DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 29th day of September, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member
Date of Filing: 13/06/2019
CC/172/2019
Anand K S.,
536/13-RD Apartments,
Durga Nagar, Malampuzha,
Palakkad- 678 651.
(Party in Person) - Complainant
Vs
1.Flipkart Internet Pvt. Ltd.,
Buildings Alyssa, Begonia & Clove
Embassy Tech Village, outer Ring Road,
Devarabeesanahalli Village, Bengaluru. 560 103.
Karnataka.
2. Consulting Rooms Private Ltd.,
Instakart Services Pvt. Ltd., Othakalmandabam,
Village and town Pachayath-Madukarai Taluk,
Coimbatore-641 032.
3. Jeeves Consumer Service Pvt Ltd.,
46/1/1,1st Floor, Gravebhavipalaya,
Shamana Reddy Palya, Bommanahalli,
Bangalore- 560 068.
4. Smart Care Service,
No. 9, Vallapuzha Building, Near Sub Register Office,
Olavakkode-Palakkad-678 002. - Opposite parties
(Ops 1 Adv.Manoj Ambat
Ops 3rd Adv.R P Sreenivasan
OPs 2 & 4 Ex-parte)
O R D E R
By Smt.Vidya A., Member
Pleadings of the complainant in brief.
- The complainant purchased a Front Load Washing Machine of 7.5 kg made by Mar Q (2nd Opposite party) through Flipkart (1st opposite party) on 27.02.2019 for an amount of Rs.15,499/- along with 2 years additional extended warranty for Rs.1399/- The product was delivered at his home on 05/03/2019. After one month of its using, he noticed water leakage from the machine and he reported the matter to the company through e-mail. On 23.04.2019, the complainant got reply that their technician will visit his house within 48 hours. After one week, a technician visited and inspected the machine and informed that the leak is through the tub and since it is a major complaint, he will recommend for replacement of the entire unit.
On repeated enquiry, the service centre (4th opposite party) informed him that the
replacement request is in process. On 20.05.2019 they informed that the
replacement of the entire unit is not approved, but only tub replacement is
approved. They took the washing machine on 20.05.2019, promising to bring it after
repair on the same day or very next day. But they brought it back on 25.05.2019
night after service. The complainant could not check it at that time as he was
preparing for a journey along with his family.
When he checked the washing machine on 31.05.2019 after coming back, it worked only for 5 minutes and then stopped. The complainant immediately informed the service centre and they assured to attend the complaint within 48 hours. On 05.06.2019, a technician visited and checked and told that the problem is temporarily rectified and advised to limit the usage of the machine in Express wash mode only, ( as this mode takes only 18 minutes) otherwise water spillage will be more. Eventhough the technician assured to recommend for a complete replacement, nothing happened. The complainant used the washing machine only for 2 months. The complainant and family suffered mental agony and financial loss because of the defective product and irresponsible service by the opposite parties. The product has a manufacturing defect and the company failed to replace it or provide genuine service. So he filed this complaint
(1) For the complete replacement of the washing machine or to refund its cost
amounting to Rs.15,499+1399=16,898/-
(2) To pay Rs.50,000/- as compensation for mental agony and financial loss suffered
by him.
(3) Rs.10,000/- as compensation for the Deficiency in service on the part of the
opposite parties and (4) Rs.5000/- as cost of the proceedings.
- After admitting complaint, notices were issued to the opposite parties. Opposite party 1 & 3 entered appearance and filed version. Notice of 2nd Opposite party returned stating “insufficient address”. Later the complainant filed affidavit stating that the address of 2nd opposite party could not be traced after reasonable effort. 4th opposite party was set ex-parte as they did not appear before the Commission.
- Pleadings of 1st opposite party in their version
Complainant purchased the product through the platform/Website of Flipkart, which is manufactured and sold by different entities as evident from the Tax Invoice. The other averments regarding delivery of the product and conversation between complainant and other opposite parties is denied for want of knowledge. The complainant has approached only the manufacturer and authorized agent of the product and never contacted this opposite party. This opposite party provides only a platform for the transaction and no role beyond that and not liable to provide refund or return of the said product as per their terms of use.
