West Bengal

Birbhum

CC/120/2023

KARABI MONDAL - Complainant(s)

Versus

FLIPKART INTERNET PRIVATE LIMITED - Opp.Party(s)

Self

31 Jul 2024

ORDER

hri Sudip Majumder  President in Charge.

            The complainant/petitioner files this case U/S 35 of Consumer Protection Act, 2019. In the instant case, the complainant, Karabi Mondal, being a power of attorney holder of Sourav Mondal, filed this case on behalf of Sourav Mondal. The fact of the case in brief is that one Sourav Mondal, Brahmanigram, Jamna, Birbhum placed an order for OnePlus Nord CE 2 Lite 5G (Blue Tide, 128 GB) Mobile Handset vide order ID: OD328168182437354100 dated 23/05/2023. On 26/05/2023 he paid Rs. 18,903/- as consideration value through his mobile vide Transaction ID: T2305261543064259172751 and he received the product on the same day. He observed that the handset in question is defective in both the cameras and charging function. Consequently, on 27/05/2023 he requested to OP No. 1 for arrange a replacement. Thus, the OP No. 1 provided a new handset on 05/06/2023. Unfortunately, the replaced handset was also defective in connectivity with Battery Drain issue. On that day he requested the OP No. 1 to return the handset and refund the booking amount due to dissatisfactory action in providing services.

            It is the further case of the complainant that on 14/06/2023 the OP No. 1 rejected the return request and a cause was shown that the address of the consumer is in a remote area. Despite of numerous attempts, including phone calls and chats to Flipkart customer service, he was unable to secure a return or replacement of the defective handset.

           

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It is the next case of the complainant that as per his request, OnePlus Company arranged for a courier to pick up the device from their Delhi service centre. Upon examination, OnePlus service centre confirmed the same as Connectivity and Battery Drain issues that complainant had previously reported. Furthermore, they ascertained that the device’s warranty had already activated on 22 July 2022 as per the device IMEI Number (864835064266715), leaving no warranty pending.

            The complainant stated in Para 13 of her written notes on argument “Acting upon OnePlus’s recommendation, I visited a local service centre in Kolkata on 4 Aught 2023. The centre issued documentation validating the pre-existing activation of the device’s warranty a year prior to my purchase, effectively rendering the device out of warranty.

            It’s clear that despite purchasing the device on 23/05/2023, the service centre investigation revealed that the device had been activated much earlier, on 22/07/2022. This suggested that the device was previously used by someone else before being sold to me. This discrepancy highlights a serious case of receiving a faulty device and constitutes a clear instance of deficiency in services and unfair trade practices by the opposite parties 1 and 2, as outlined in the Consumer Protection Act of 2019.”

            Hence, after finding no other alternative the complainant is compelled to file this complaint before this Forum/Commission for proper relief and prays for order to:-

“(i) To pay to the complainant Rs. 18,903/ by respondents who forfeited by respondent and pay 18% compound interest of per annum until the case dispose of.

2. To pay to the complainant, towards compensation regarding for mislead, pay sum of Rs. 1,00,000/ from the respondents.
3. To pay to the complainant for unfair trade practice, unethical business, fraud company services of Rs. 1 lakh.
4. To pay to the complainant for deficiency in service of a sum of Rs. 1,00,000/-
5. To pay to the complainant for mislead advertisement, false promise & statement for trap to consumers for huge selling by the Respondents specially by respondents; of Rs. 50,000/- with 18% p.a. compound interest.
6. To pay to the complainant for harassment of Rs. 50,000/.
7. To pay to the complainant for harassment of Rs. 25,000/ for litigation charges.
8. Any other relief/reliefs this Hon’ble Commission may deem fit, in the interest of justice.”

It appears from case record that the both the OP members filed their written version and written notes on argument. No evidence in chief had been filed by the OP sides.

 

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Complainant’s side submitted evidence-in-chief and written notes on argument. Some documents have also been filed by the complainant. Those have been compared with original documents. Thereafter, Ld. Advocates for the both parties made oral argument in support of their case.

Heard Ld. Advocates for the both sides.

Considered.

            Perused all the documents.

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?           
3. Whether there is any deficiency in service on the part of the OP/Axis Bank Ltd.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            Sourav Mondal ordered one Mobile Handset of OnePlus through Flipkart Interest Pvt. Ltd./OP No. 1 dated 23/05/2023. On 26/05/2023 the customer paid Rs. 18,903/- through online mode and received a defective Handset vide original Invoice No. FAJI802400010108 dated 23/05/2023 from OP No. 2.

            Thus, Sourav Mondal is a consumer and the OP members are the service providers. Hence, Sourav Mondal is a consumer as per Sec. 2(7) of the Consumer Protection Act, 2019. Here, the complaiannt, Karabi Mondal being the power of attorney holder of Sourav Mondal, she filed this complaint case before this Commission on behalf of Sourav Mondal.

Point No. 2:

            In the instant case, the complainant filed this case in person she did not mention the actual date for cause of action. But, we observed that the Mobile Handset in question was purchased on 23/05/2023 and the case filed on 27/09/2023 and, as such, it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 2019 and, as such, the instant complaint is not barred U/S 69(1) of the C.P. Act, 2019.

