MRS. SUSMITA MISHRA, PRESIDENT (I/C):-
Complainant namely Mr.Ullas Behera has filed the present Consumer Complainant U/Section 35 of the Consumer Protection Act-2019 against the above named OP No.1 (Flipkart Internet Private Limited, Bengalure,Karnataka) through e-dakhil portal(Consumer Commission Online-Application Portal,Kendrapara) vide Ref No. A23110015447 on 28.11.2024 and subsequently impleaded the manufacture as a party as OP No.2 (Samsung India Electronics Pvt.Ltd.,New Deahi) vide order No. 08 dtd.18.02.2024 alleging deficiency in service and unfair trade practices by the OPs , caused mental agony and harassment to the Complainant due to non-replacement of defective Mobile phone.
Brief facts of the Case:
The brief facts of the case is that, the Complainant ordered a Mobile Phone (Samsung S21E) vide order ID No. OD428946598850627100 from OPs, which was delivered on 22.08.2023. However, upon receiving the order of the Product he found that the above said Mobile phone was a defective item /product .Immediately, the Complainant raised a complain to the OPs and as per instructions of the OP No.1 , the Complainant raised a complainant before OP No.2-SAMSUNG Service Centre. Again according to the Complainant, the Complainant had lodged a complaint to the OP. As per guideline of the concerned Service Centre, but they did not take return or replacement of the said defective Mobile phone. But unfortunately, after several request /approach through telephonic conversion as well as electronic mail to the OPs to replace the said mobile Phone, but invain. Finally, the learned Advocate on behalf of the Complainant sent a legal notice to the OPs on 10.09.2023, but the OPs did not provide any reply to the Complainant .So the Op. had miserably failed to provide right and proper service despite the Complainant has paid the full amount of Rs.30,068/- in advance as consideration amount to the OPs, caused mental agony and harassment which amount to deficiency in-service and unfair trade practice. Hence this consumer complaint was filed by the Complainant against the OPs and prayed that necessary directions may kindly be issue to the OPs to take necessary steps to refund the product amount of Rs.30,068/- (Rupees thirty thousand & Sixty eight)only alongwith the amount of Rs. 70,000/-(Seventy thousand) only towards compensation to the Complainant and also to pay the cost of litigation and such other reliefs/orders may deem fit and proper in the interest of Justice equity and good conscience.
2) Upon notice, the OP No.1 (Flipkart Internet Pvt.Ltd, Bengulure,Karnataka) contested the complaint by filing written reply along with preliminary objection and parawise reply, wherein it was denied all the allegations, contention submission and statement of the complaint petition.
In response, the OP No.1 (Flipkart) argued that if operates solely as on intermediary through its platform and facilitates transactions between independent sellers(Third party) and consumers., If claimed immunity under Section 79 of the Information Technology Act,2000 and Section 6(1) of the Consumer Protection ( F-Commerce.) Rules -2020 arguing that it cannot be held liable for the actions or disputes arising from transactions conducted between independent third [party sellers and Consumers. Further it is argued by the OP No.1 (Flipkart) that the product in the present Complaint was purchased from the Third Party Seller ( i.e., CIGFIL Limited) and the same is evident from the copy of “ tax invoice as attached by the complainant himself. Further the delivery of the products was done under Open box delivery and in open box delivery , the wise master opened the package in front of the complainant at the time of delivery. Both outside as well as the brand packing was opened and shown to complainant and ensures that the Complainant only received what he ordered. Further Flikart argued that when the complainant raised his grievance, the answering (OP No.1) duly requested the Complainant to contact the manufacture as the product of the complainant was under the manufacturing warranty. It is further argued by the OP No.1 that the product of the complainant was covered under the manufacturing warranty clause as provided by the manufacturer and the sole responsibility to provide after sale services under the manufacturing warranty lies with the manufacture and the Authorized Service Centre. It is also submitted by the OP No.1 that the answering OP (i.e. OP No.1) has not received legal notice of any sort from the Complainant .Thus , it is clear that any grievance which the complainant has is only against the manufacturer and its Authorized Service Centre as this product was under manufacturing warranty. Thus there is no deficiency in service and unfair trade practice on the part of the answering OP. and is not liable to provide any replacement warranty of any sort or pay any amount as refund, interest, compensation cost of litigation or any other relief to the complainant. Hence, the present Consumer Complaints filed by the complainant is ought to be dismissed against the answering OP No.1 (i.e. Flipkart) with exemplary costs.
