BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.294 of 2021
Date of Instt. 01.09.2021
Date of Decision: 20.03.2023
Jagir Singh son of Pirthi Ram R/o 118, Street No.5, Preet Nagar, Ladowali Road, Jalandhar.
..........Complainant
Versus
1. Flipkart Internet Private Limited, Buildings Alyssa, Begonia and Clove Embassy Tech, Village Outer Ring Road, Devarabeesanahalli, Village Bengaluru, 560103, Karnataka, India through its Authorized signatory.
2. Konde Products and Services Pvt. Ltd. no.744, through its registered office: 1st Floor, 80 Feet Road, 4th Block, Bengaluru, Karnataka-560034 through its Managing Director/Authorized Signatory.
3. Xiaomi Technology India Pvt. Itd. 8th Floor, Tower-1, Umiya Business Bay, Marathalli, Sarajpur, Outer Ring Road, Bengluru through its authorized signatory.
4. Bunty Mobile World, 1st Floor, Upper Lovely Dhaba Bastian Road, near Raja Hospital and Football Chowk, Jalandhar through its Authorized Signatory.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Manvijay Singh, Adv. Counsel for the Complainant.
Sh. A. S. Sohal, Adv. Counsel for OP No.1.
Sh. Bharat Puri, Adv. Counsel for OP No.2.
Sh. Aditya Jain, Adv. Counsel for OP No.3.
OP No.4 exparte.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that on 22.12.2020, the complainant purchased a Mobile handset MI Poco M2 Pro (Green and Greener 64 GB) bearing IMEI No.862757048739033 from OPs No.1 to 3 vide bill/cash memo no.FACUA1210106980 dated 22.12.2020 for a sum of Rs.12,139/-. At the time of purchasing the above said mobile, the complainant was assured by the OPs No.1 to 3 that the above handset is free from any defect. It was also assured that there is a warranty of one year from the date of purchase of mobile set. It was also assured to the complainant that in case of any technical or mechanical problem or manufacturing defect in the mobile set, due service will be provided to the complainant through their authorized service centre and in case the mobile suffered from incurable and manufacturing defect then the said mobile will be replaced. The OP No.4 is its authorized service centre/company official complaint Centre at Jalandhar. After purchasing the above said mobile from OPs No.1 to 3, it was observed by the complainant that the above said mobile set was not working properly. The receiver of the mobile was not responding properly and one side ear phone is not working and again and sometimes due to the said problem the mobile was not receiving the incoming calls with clear sound as the mobile was not in working properly. After observing the above said defects, the complainant immediately approached the OPs No.1 to 3 and submitted his complaint. But the OPs No.1 to 3 failed to give any explanation for the same, as such the complainant called on their toll free number and requested the OPs to replace the handset as the same is defective since the day of its purchase. But the OPs No.1 to 3 were not ready to replace the mobile and continue to linger on the matter on the pretext that he will make communication with the company with regard to the handset to the complainant and will make special efforts to get the handset replaced but of no effect and ultimately the complainant was asked to approach to the service center of the company. Ultimately as per advise the complainant approached to the authorized service centre i.e. OP No.4 and submitted his complaint on 12.3.2021 and OP No.4 who further assured the complainant that they will get the handset of the complainant replaced and thereby with these assurance the OP No.4 received the handset of the complainant. Thereafter the complainant number of times approached the OP No.4 to get his new handset as assured by the OPs, but inspite of after 4-5 visits neither the handset of the complainant was replaced nor his handset was repaired rather it was stated to him that the company is not ready to replace the handset with new handset. The complainant told that since the handset is in warranty and is not working and is having manufacturing defect which cannot be cured as such the same should be replaced. Thereafter despite of various visits reminder and requests the opposite parties have failed to provide new handset and continue to linger on the matter and failed to provide sufficient service to the complainant even failed to answer the phone calls of the complainant which clearly shows the malafide intention to the OPs. The complainant requested the OPs to replace the handset but to no effect. It is worthwhile to mention here that the OPs are under obligation to give the satisfactory reply to the complainant and to replace the handset of the complainant after removing the defect from it or in the alternative in obligation to return the complete money of the handset to the complainant. The complainant purchased the above mentioned mobile from OPs No.1 to 3 thus he is the consumer of OP No. 3 or further give the mobile to the service station i.e. OP No.4 and as per the warranty card the complainant is customer of all the OPs and non cooperation from both the opposite parties clearly shows deficiency of service and unfair trade practice on their part. The complainant has also served a legal notice dated 19.4.2021 upon the OPs but inspite the service of the notice the OPs failed to replace the mobile handset of the complainant and refused to refund the payment of the said handset and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the sum of Rs.12,139/- alongwith 18% per annum interest from 22.12.2020 being price/cost of the handset alongwith Rs.1,00,000/- as damages/compensation alongwith interest @ 24% per annum from the date of purchase till its actual realization and Rs.22,000/- as litigation expenses for harassment, tension, inconvenience, unfair trade practice, deficiency in service in the interest of justice.
