Haryana

Karnal

CC/33/2020

Mukesh Mittal - Complainant(s)

Versus

Flipkart Internet Private Limited - Opp.Party(s)

Anuj Gupta

27 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.33 of 2020

                                                        Date of instt.15.01.2020

                                                        Date of Decision: 27.08.2024

 

Mukesh Mittal son of Shri Dayal Mittal, resident of shop no.82, New Grain Market, Gharaunda, Tehsil Gharaunda, District Karnal.

 

                                                                        …….Complainant.

                                              Versus

 

1. Flipkart Internet Pvt. Ltd. Vaishnavi Summit Ground floor, 7^th main, 80’ Road 3^rd Block, Koramangala Industrial Layout, Banaglore 560034, Karnatak, India office Phone no.0124-6130000 through its authorized representative.
2. Consulting Room Pvt. Ltd. registered office at House no.37/3, Old Rajender Nagar, near Water Tank New Delhi-110060.
3. Cloudwalker Streaming Technologies Pvt. Ltd. 504-505, Business Suite 9, Santacruz West, SV Road, Mumbai-400054 (Maharashtra) India.

                                                                  …..Opposite Parties

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

     Ms. Sarvjeet Kaur…..Member

 

 Argued by: Shri Anuj Gupta, counsel for the complainant.

                    Shri Dheeraj Sachdeva, counsel for the OP no.1.

                    Shri Amit Sachdeva, counsel for the OP no.2.

                    Shri Vishal Kundi, counsel for the OP no.3.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant wanted to purchase a Smart LED TV and placed an order for the same to the OP no.1, which is reknowned online shopping portal, for a Smart LED TV (80cm. 32 inch), which was manufactured by the OP no.3 and sold/shipped by the OP no.2 on 15.01.2018, vide invoice no.FAAAVMI800292326 and paid Rs.12,499/- on 14.01.2018 through online payment from his bank account. At the time of purchasing of the said LED, it was having two years Cloud walker warranty. The abovesaid LED TV was not working properly and there were Lining problem relating to the screen of the TV and after checking, it revealed that there was some problem in the panel of the said TV and the complainant made a complaint to the OP no.3 on 09.10.2019 through email regarding the said problem and in reply to the said email, the OP no.3 replied through email that the TV of cloudwalker comes with a default warranty of one year and it was also replied that the complainant has received misprinted invoice from the seller. The complainant has purchased the said TV only after seeing the warranty of two years. Thereafter, when OP no.3 forwarded the complaint of the complainant to OP no.1 and the complainant also approached the OP no.1 through email regarding the issue then it was replied by the OP no.1 that the problem of the complainant will be resolved upto 13.10.2019, but till date nothing has been done in this regard by the OPs. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

 2.            On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that OP provides an online market place platform/technology and /or other mechanism/service 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 mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances, electronics etc. It is further pleaded that said Flipkart platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. It is further pleaded that sellers are separate entities being controlled and managed by different persons/stakeholders. The OP does not directly or indirectly sell any products on the flipkart platform. Rather all the products on the flipkart platform are sold by third party sellers, who avail of the online marketplace services provided by the OP, on terms decided by the respective sellers only. In the present case, it can be evidenced that the actual seller of the product is a third-party seller  i.e. OP no.2. The grievance of the complainant is with respect to the alleged defects in the goods and after sale services provided by the manufacturer i.e. OP no.3 and/or the service centre engaged by the manufacturer and/or the Service Centre engaged by the Manufacturer under Manufacturer’s Warranty clause not the OP.  The complainant has wrongly arrayed the OP in the present complaint. The complainant himself admitted in his complaint that the said product is having two years (cloudwalker) manufacturing warranty.  It is further submitted that after using the said LED TV for an about 22 months the complainant found some problem in the panel of the said TV and the complainant made a complaint to the OP no.3 for his grievance, which clearly show that the complainant was aware and full knowledge of the fact that the grievance of the complainant is only against the manufacturer i.e. OP no.3 and the service centre for not providing after sales service. It is further pleaded that the replacement or exchange is only provided by the manufacturer of the product and not the OP. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its written version raising preliminary objections with regard to maintainability and concealment of true and material facts.  On merits, it is pleaded that OP is carrying on the business of sale of goods manufactured/produced by others. The OP is a registered seller on the website “Flipkart.com” and sells product of other manufacturers, traders etc. The OP have a separate distinct identity from that of the manufacturer of the product i.e. Cloudwalker Streaming Technologies Pvt. Ltd. and there is no relation of Principal and agent between Cloudwalker and OP. It is further pleaded that the products sold by the OP carries manufacturer’s warranty. As a reseller, involvement of OP in the entire transaction is limited only to selling the products of various manufacturers and in the present complaint, the manufacturer is OP no.3. The liability to provide after sale services does not lie upon the OP as the OP is neither the manufacturer nor the service centre engaged by the manufacturer and hence no cause of action lies against the OP.  Thus, it is submitted that the present complaint should have been only against the manufacturer and the service centre appointed by the manufacturer and the complainant has been wrongly arrayed the OP in the present complaint. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.3 in his reply stated that the product/LED TV of the complainant is under one year warranty and this fact is duly informed to him earlier as well.  The complainant is well aware that the invoice generated by the OP no.1 is misprinted and wrongly mentions the product warranty to be two years. Infact, as per warranty card provided with the product the warranty period has  been mentioned as one year. OP no.3 was willing to provide service and repair of the product on payment basis beyond the warranty period but the same was declined by the complainant. It is further pleaded that payment if any was paid by the complainant to OP no.1 and not OP no.3 and the invoice was also issued by the OP no.1. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Learned counsel for the OP no.1 has tendered into evidence affidavit of complainant Ex.CW1/A, copy of invoice dated 15.01.2018 Ex.C1, copies of emails Ex.C2 to Ex.C4 and closed the evidence on 11.07.2023 by suffering separate statement.