No specific relief is sought against this opposite party and they are wrongly impleaded in the party array. Complainant himself has admitted that the product is having manufacturing defect and hence the responsibility to provide resolution lies upon the manufacturer only. The complainant never contacted the 1st opposite party informing his grievance with the product and hence the allegations against them is not sustainable. 1st opposite party is not engaged in selling of any goods on its own and they only provide online platform to facilitate transaction of sale and purchase of goods.
There is no cause of action against the 1st opposite party and the reliefs claimed are not maintainable against them. They are not liable to compensate the complainant and the complaint has to be dismissed with their cost.
- Pleadings of 3rd opposite party in their version
3rd opposite party is the authorized service centre of 2nd opposite party company. When the complainant raised a complaint about the washing machine, the service engineers inspected and proper services were provided by this opposite party and there was no manufacturing defect in the washing machine. The problem occurred due to mishandling and physical damage of the same by the complainant.
During installation or further services provided by this, opposite party, there was no negligence or lacunae from their side and they have clearly performed and acted as per industry standards. The opposite party was ready to provide services as per the warranty terms & conditions and explained the same to the complainant which he denied to accept and only demanded replacement which was not possible as per their Terms & conditions. The complainant was given proper instructions on how to maintain and use the washing machine which he failed to follow and this resulted in damage.
There were no service issues with the washing machine and this opposite party provided appropriate service as and when required under warranty terms & conditions. There is no Deficiency in service /Unfair Trade Practice on the part of this opposite party and they are not liable to pay any amount to the complainant.
5. From the pleadings of both parties, the following points arise for consideration.
(1) Whether the complainant has succeeded in proving the manufacturing defect in
the washing machine?
(2) Whether there is any Deficiency in service/Unfair Trade Practice on the part of
the opposite parties?
(3) Whether the complainant is entitled to the reliefs sought for?
(4) Reliefs, as cost and compensation.
6. Complainant filed proof affidavit in evidence and Ext A1 to A4 marked from his side. 1st opposite party filed proof affidavit and Ext B1 marked 3rd Opposite party also filed their proof affidavit and no documents marked from their side. Evidence closed. Complainant & 1st opposite party filed notes of arguments.
7. Point No.1
Complainant purchased a front load washing machine MAR Q 7.5 kg on 27.02.2019 through Flipkart on payment of Rs.15,499/- which is evident from Ext A1. Further the complainant took 2 years additional extended warranty on payment of Rs.1399/-
The complainant noticed leak in the washing machine during the washing cycle after one month of its purchase and he reported the matter to the company through e-mail. After one week, a technician came and inspected the problem and found the leak in the tub. They offered replacement of the entire unit at first, but later informed him that the company will only replace the tub. The Service people took the machine for maintenance and returned it after 5 days on 25.05.2019. But when he checked it on 31.05.2019, the washing machine stopped after working for 5 minutes. He reported the matter immediately to the service centre. On 05.06.2019, a technician came and inspected and informed him that they have temporarily rectified the problem and advised to limit the usage of the machine in Express Wash mode which takes only 18 minutes.
8. The complainant alleges manufacturing defect in the product. It is true that the issues in the washing machine started within a month of its purchase. The complainant’s main grievance is the leakage in the tub during the washing. Even though staff from the service centre inspected and found the leak, they rectified it only temporarily and the problem is still persisting. So he contends that it is manufacturing defect in the washing machine. But he has not taken out an expert Commission to inspect and find out the problem. In the absence of an expert report, we cannot conclude that the machine has manufacturing defect. The onus is on the complainant to prove this. Whether it is a curable defect or one which creeped in while manufacturing the product can be ascertained only with the help of expert report. So point no.1 is decided accordingly.
Points No 2 to 4 are considered together.
9. Eventhough complainant failed to prove the manufacturing defect, it is clear from the pleadings on both sides that the machine started showing problems within a month of its purchase and the complainant immediately reported the matter to the company. According to the complainant, the service centre 3rd opposite party, rectified it only temporarily.