3. Upon notice, the Op No.2 (Samsung India Electronics Private limited, New Delhi) appeared through counsel and filed written statement along with preliminary objections and submitting that the OP No.2 is the manufacturer of the product and assures to render free service as agreed under the warranty terms which the warranty period. On receipt of a claim on 24.08.2023 through /by the Authorized Service Centre on the alleged complaint of “Auto Restart, No Power on, Logo handling” the same is registered and after diagnosis ,the Mobile was returned to the complainant with the remark DOA(Dead on Arrival) and after receiving back the Mobile Complaint consented on the Job Card. It is further submitted by the OP No.2 in his written version that, the alleged Mobile was purchased from OP No.1 and for the complaint is required to avail replacement of the product by returning the product with a DOA certificate issued to the complainant, if applicable in his case. As a manufacturer assures to render free service during the warranty in force by replacing minor parts and never assures replacement of the entire product. This OP No.2 is ready to repair the mobile on due approval of the complaint. The alleged complaint is one governed by the limited terms of the contract of warranty for which reliefs claimed beyond said terms are not maintainable against the OP No. 2. Further is submitted by the OP No.2 in his written version that the complaint is not supported with report of experts from authorized laboratory establishing manufacturing defects in the product. Under such circumstances there is no deficiency in service by the OP No.2 and such the complaint is liable to be dismissed.
4.The Complainant has tendered into evidence affidavit along with other documents as Clause-1 to Clause9. Learned Counsel for the OP No.1 has tendered into evidence affidavit of Ms.Sanchi Chhabra (Authorized signatory of OP No.1) but not produced any documents to support her case. On the other hand, learned counsel for the OP No.2 has tendered into evidence affidavit of Sri Sandeep Sahywani (Authorized signatory of OP No.2 along with only one document of warranty card from Samsungs vide GH68-43534P,Rev,1.5 dtd.13.11.2019 as Annexure R-2/1.Written argument filed by the OP No.1 only.
5. Complainant has argued that he had ordered a product like Mobile phone (Samsung S21E) FE SG (Okine Green)vide order ID No OD428946598850627100/128GB dtd.21.08.2023 through delivery by Flipkart online platform vide invoice No. # FAJHT 32400148911/Dtd.21.08.2023 and Invoice No. #BFFKA 24004549448.Dtd.22.08.2023 respectively for a sum of Rs.30,068.00 and after Handling fees of Rs.3/- only along with one year ( 1 year) Manufacturer warranty for device and 6 months Manufacturer warranty for In/Box Accounts, as it is Annexure –C-1 & C-2.It is the admitted fact that at the item was “Open Box Delivery” but after the delivery the Complainant is get to know that the phone was a defective item. Immediately the Complainant raised a complain to OP No.1 and after instructions of OP No.1 the complainant raised a complain before OP No.2 and request for replace the above said Mobile phone but in vain.
In this regard, the OP No.-1 submitted that the above said product in the present of Complainant was purchased from the Third Party seller(i.e. CIGFIL Limited)and the delivery of the product was done under “Open Box Delivery” for which the wish master opened the package in front of the complainant at the time of e delivery, Both outside as well as the brand packing was opened and shown to complainant and ensures that Complainant only received what he ordered. The present complaint is only between the Complainant and manufacture as well as its Authorized Service Centre as the product was under manufacturing warrant .Hence the relief claimed under the present complainant is not maintainable against this OP.