2. Notice of the complaint was given to the OPs, but despite service OP No.4 failed to appear and ultimately OP No.4 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the complainant has cooked all crooked and falsified stories in the present complaint against this answering OP No.1. The complainant has himself stated in the present complaint that the product purchased by the complainant had manufacturing defects and the same is also evident from a bare reading of the present complaint. Thus, the complainant has wrongfully impleaded OP No.1, who only acts as an online intermediary, under present complaint and hence, the present complaint deserves to be dismissed against the OP No.1 at the first instance. It is further averred that the complainant has suppressed true and material facts from this Commission and trying to mislead this Commission. Hence, the present complaint is not maintainable and liable to be dismissed against this OP No.1. It is further averred that the whole grievance of the complainant is with respect to alleged manufacturing defect in Mobile Phone and after sale services not provided by the manufacturer/or the service centre engaged by the manufacture under manufacturer's warranty clause. The facts needs to be recorded here that the product was purchased from the third party seller i.e. Konde Products and Services Pvt. Ltd. and the same is also evident from the tax invoice attached by the complainant himself in the present complaint. This independent third-party seller had sold the product to the complainant and supplied it through third party logistic service provider. Thus, the OP No. 1 never came in possession of either the actually ordered product or the alleged defective product at any point of time. Therefore, the OP No.1 is unable to ascertain the authenticity of the grievance raised by the complainant. It is further averred that the complainant has presented the present complaint in a very manipulative manner. However, it is pertinent to note here that it is the Seller of the Product that provides 7 days replacement Policy 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. Thus, if the product is actually found defective by the seller within the said 7 days replacement policy, the seller provides replacement to the buyer. However, in the instant matter the complainant has miserably failed to avail the 7 days replacement Policy that is provided by the Seller of the Product. It is submitted that once this 7 days replacement policy lapses away the sole responsibility to provide resolution lies upon the manufacturer and its authorized service centre. Further, it is important to note here that complainant has never contacted the OP No. 1 for its alleged grievance. The complainant had approached the manufacturer or its authorized Service Centre and the same is also evident from the Copy Service record issued by the Authorized Service Centre of the manufacturer i.e. OP No.4. Even if the averments made by the complainant are believed to be true still, any grievance which the complainant has is only against the Manufacturer of the product or the Authorized Service Centre appointed by the Manufacturer for not providing after sale services to its customers. It is pertinent to note that OP No.1 is not owned/ controlled/ associated with the manufacturer, seller or the authorized service centre in the present Complaint and in no way, assumes liability for delivery of alleged manufacturing defects. Hence, in view of the above mentioned submissions, there is no cause of action against the OP No.1. The OP No.1, Flipkart Internet Private Limited is engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application. The OP No.1 is an online marketplace e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection (E-commerce) Rules, 2020. It is further averred 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. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. Consumer Protection (E-commerce) Rules, 2020 has clearly distinguished marketplace E-commerce platform from the seller of the goods. Thus, for any act of the seller, the marketplace e-commerce platform or its operating entity cannot be held liable. It is submitted that the business of the OP No.1 falls within the definition of an ‘intermediary’ under Section 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 further averred that the OP No.1 is protected by the provisions of Section-79 of the Information Technology Act, 2000. Moreover, Section 5 (1) of Consumer Protection (E-Commerce) Rules, 2020 also provides for exemption to marketplace e- commerce entity under sub section 1 of Section 79, who complies with sub-Section (2) and (3) of that section. The product purchased by the Complainant has not been sold by OP No.1. The OP No.1 has no role in providing warranty of the product sold by an independent seller through the Flipkart Platform of the OP No.1. As an intermediary the role of the OP No.1 is limited to providing a facilitation platform for interaction of buyers and sellers and is not liable for any manufacturing defect, warranty or any other liability arising out of the product. The OP No.1 merely being an online intermediary does not bear any responsibility for defects in the product (if any) that are merely purchased through the online platform of OP No.1. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant has suppressed the true and material facts from this Commission and has approached with unclean hands. The complainant is trying to mislead the Commission by presenting a concocted story, hence the present complaint is not maintainable and liable to be dismissed on this ground. It is further averred that the answering OP is not engaged in the sale of any goods manufactured or produced by its own. The answering OP is engaged in sale of goods manufactured and produced by other manufacturer. It is further averred that the complaint is wholly false, frivolous and vexatious and has been filed with malafide intention and for harassing the answering OP. The complaint is not maintainable either in law or on facts and is liable to be dismissed in limine as it does not show any cause of action against the answering OP. The present complaint is devoid of any merits, and, the averments made in the complaint are baseless and do not cover the complete facts of the case and are made only with the intentions to defame the answering OP and extorting money in an unlawful manner. Therefore the complaint is liable to be dismissed on this ground alone. It is further averred that there is no loco standi to file the present complaint by the complainant as it is evident from the complaint itself that no complaint was raised with the answering OP rather the issue was raised with Flipkart Internet Pvt. Ltd. which is a independent company and all the conversation took place between Flipkart and other OPs. There is nothing on record which shows that any kind of issue was raise with the answering OP. It is further averred that the products sold by the answering OP carries manufacturer's warranty. As a reseller, involvement of answering OP in the entire transaction is limited only to selling the products of various manufacturers and in the present complaint the manufacturer has been impleaded as party and incase any problem arises with the product in question within warranty period, then they are liable for the rectification of the same. It is pertinent to mention here that there has neither been any shortage of supply nor any deficiency of service on the part of the answering OP. Liability to provide after sale service does not lie upon the answering OP as the answering OP is neither the manufacturer nor the service centre engaged by the manufacturer and hence, no cause of action lies against the answering OP in the present complaint. It is further averred that there has been no dispute contemplated under the Consumer Protection Act between the Complainant and the answering OP as the answering OP is not the manufacturer of the product sold to the complainant and has no facility or knowledge to ascertain whether the product in issue in the present complaint is defective or has manufacturing defects. Therefore the reliefs prayed for by the complainant against the answering OP are wholly unreasonable and unsustainable in law, and, the answering OP is not liable to pay any compensation to the Complainant and thus the Complaint against answering OP is liable to be dismissed at the first instant. In view of the aforesaid reasons the answering OP have been wrongly impleaded in the present complaint. Therefore, the present complaint is liable to be dismissed for mis-joinder of necessary party. It is further averred that the answering OP is an online reseller registered on Flipkart.com. The answering OP not the manufacturer but an online reseller and the products sold by answering OP carry warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms & conditions determined by the manufacturers only. On merits, the factum with regard to purchase of the product in question by the complainant is admitted. It is also admitted that there was a bend from middle side of the mobile, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that Respondent No.3/OP No.3 is a manufacturing company Xiaomi Technology India Private Limited. The Respondent No.3 respectfully submits that Mr. Jagir Singh/Complainant has purchased a mobile handset sold under POCO brand-namely, the POCO M2 Pro on December 22, 2020 for Rs.12.139/- The Product sold and delivered to the Complainant bears the IMEI No.862757048739033. Thereafter, on March 12, 2021, the Complainant approached the authorized service centre of the Respondent No.3 for the first time wherein, after examining/inspecting the handset, it was ascertained that due to mishandling at the hands of the complainant the Product was bent, in technical term which is called Customer Induced/Physical damage [00W/CID]. The Photographs, as taken at the time of inspection/examination highlighting the bent in the Product is annexed as Exhibit A (colly). The technician of the authorized service centre of the Respondent No.3 duly informed the Complainant