 12.12.2014, due to continuous problems but the 2^nd opposite party assured that since the complaint is with respect to the board and it has to be sent to the factory for repair and will rectify it within a period of one month.  But unfortunately till this time they have not repaired the defective mobile even after a long period of four months and the same is still kept in their custody.  The opposite party had given the assurance to repair the same within a month.  The complainant approached the opposite party several times, but they keep on giving the false assurances that it will be given within a few days after its repair.  Believing the false assurances of the opposite party the complainant had waited for such a long period of nearly 6 months.  On 29.01.2015 the complainant had sent a legal notice to the opposite parties 2 & 3 stating explaining the whole position.  Even though the 2^nd opposite party received the notice, they did not make any reply to the said notice and the notice to the 3^rd opposite party returned unserved.  But there was no response to the said letter from any of the said opposite parties.  Thus the opposite parties had committed unfair trade practice and deficiency in service.  The said mobile set suffers from inherent manufacturing defects and the said defect is not yet rectified and the opposite parties had not initiated any steps to replace the mobile set as offered by them.  The 3^rd opposite party being the manufacturer is liable to replace the system as per the norms of fair trade practice.  As the system is having inherent manufacture defects, the same had to be replaced with a new one.  The complainant had already spent an amount of Rs. 12,999/- for the defective system and hence the entire interest at commercial rate is also to be refunded.   

1^st opposite party filed version contending as follows:  1^st opposite party is a company duly registered under the provisions of the Companies Act 1956.  The company is engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com. The 1^st opposite party provides online market place/platform/technology and/o 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 including but not limited to games, mobiles, music, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc.  The business of the 1^st opposite party fall within the definition of an ‘intermediary’ under Sec. 2(1)(w) of the Information Technology Act 2000 which is reproduced hereunder: “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”. It is wrong and hence denied that the 1^st opposite party is an electronic trader and authorized dealer of the 3^rd opposite party.  1^st opposite party provides online market place/platform/technology and/or other mechanism/services to various sellers and buyers of products to facilitate the transactions of sale purchase for various goods, by and between respective buyers and sellers.  The 1^st opposite party by itself is neither engaged in the trading activity of any goods nor otherwise deals in sale purchase of any goods.  Hence it is denied that the 1^st opposite party is an electronic trader and authorized dealer of 3^rd opposite party.  The complainant purchasing one mobile Motorola Mobile Model Moto G (2^nd Gen) having IMEI No. 353321068037707 on 23.09.2014 for Rs. 12,999/- is a matter of record.  In so far as the mobile phone of the complainant getting so many problems such as low battery backup, a pixel dot on display etc. mobile not working properly and got switched off completely there was no battery backup is a mere statement and the complainant may put to strict proof of the same.  The 1^st opposite party is not engaged in selling of any goods on its own and 1^st opposite party has never sold any goods/product to the complainant.  Hence, by no stretch of imagination, it can be said that there was any deficiency in service on the part of the 1^st opposite party.  Further 1^st opposite party does not have any knowledge or facility to ascertain if the alleged defects are due to inherent manufacturing defects or customer abuse.  The relief claimed under the present complaint is untenable and unreasonable and the 1^st opposite party, under the circumstances and for the reasons stated above, is neither liable to replace the mobile/refund the money nor to pay any compensation to the complainant.  

2^nd and 3^rd opposite parties remain exparte.

Points raised:

1. Whether there is any deficiency of service or unfair trade practice on the part of opposite parties?
2. If so, reliefs and costs if any?

Points (i) & (ii):- Complainant filed affidavit along with 5 documents which were marked as Exts. P1 to P5.  This is a case regarding a mobile handset.  It is still with the 2^nd opposite party to whom the complainant gave it for repair.  Complainant is alleging manufacturing defect.  Since the alleged handset is with the opposite party, complainant escaped from the liability of taking out an expert opinion to ascertain the defects as per Consumer Protection Act.  Only the 1^st opposite party contested the matter and they are of the opinion that they are only an intermediary for sale and not the manufacturer and no claim will stand against them.  But being an intermediary for sale and the alleged set happens to be sold out through their platform, they can’t escape from the liability of selling a defective set.  All opposite parties are equally liable to redress the grievance of the complainant which we feel as genuine.  The purpose for which he had brought the handset was not served, and so he is eligible for compensation for mental agony on that aspect we fix Rs. 5,000/-.  Since he was unnecessarily dragged to a legal dispute he is entitled to cost of this litigation also which we fix as Rs. 2,000/-.

In the result, complaint is allowed.  Opposite parties are jointly and severally ordered to pay the complainant Rs. 12,999/- within 2 months of receipt of this order along with Rs. 5,000/- as compensation and Rs. 2,000/- as cost.  After this period, the entire amount i.e; Rs. 19,999/- will carry interest at the rate of 9% till the date of realization. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of November 2016.

Sd/-

LIJU B. NAIR                        : MEMBER 

 Sd/-

P. SUDHIR                            : PRESIDENT

Sd/-

                        R. SATHI                               : MEMBER

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C.C. No. 181/2015

APPENDIX

  I      COMPLAINANT’S WITNESS:

                             NIL

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of tax invoice dated 20.09.2014 for Rs. 12,999/-

P2     - Copy of customer unit receipt

P3     - Copy of legal notice dated 28.01.2015

P4     - Postal receipts and acknowledgement card

P5     - Returned postal envelope

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

NIL

                                                                                                      Sd/-

PRESIDENT

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