7.             Learned counsels for the OPs no.1 and 2 has suffered a statement that written statement filed by the OPs no.1 and 2 be read as part and parcel of evidence on behalf of OPs no.1 and 2.

8.             Learned counsel for the OP no.3 has tendered into evidence affidavit of Jagdish Raj Puruthi, Director Ex.OP3, copy of  email dated 09.10.2019 to flipkart Ex.OP3/A, copy of manufacturer warranty card Ex.OP3/B, copies of emails dated 09.10.2019, 10.10.2019, 21.11.2019 Ex.OP3/c to Ex.OP3/e, copy of tax invoice Ex.OP3/f and closed the evidence on18.03.2024 by suffering separate statement.

9.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.           Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that complainant purchased LED TV amounting to Rs.12,499/-. OP no.1 has given warranty of two years for the said LED TV.  From the very beginning, the abovesaid LED TV was not working properly and there were Lining problem in the screen. The complainant made several complaints to the OPs for rectification of the defect of the LED TV but OPs did not remove the defect. Thus, there is deficiency in service and unfair trade practice on the part of the OPs. Due to this act and conduct of OPs, complainant has suffered lot of harassment and lastly prayed for allowing the complaint.

11.           Per contra, learned counsel for the OP no.1 and 2, while reiterating the contents of written version, has vehemently argued that the grievance of the complainant is with regard to the defects in the product provided by manufacturer i.e. OP no.3. There is no role with regard to manufacturing defect in the LED TV. The liability of refund/replacement of the product is with the seller or manufacturer and not with the OPs. They further argued that complainant himself admitted that there is manufacturing defect in the LED TV.  So, manufacturer is liable to redress the grievance of complainant and lastly prayed for dismissal of the complaint qua OPs no.1 and 2.

12.           Learned counsel for the OP no.3, while reiterating the contents of written version, has vehemently argued that LED TV is having only one year warranty. Complainant pointed out his grievance after expiry of warranty period.  Hence, OP is not liable for any deficiency beyond the warranty period and lastly prayed for dismissal of the complaint.

13.           We have duly considered the rival contentions of the parties.

14.           On 15.01.2018, the complainant purchased a LED TV amounting to Rs.12,499/- from the website of OP no.1. OP no.3 has alleged that the LED has one year warranty and the defect occurred in the LED after warranty period. On the other hand, complainant has alleged that LED has two years warranty. The onus to prove his version was relied upon the complainant. To prove his version, complainant has placed on file copy of Tax invoice Ex.C1 dated 15.01.2018. On perusal of the said Tax Invoice, it has been proved on record that the LED was having two years warranty not one year as alleged by the OP. Hence the plea taken by the OP is having no force.

15.           Complainant has alleged that LED TV in question is not working properly from the very beginning of its purchase there were lining problem in the screen of the TV. The onus to prove his version was also relied upon the complainant. To prove his version complainant has placed on file copies of copies of emails Ex.C2 to Ex.C4. It has been proved from the said emails the LED TV was having manufacturing defect from the very beginning and complainant approached the OPs several times to rectify the defect during the warranty period.  It is the duty of the OP either to repair the LED TV in question during warranty period or to replace the same but OPs did not do so. Thus, the act of the OP no.3 (being manufacturer) amounts to deficiency in service and unfair trade practice  

16.           During the course of arguments, learned counsel for the complainant argued that complainant has purchased new LED, so he wants to refund the cost of the LED.       

17.           As per the invoice Ex.C1, the complainant had purchased LED in question for an amount of Rs.12,499/-, hence, the complainant is entitled for refund of the said amount alongwith compensation for mental agony and harassment and litigation expenses, etc.

18.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP no.3 (being manufacturer) to refund the amount of Rs.12,499/- to the complainant.  We further direct the OP no.3 to pay Rs.5,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The complainant is also directed to handover the LED in question to the OPs. The complaint qua OPs no.1 and 2 stands dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 27.08.2024   

                                                              President,

                                                 District Consumer Disputes

                                                 Redressal Commission, Karnal.

 

                        (Sarvjeet Kaur)

                            Member