about the Customer Induced/Physical damage in the Product and also requested the Complainant to pay repair costs since any Customer Induced/Physical damage is not covered under standard warranty terms and conditions applicable to the Product. The Complainant however, refused to pay the repair costs and the Product was duly returned to the Complainant without repair. Therefore, it is clear that there is no deficiency of service on part of the Respondent No.3 or any of its agent and the present complaint merits a dismissal in limine. It is further averred that the Respondent No.3 respectfully submits that the Complainant has not presented any technical evidence by way of technical report from a reputed technical laboratory in support of his allegations to establish that the damage occurred to the Product is a consequence of a defect in the Product and not a consequence of use or mishandling by the Complainant, which was ought to be produced with this Complaint. The Complainant has himself damaged the Product and invalidated its warranty terms and is now averring baselessly to misguide this Commission. The Respondent No.3 submits that the Complainant has failed to produce any evidence establishing deficiency of service or a manufacturing defect in the Product. Therefore, there is no cause of action against the Respondent No. 3 and hence the present Complaint may be dismissed in limine. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
5. Rejoinder not filed by the complainant.
6. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
7. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
8. The complainant has purchased a Mobile Handset MI Poco M2 Pro on 22.12.2020 vide Invoice/Bill Ex.C-1 for Rs.12,139/- from OPs No.1 to 3. The contention of the Ld. Counsel for the complainant is that the above said mobile set was not working properly. The receiver of the mobile was not responding properly and one side ear phone was not working and sometimes due to the said problem the mobile was not receiving the incoming calls with clear sound. Regarding defect, the complainant approached the OPs No.1 to 3, but the OPs No.1 to 3 failed to resolve the problem and thereafter the complainant approached OP No.4/Service Centre and OP No.4 received the said handset, which is evident from Ex.C-2. But OP No.4 also failed to repair the handset of the complainant despite number of visits by the complainant. The handset is within warranty period. Request has been made to allow the complaint.
9. The contention of the Ld. Counsel for the OPs that the OP No.1 is an electronic market place and act as intermediary to facilitate sale transaction between independent third party sellers and independent customers. It is not disputed that the OP No.1 provided a platform to the complainant to purchase the mobile from the concerned company. But the fact remains that the complainant has made the payment to the flipkart for onward giving to the seller or manufacturer as the OP was intermediary of the platform provided for both seller and buyer. Flipkart cannot escape or run away from its liability on the ground that there was no privity of contract between the buyer and the seller. As per record and the proved document Ex.C-1, it is proved that the entire transaction and correspondence was done through the flipkart online portal i.e. www.flipkart.com. It is proved that the complainant purchased the product through flipkart website, therefore there exist the relationship of a consumer and the service provider between the complainant and the OP. The OP No.1 opted to provide the services of selling Mobile by giving online platform through their website, therefore the complainant becomes consumer. As per Ex.C-1, the Mobile was sold by OP No.2 and it was through Flipkart i.e. OP No.1 to 3. The OP No.2 sold the Mobile to the complainant.
10. The OP has sought the exemption under Section 79 of the Information Technology Act. Under Consumer Protection Act, 2019 there are rules regarding the liabilities of marketplace e-commerce entities. These rules have been notified on 23 July 2020 by the Department of Consumer Affairs. It has been mentioned that as per rule 5(1) of the liabilities of marketplace e-commerce entities, a marketplace e-commerce entity which seeks to avail the exemption from the liability under sub-section (1) of Section 79 of the Information Technology Act, 2000 shall comply with sub-sections (2) and (3) of that section, including the provisions of the Information Technology (Intermediary Guidelines) Rules, 2011. It has specifically been mentioned that a marketplace e-commerce entity shall require sellers, through an undertaking, to ensure that descriptions, images and other content pertaining to goods or services on their platform is accurate and corresponds directly with the appearance, nature, quality, purpose and other general features of such good or service. Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform:
(a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage: Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution.