            Pecuniary Jurisdiction of this District Commission as per Notification No. G.S.R. 892(E). dated 20^th December, 2022 by Consumer Affairs Department, Govt. of India, New Delhi is Rs. 50 lakh.

            That the complainant is resident of Birbhum, which is under the Territorial Jurisdiction of this District Commission as per Sec. 34(2) of C.P. Act, 2019.

            Hence, this Commission has Pecuniary Jurisdiction as well as Territorial Jurisdiction.

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Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant ordered for OnePlus Nord CE 2 Lite 5G (Blue Tide, 128 GB) Mobile Handset vide order ID: OD328168182437354100 dated 23/05/2023 through OP No. 1 and also paid the consideration value of Rs. 18,903/- while approaching the service centre of the OnePlus to resolve the defects of the mobile phone in question, the complainant came to know that the same had already crossed its warranty period. The petitioner/complainant files a document from the Kolkata Service Centre of OnePlus as “the Handset had been activated much earlier i.e. on 22/07/2022”, but the date of purchase/order of the Handset in question was on 23/05/2023. The complainant informed the fact to the customer care of  the OP No. 1 at once.

It is necessary to mention that after receiving the complaint from the complainant, the OP members neither took any initiative to solve the problem of the complainant nor started any investigation as per the said complaint.

Both the OP members argued that they are not manufactures. As per order of the customer they delivered the Handset to the customer. It there is any defect in the Handset in question, the manufacturer will be liable for the same.

The complainant cited judgement in support of her case: CC/113/2023 SCDRC, Chandigarh, Judgement dated 20/02/2024, CC/196/2022, DCDRC, Vijayawada, judgement dated 26/07/2023, CC/307/2022, DCDRC, U.T. Chandigarh, judgement dated 14/03/2024 and CC/13/2021, DCDRC, West Godvari District (A.P.), judgement dated 13/03/2023.

It is the submission of the complainant that the OP members in the present case also parties to the above mentioned cited cases. Hence, from the above cited cases it is clear that the OP members are liable due to misleading advertisement, deficiency in service as well as unfair trade practice.

From the documentary evidence as available in the case record that both OP members filed their written version and written notes on argument. No evidence in chief has yet been filed by the OP members. Only written version has no value unless the contents thereof arte established by evidence but nobody caused to counter afterwards.

The petitioner/complainant has proved the case by filing document from the Kolkata Service Centre of OnePlus as “the Handset had been activated much earlier i.e. on 22/07/2022”, but the date of purchase/order of the Handset in question on 23/05/2023. Hence, the OP members could not negate liabilities it anyway in this regard. So, the claim of the petitioner stands.

 

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We find in Deepak Sinha Vs. Pal Peugeot Ltd. (2000) 3 CPJ 38 …..“Non-refunding of booking amount is amounts to unfair trade practice”. In the light of observation made by their Lordships in the above decision we find us safe to follow them and apply the ratio in the present dispute.

In our opinion, non-refunding of booking amount is very significant. Such incident alone can bring mishap to the defaulting party.

 It is proved beyond all reasonable doubt that there is/was deficiency in service as per Sec. 2(11) of the C.P. Act, 2019. Moreover it is a pointer of unfair trade practice as per   Sec. 2(47) of C.P. Act, 2019 on the part of the OP members.

Hence, from the above discussion it is proved that the complainant has able to prove the case beyond all reasonable doubt.

Point No. 4:

As in this case, it is proved that there is deficiency in service on the part of the OP members.

Hence, the complainant is entitled to get relief or compensation as prayed for.

In addition to that we consider that the OP members should be saddled with exemplary cost of   Rs. 10,000/(Ten thousand only) for their deliberate unfair trade practice as well as for the change it brings in the attitude of service provider as not to repeat the same in future. Hence, the OP members are jointly and severally also directed to deposit the said amount with Consumer Legal Aid Accounts, DCDRC, Birbhum.

Thus, all the points are decided in favour of the complainant.

Complaint is sufficiently stamped and proved beyond all reasonable doubts.

Hence, it is,

O R D E R E D,

                            that the instant C.C. Case No. 120/2023 be and same is allowed on contest with cost.

The OP members are jointly and severally directed to refund back the consideration amount of the hand set in question Rs. 18,903/- (Eighteen thousand nine hundred three only) to the complainant. The OP members are jointly and severally directed to pay Rs. 30,000/- (Thirty thousand only) as compensation to the complainant/petitioner.

The OP members are jointly and severally also directed to pay Rs. 5,000/(Five thousand only) as litigation cost to the complainant/petitioner.

 

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The OP members are jointly and severally also directed to pay as exemplary cost of Rs. 10,000/(Ten thousand only) to the Consumer Legal Aid Accounts, DCDRC, Birbhum, Account No. 34041754378, IFSC Code. SBIN0000191, State Bank of India, Suri Branch, so that they must be taught such a good lesson as similar contingency must not recur in future.

The entire decree will be complied by the OP members within 45 (Forty five) days from this date

of order, failing which entire amount shall carry interest @ 9% p.a. till its realization.

If the OP members failed to comply the decree the complainant would be at liberty to put this

order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.