BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.209/2015.
Date of instt. 15.9.2015.
Date of Decision: 03.06.2016.
Jarnail Singh son of Sh. Ishwar Singh, resident of Fatehabad, Tehsil & District Fatehabad posted as System Assistant in the office of District & Sessions Judge, Fatehabad.
..Complainant.
Versus
1. Flipkart Internet Private Limited, Ozone Manay Tech Park, #56/18 & 55/09, 7th Floor, Garvebhavipalya, Hosur Road, Bangalore- 560068, Karnataka, India.
2. Xiaomi Technology India Pvt Ltd Indiqube, 1st Floor, Marathahalli, ORR, Kadubesanahalli, Bangalore 560103, India through its Proprietor.
3. WS Retail Services Pvt. Ltd., No.42/1 & 43, Kacherakanahalli village, Jadigenahalli Hobli Hoskote Taluk, Bangalore, Karnataka, India-5602067
4. HCL Touch- Janakpuri, G-5(II) A, Shop No.5/126 & 5/127, Janak Place, District Centre, Janakpuri, New Delhi.
..Opposite parties.
Complaint under Section 12 of Consumer Protection Act.
Before Sh. Raghbir Singh, President.
Sh. R.S. Panghal, Member.
Present : Complainant in person.
Sh. Yogesh Gupta, Advocate for opposite parties No.1 & 3.
Sh. D.P.Jakhal, Advocate for opposite party no.4.
Opposite party no.2 already exparte.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties.
2. Briefly stated the facts of the present complaint are that on 2.12.2014 complainant had purchased a mobile MI marka Redmi 3G bearing EMI No.865291020351564 and 865291020351572 through online through opposite party no.1 vide bill No.BLR WFLD20141200096094 dated 3.12.2014. The above said mobile is manufactured by opposite party no.2 and opposite party no.4 is customer care centre. At the time of purchase of said mobile, the opposite party no.2 had given warranty one year warranty of the same. However, technical defect occurred in the headphone jack and display of the mobile immediately after its purchase. Upon this, the complainant visited opposite party no.4 i.e. service centre of opposite party no.2 situated at New Delhi for either replacement or repair and opposite party no.4 deposited the mobile with it on 8.8.2015 and asked to come on 26.8.2015 for taking mobile. Thereafter, service centre handed over the mobile to him after one month after changing its hardware with the hardware of some old mobile. The mother board of the mobile in question is Chinese and does not support the software of India and its camera is of low quality. It is further averred that thereafter, complainant met opposite party no.4 on 5.9.2015 and told about the defects in the mobile upon which opposite party no.4 disclosed that mobile has been received from the company and they cannot do anything. Even the behavior of the opposite party no.4 at that time was not proper. The opposite party no.2 is neither giving any satisfactory reply to the complainant nor his grievance has been redressed and the complainant has to suffer financial, physical as well as mental agony. The opposite party no.2 has not repaired the mobile properly within warranty period and has changed its parts with parts of old mobile and is having inherent defects. The complainant is entitled either for replacement of the mobile in question or for refund of the price of the same besides Rs.20,000/- as compensation for harassment and litigation expenses. Hence, this complaint.
3. On presentation of the complaint, notice of the same was issued to the opposite parties.
4. Opposite party no.1 appeared and resisted the complaint by filing reply raising preliminary objections that complainant has suppressed the true and material facts from this Forum and that there is no deficiency in service on the part of opposite party no.1. It has been submitted that opposite party no.1 provides online marketplace/ platform and other mechanism/ services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods between respective buyers and sellers. The business of op no.1 falls within the definition of an “intermediary” under Section 2 (1) (w) of the Information Technology Act, 2000. It has been further submitted that complainant does not fall under the category of consumer of op no.1 under the provisions of Consumer Protection Act and op no.1 has been wrongly arrayed as a party. There is no privity of contract between the complainant and op no.1, therefore, complaint is not maintainable either in law or on facts and is liable to dismissed against opposite party no.1.