11. The contention of the OP No.2 is that the OP No.2 is a registered seller on the website ‘Flipkart.com’ and sells products of other manufacturers, trades etc. under their respective trademarks through the website. The OP No.2 is not engaged in the sale of any goods manufactured or produced by its own. As a reseller, involvement of answering OP in the entire transaction is limited only to selling the products of various manufacturers and in the present complaint the manufacturer has been impleaded as party and in case any problem arises with the product in question within warranty period, then they are liable for the rectification of the same.
12. The contention of the OP No.3 is that due to mishandling at the hands of the complainant the product was bent, the same is evident from Ex.OP3/A. As per Ex.OP3-D/C-2 i.e. Service Record, the fault is ‘Receiver no sound, one side earphone not working’ and in Inspection Remarks, it is mentioned that ‘handset bend from middle side and customer not agree to repair’, meaning thereby the same is not covered in warranty as the same is due to physical damage and the only solution is repair with costs.
13. As per record, the complainant has purchased the Poco M2 Pro handset for Rs.12,139/- vide Ex.C-1 through the OP No.1, being the intermediary of the platform. Ex.C-1 is the document in which the name of the manufacturer has clearly been mentioned and the website of the seller has also been mentioned. Ex.C-2 is the Service Record, in which the inspection remarks has been given by the OP No.4/Service Centre. All the correspondence is between the complainant and the OP No.4. The complainant has never opted to inform the OP No.1 about the defect in the mobile set. The mobile handset was never returned to the OP No.1 for replacing the same. The OP No.1 has given the detail of the manufacturer as well as the seller and the complainant has written to avail the services of the manufacturer, customer care and the seller. The OP No.1 acted just as an intermediary and no correspondence is with the OP No.1 and OP No.2. The OP No.4 is a service centre. So, there is no deficiency in service on the part of the OP No.1, OP No.2 and OP No.4 and complaint against OP No.1, OP No.2 and OP No.4 is dismissed.
14. It is not disputed that the complainant purchased the mobile of the company of the OP No.3 through OP No.1 on 22.12.2020 for Rs.12,139/-. Ex.C-2, which is the service record, show that the complainant complained for ‘receiver no sound, one side earphone not working’ and as per inspection remarks handset bend from middle side and customer not agreed to repair and the mobile set was not received by the complainant. This clearly shows that the mobile got defect within a year i.e. within the warranty period. The contention of the OP No.3 is that there is fault of the complainant himself and there is a mishandling of mobile set. He has produced on record the photographs to show that there is a bend in the middle of the mobile due to mishandling and this is not the manufacturing defect. He has proved on record the photographs Ex.OP3/A consisting of four pages and he has relied upon Ex.OP3/B to show that if there is any damage due to the fault of the consumer, then the warranty goes. Though, the photographs have been filed by the OP to show that there is a bend but there is no document to show that this bend was due to the fault of the complainant. The defect occurred within the warranty period. Even the complainant has not filed on record any document to show that he did not mishandle the mobile. So, the request of the complainant for replacing the mobile or refund of the amount cannot be considered, but however there is a deficiency in service as there were other faults also in the mobile, apart from bend of the mobile, which were ‘receiving no sound and one side earphone not working’. Thus, there is a deficiency in service and unfair trade practice on the part of the OP No.3 for not giving proper service to the complainant.
15. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OP No.3 is directed to repair the handset of the complainant regarding the complaint of ‘receiving no sound and one side earphone not working’ and any other defect which have occurred during this period. The OP No.3 is also directed to repair the bend of the mobile, if possible. The complainant has already availed the three months warranty as he had used the phone for three months, therefore the OP No.3 is directed to issue the complainant further warranty of remaining months i.e. for nine months. Further, OP No.3is directed to pay a compensation of Rs.5000/- to the complainant for causing mental tension and harassment and Rs.3000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
16. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
20.03.2023 Member Member President