3rd opposite party stated in their affidavit that there is no manufacturing defect in the washing machine and defects if any is found, is due to mishandling, physical damages, failure to take proper care and violation of usage guidelines by the complainant.
In spite of this pleadings there was no attempt on their part to prove their contention by cross-examining the complainant. They only contended that they provided appropriate services when the complaint was lodged and after that there were no further issues for the machine.
10. But the complainant produced e-mail communications between him and 3rd opposite party dated 02.09.2019 accepting the service request for maintenance. The complainant contended that on 25.09.2019, a technician visited and inspected the machine. He dismantled it and identified that there is a bearing damage and a minor leakage in the machine. He promised to replace the bearing once the part is received. But on 01.10.2019, he got a text message that the service is completed. On enquiry regarding maintenance request status as ‘completed’ 3rd opposite party informed to contact 1st opposite party, Flipkart for further assistance. The complainant produced e-mail communication between them evidencing his contention.
So 3rd &4th opposite parties being the service centers had failed to provide proper service within the warranty period. The complainant could not furnish the correct address of ‘MAR Q’ the manufacturer after earnest effort. So 3rd and 4th opposite parties as their service centre are bound to contact the manufacturer and provide proper service by replacing the defective part which they failed to do. So they are liable to compensate the complainant for that.
11. 1st opposite party’s contention that they are only providing online platform for different sellers and they are not the manufacturer/Authorized service centre of the product sold to the complainant and they are not responsible for the issues in the product cannot be accepted.
Flipkart, of course provide the online platform/website for different sellers for selling their product. Being an intermediary they are responsible for the quality of the items sold through it. They have to ensure that the products sold through their platform is having the required standard. Further in case of any complaint regarding the product, they are bound to contact the manufacturer and replace/repair the defective product.
The 1st opposite party, Flipkart being the intermediary is bound to instruct the sellers who sells their product through it to display their correct address and other details. Here the complainant could not serve notice on the manufacturer or contact them due to the incorrect address shown in the site.
12. Further Ext A4 copy of the print out from flipkart shows the product name as “Mar Q by flipkart’. So the 1st opposite party’s contention that they are not responsible for the defects in the product is found to be incorrect. The complainant contacted the 1st opposite party in the e-mail So from the evidence adduced by the complainant, it is proved that the opposite parties failed to provide proper service when the washing machine became defective within the warranty period itself. Further the complainant has taken 2 years additional extended warranty on payment of Rs.1399/-
So the opposite parties are liable for their Deficiency in service and are bound to replace/repair the defective part. The conduct of the opposite parties would have caused mental agony to the complainant. The complainant would have suffered mental agony when the newly purchased washing machine became defective within two months of its purchase. This made him file this complaint causing financial difficulties and other inconveniences.
Since the complainant had failed to prove the manufacturing defect in the washing machine, we cannot allow the prayer of complete replacement of the entire unit.
Resultantly the complaint is partly allowed.
1) We direct the opposite parties jointly and severally to pay Rs.15,000/- for their
Deficiency in service, Rs.12,000/- as compensation for the mental agony &
financial loss suffered by the complainant and Rs.5000/- as cost of the litigation.
2) The opposite parties are further directed to repair the washing machine by
replacing the defective part free of cost or in the alternative, they are directed to
pay a compensation of Rs.5000/- to the complainant.
The opposite parties shall comply the order within 45 days from the date of receipt of copy of this order failing which the opposite parties shall pay an amount of Rs.250/- per month or part thereof by way of solatium to the complainant till date of final payment.
Pronounced in open court on this the 29th day of September, 2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya A
Member
Sd/-
Krishnankutty N.K.
Member.
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Photocopy of Tax invoice dated 01.03.2019.
Ext.A2 – E mail communications between complainant and OP.
Ext.A3 – Copy of Registered letter sent to OP2. (Returned)
Exhibits marked on the side of the opposite party:
Ext.B1 – Flipkarts Terms of Use
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: NIL
Cost : 5000/-(Rupees Five thousand only).