5. Opposite party no.3 in its separate reply has asserted in preliminary submissions that complainant has suppressed true and material facts from this Forum. The opposite party no.3 is a registered seller on the website “flipkart.com” and sells products of other manufacturers through the website. The op no.3 has acquired good market reputation for its range of products offered and for its exceptional customer support. It has been further asserted that op no.3 is not engaged in selling of any goods manufactured or produced by its own. As a reseller, involvement of op no.3 in the entire transaction is limited only to selling the products of various manufacturers and in the present complaint, the manufacturer is op no.2. No cause of action lies against op no.3 in the present case. On merits, it has been submitted that role of op no.3 comes to the end as soon as the product ordered is delivered in good condition at the address provided by the consumer. In the present case, the op no.3 has delivered the product Redmi 3G mobile in a sealed box to the complainant in good condition and within the time specified in the order. It is the sole duty of the manufacturer and their authorized service centre to remove the defects, if any to the entire satisfaction of the customer. With these submissions, prayer for dismissal of complaint has been made.
6. Opposite party no.4 in its reply resisted the complaint taking preliminary objections that complainant has no cause of action; the complainant does not fall under the definition of Consumer of answering op; complaint is bad for mis joinder of necessary parties; this Forum has no jurisdiction to entertain and try the present complaint because no transaction/ activity took place in between the complainant and answering op in District Fatehabad; that complainant has not come to this Forum with clean hands; that complaint is not maintainable; complainant has no locus standi and that complainant is estopped by his own act and conduct to file the present complaint. On merits, it has been submitted that the mobile was purchased on 3.12.2014 and worked perfectly till 8.8.2015 i.e. for a period of nine months after which the first complaint was received and the same was resolved to the satisfaction of the complainant. The mobile was received in the office of op no.4 on 8.8.2015 with the complaint of white dots on display and hands free jack issue and the same was repaired by the answering op to the complete satisfaction of the mobile holder. The complaint was duly solved and no amount was received by the answering op in respect of repair of the mobile. It has been further submitted that complainant has made false pleadings as he has not mentioned the specific software which is not supported by the mobile, further original software of the mobile gets corrupted due to viruses and malwares during downloading. The software/application other than inbuild in the mobile is out of the scope of the warranty/ repair terms and conditions. The answering op had replaced only PCB, which was provided by op no.2 as originally manufactured. No complaint of any kind has ever been received in respect of inserting the Chinese mother board and other parts as alleged. The complainant has no where mentioned that who misbehaved with him. Other contents of the complaint have also been denied and controverted and prayer for dismissal of the complaint has been made.
7. The opposite party no.2 i.e. Manufacturer did not appear despite service through registered cover and was proceeded against exparte.
8. The complainant in his evidence has tendered his affidavit as Ex.CW1 and documents as Annexures C2 and C3. On the other hand, opposite party no.1 has tendered affidavit as Annexure R1. OP no.3 tendered affidavit as Annexure R2 and op no.4 tendered affidavit as Annexure RW1 and terms and conditions as Annexure A.
9. We have heard complainant as well as learned counsel for the opposite parties No.1, 3 & 4 and have perused the case file carefully.