On the other hand, the OP No.2 is admitted in his written reply that the Complainant had purchased the Mobile handset through an Online platform Service providers” Flipkart Internet Pvt.ltd., on Flipkart Platform” and received the said Mobile handset with invoice and warranty card. The case of the Complaint is that he received ant Open Box delivery of the Mobile and found the same has a manufacturing defect. After receipt of claim for service on 24.,08.2024 and after diagnosis, the alleged mobile was returned to the Complainant with the remark “DOA” (Dead on Arrival). As result , DOA certificate was issued vide No.4377053578/dtd.24.08.2023, where under the seal mobile is required to be return with the certificate to the produce seller for taking appropriate decision at their end as per the terms and conditions of the Agreement between them, It is further submitted by the OP No.2 that the alleged Mobile handset claimed to be purchased on 22.08.2021. This 1st year warranty on the product expires on 22.08.2022. Compainant submitted claiming services on 04.08.2023, and availing paid services through technical person deputed through OP No.1.The manufacturer assures to render free services during warranty in time by replacing free minor parts and never assures replacement of the entire product. Further it is submitted by the OP No.2 that the product return policy under DOA, i.e. as under and specifically mentioned in the certificate issued by the manufacture to the complainant.
6.We have heard the arguments from the Complainant as well as OP No.1 (Flipkart) and gone through the case record carefully and documents available therein.
It is admitted fact that the Complainant had ordered the above said Mobile from Samsung (OP No.2) through the OP No.1 (Flipkart) on 22.08.2023 vide “ Open Box Delivery System”
It is admitted by the OP-2 that the complaint was lodged before Authorized Service Centre of Samsung India Electronics Pvt.Ltd. (OP-2) and issuance of a certificate under DOA is admitted facts.
But in the instant case, the O.P./-1 and OP-2 had not produces any relevant documents like DOA certificate and Job card etc. except one copy of Warranty card (Warranty valid only for India) vide India HHP Warranty GH68-43534P Rev,1.5.dtd.13.11.20917 by the Op No.2 specifically Para-4 and Para-8 of the written reply by the O.P.-2 are contradictory to each other. It is our considered view that the OPs have miserably failed to establish their case in their support and have not filed a single scrap of paper to disprove the case of the Complainant and on the contrary the Complainant has filed all the relevant documents in support of his case (Annexure C-1 to C-9 and the plea of the OP-1 that OP-1 is only online platform available to the buyers and sellers of the product and has no role to play supply of the product. But the said plea is not acceptable as the perusal of documents shows that the payment of Rs.30,000/- has been sent to the account of the OP-1 and received by the CIGFIL Limited. As such OP-1 cannot escape from its liability by taking shelter of plea of only provider/Intermediary of Online Market place services. So , we are of the opinion that, the OP-1 and OP-2 have committed gross negligence , deficiency in service and adopted unfair trade practices by not replacing the new Mobile set instead of defective Mobile set to the complainant moreover the OPs have already received the consideration amount of Rs.30,068/- ( i.e. the cost of the above said Samsung Mobile Set) from the complainant and as such they are jointly and severally liable to compensate the Complainant for any manufacturing defects during the warranty period.
O R D E R
In the light of above facts and circumstances, we direct the OPs who are jointly and severally liable to refund of Rs.30,068/- alongwith compensation of Rs.10,000/- to the Complainant within 45 days from the date of receipt of this order. Further, the Ops are also directed to pay Rs.5,000/- towards the cost of litigation to the Complainant and the above said amount shall be paid to the Complainant by both the Ops in two equal halves, failing which the Complainant is at liberty to take appropriate steps as per the provisions of the Consumer Protection Act-2019.
Therefore, the present Consumer Complaint bearing C.C.Case No 182/2023 is hereby allowed and accordingly disposed off.
Issue extract of the copy to this order to the parties for compliance.
Order pronounced in the open Commission on this 24th day of September-2024.
I, agree,
SD/- SD/-
MEMBER PRESIDENT(I/C)