10. There is no dispute that complainant had purchased the mobile MI marka Redmi 3G through online from opposite party no.3 through opposite party no.1 for a sum of Rs.8999/-. The order for purchase of the said mobile was made by complainant on 2.12.2014 and mobile in question was delivered to him at his address at Fatehabad on 3.12.2014. This fact is also evident from invoice dated 3.12.2014 placed on file by the complainant as Annexure C1. The opposite party no.2 is manufacturer of the mobile in question and opposite party no.4 is customer care centre. The complainant in support of his averments has tendered his affidavit Ex.CW1 wherein he has testified all the facts so set out by him in his complaint. According to the complainant, the mobile in question was having warranty of one year, however, after sometime of its purchase, some technical defect regarding headphone jack and display occurred in the mobile set. The complainant has also placed on file copy of job sheet dated 8.8.2015 as Annexure C2. The said job sheet dated 8.8.2015 reveals that problem regarding white dots on display occurred and hand free jack of mobile was not working properly within warranty period of one year and the complainant had to approach opposite party no.4 i.e. service centre of opposite party no.2 for removal of above said defects at Delhi. The mobile in question was deposited by opposite party no.4 in its office and complainant was asked to come to take back the mobile on 26.8.2015. However, the complainant was not satisfied with the repair work. According to the complainant, service centre handed over the mobile to him after one month after changing its hardware with the hardware of some old mobile. The mother board of the mobile in question is Chinese and does not support the software of India and quality of its camera has become inferior after repair. The complainant again visited Delhi and met opposite party no.4 on 5.9.2015 and told about the defects in the mobile upon which opposite party no.4 disclosed that mobile has been received from the company and they cannot do anything. Although, the opposite party no.4 has averred that original software of the mobile gets corrupted due to virsus and malwares during downloading and the software/ application other than inbuild in the mobile is out of the scope of the warranty/ repair terms and conditions but there is no such term and condition in the terms and conditions as annexed by the opposite party no.4. Moreover, the complainant is alleging change of hardware of the mobile in question with hardware of an old mobile and there is nothing on file to show that hardware has not been changed. The opposite party no.2 i.e. the manufacturer of the mobile in question has not bothered to appear before this Forum rather opted to be proceeded exparte. The complainant is resident of Fatehabad and had to visit four times to Delhi at the office of opposite party no.4 i.e. service centre of opposite party no.2 for repair of the mobile in question but despite that his grievances could not be resolved by the opposite parties No.2 & 4. Since the opposite party no.2 i.e. manufacturer has not contested the present complaint despite notice and opposite party no.4 has not rebutted the averment of the complainant that on 5.9.2015 also he approached the service centre and made aware about the defects in the mobile despite repair, therefore, a presumption is to be drawn that the mobile set is having manufacturing defect and the complainant has to suffer financial and physical loss as well as mental harassment for visiting several times to the service centre at Delhi. The complainant has been able to prove his case. The contention of the opposite party no.4 that mobile worked properly till 8.8.2015 i.e. for a period of nine months after which the first complaint was received and same was resolved to the satisfaction of the complainant has no substance. As mentioned above the complainant resident of Fatehabad i.e. about 200 Kms. away from Delhi and it is the case of the complainant that mobile phone started giving above said problems since very beginning and the complainant instead of getting repair the same from outside preferred visiting Delhi at the authorized service centre i.e. opposite party no.4 for repair at a distance of 200 Kms. and therefore, it cannot be said that defects occurred in the mobile after nine months. Even after said visit of the complainant to Delhi at the authorized service centre, problems were not rectified properly and he has to visit again at Delhi just within a period of 8/10 days i.e. on 5.9.2015 with the above said problems and also about the inferior quality of camera despite repair but at that time the opposite party no.4 showed their helplessness by saying that mobile has been received from company and they cannot do anything and as mentioned above the manufacturer has not contested the present complaint which could rule out that mobile is not having any manufacturing defect. The opposite parties No.2 and 4 have caused great deficiency in service as well as financial and physical harassment to the complainant. However, complainant has not alleged any deficiency in service on the part of opposite parties No.1 & 3 through whom he purchased the mobile set in question through online website.
11. Keeping in view the facts and circumstances of the present case, we are of the view that complainant is entitled to refund of the price of the mobile in question as prayed for. In this regard, we are fortified with the observations in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others 2014(1)CLT588 wherein Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”.
12. Thus, as sequel to our above discussion, we allow the present complaint against the opposite parties No.2 and 4 and direct them jointly and severally to refund the price of the mobile in question i.e. Rs.8999/- to the complainant within a period of one month from the receipt of copy of this order. However, the opposite parties No.2 and 4 will collect the mobile in question from the complainant. We also direct the opposite parties No.2 & 4 to pay a compensation of Rs.5,000/- in lump sum to the complainant for harassment and mental agony etc. This order should be complied within a period of one month, failing which the above said amount of Rs.8999/- will carry interest @9% per annum from the date of order till actual realization and the complainant will be at liberty to initiate legal action against the opposite parties No.2 & 4. File be consigned to the record after due compliance. Copy of this order be communicated to the parties free of costs.
Announced in open Forum:
Dt.03.06.2016. (Raghbir Singh)
President,
District Consumer Disputes Redressal Forum, Fatehabad.
( R.S.Panghal)
Member
