BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 52 of 2016
Date of Institution : 9.2.2016
Date of Decision : 12.4.2017.
Anand Sharma, aged 36 years, son of Shri Ram Kumar Sharma, resident of H. No.714, Near Canara Bank, Sangwan Chowk, Sirsa, Tehsil and District Sirsa, through General Power of Attorney Sharwan Kumar son of Shri Hukam Chand Saini, resident of opp. Congress Bhawan, Begu Road, Patel Basti, Sirsa, District Sirsa.
……Complainant.
Versus.
1. Flipkart Internet Private Limited, Ozone Manay Tech Park, # 56/18 & 55/09, 7th Floor, Garvebhavipalya, Hosur Road, Banglore- 560 068, through its Manager/ authorized signatory.
2. Motorola Mobility India Private Ltd., 415/2, Mehrauli Gurgaon Road, Sector 14, Gurgaon (Haryana)- 122 001, through its Manager/ authorized signatory.
3. Shri Balaji Communication, Shop No.111, Parijat Complex, First Floor, Near Parijat Chowk, Hisar-125 001, District Hisar, through its Manager/ Incharge.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. S.B.LOHIA…………………………PRESIDENT
SMT. RAJNI GOYAT ………………… MEMBER
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. JBL Garg, Advocate for the complainant.
Sh. A.S. Kalra, Advocate for opposite party no.1.
Opposite parties No.2 & 3 exparte.
ORDER
The case of the complainant, in brief, is that op no.1 is an online shopping website and offers delivery of different types of electrical goods, mobiles, tabs and laptop etc. On 24.3.2015, complainant placed an order for purchase of Moto G (2nd Gen) mobile to op no.1 through internet and op no.1 booked the said order vide order No.DD302405399024042500. The op no.1 supplied the said mobile to complainant through courier vide invoice dated 26.3.2015 for a sum of Rs.9899/- which was received by complainant at his house at Sirsa. The mobile is manufactured by op no.2. The mobile phone bears IMEI Sr. No.353326069848390 and one year warranty was also given. It is further averred that after few days of its use, the mobile used to hang and auto off. On contact with op no.1, he was advised to contact with op no.2 on its customer care and complainant did accordingly and reported the above defect and was given address of op no.3 being care centre of op no.2. The op no.3 on inspection of the said mobile stated that there is software problem and updated the software and stated that now same will work properly. But the said defect remained in the mobile. He again visited the op no.3 and reported the defect whereupon op no.3 made some repairs and stated that now the same is ok, but the mobile did not work. It is further averred that again on 6.1.2016, he visited the op no.3 and reported the same defect whereupon op no.3 updated the software and assured that mobile will work properly but mobile still hangs and starts ringing of its own. Now the mobile is lying with the complainant in its defective condition. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed reply to the effect that present complaint is not maintainable against op no.1 because role of answering op is that of intermediary only that is to provide an online platform and facilitate the entire transaction of sale and purchase of goods by the respective sellers and buyers on its website. The answering op is not engaged in selling of any goods on its own. It is only the liability of manufacturer or its service centre to provide after sales services.
3. Opposite party no.3 initially appeared and filed written statement taking certain preliminary objections. On merits, it is specifically denied that complainant ever contacted the ops no.1 & 2 and that they further forwarded the number of answering op to the complainant at any point of time. It is further submitted that complainant never visited the answering op at any point of time with the alleged complaint as per the company and service centre record. He has not shown his mobile to the answering op nor there is any such entry in this regard. Had he ever visited the answering op then he must have been issued job sheet by the answering op, but there is no such job sheet available with the complainant. It is further submitted that answering op has surrendered his authorized service centre with the Motorola company and is not the service centre of it. All other contents of complaint have also been denied.
4. It is pertinent to mention here that after filing written statement on behalf of op no.3, none appeared on its behalf and therefore, op no.3 was proceeded against exparte.
5. Notice issued to op no.2 received back with the report of refusal and none appeared on behalf of op no.2. As such, op no.2 was proceeded against exparte.
6. Learned counsel for complainant produced affidavit of Sharwan Kumar General Power of attorney of complainant Ex.C1, attested copy of retail invoice/ bill Ex.C2, attested copy of general power of attorney Ex.C3, copy of driving licence of complainant Ex.C4. On the other hand, ld. counsel for op no.1 produced affidavit of Mr. Jatin Gulati Ex.R1
7. We have heard learned counsel for the parties and have perused the case file carefully.
8. It is established on record that complainant purchased the mobile in question through online website of opposite party no.1 and the said mobile phone is manufactured by opposite party no.2. The said mobile was delivered to the complainant at his home at Sirsa as is evident from copy of retail invoice/ bill dated 26.3.2015 Ex.C2 and the cost of the mobile was Rs.9899/-. The complainant is alleging defects in the mobile in question during the warranty period of one year of the same. According to the complainant after few days of its use, the mobile used to hang and auto off and he visited the opposite party no.3 i.e. Service Centre of op no.2 with the said problem in the mobile for three times and on all three occasions the op no.3 made some repairs and updated software of the mobile but despite that the mobile did not work properly and it still hangs and starts ringing of its own. The op no.3 has taken a stand that the complainant never visited to it any point of time with the alleged complaint and there is no such job sheet available with the complainant but we are not convinced with this plea because it is not the fault of complainant that he has no job sheet with him because the mobile was returned to him after some repairs for three times by op no.3. Moreover, the op no.3 has not substantiated its plea with any reliable and cogent evidence by producing on file book of job sheets of the relevant period to show that there is no any job sheet in the name of complainant. After filing its written version, the op no.3 opted to be proceeded against exparte. It is believable that op no.3 has delivered the mobile phone on the same dates after some repairs/ updating of software when the complainant approached it with defect in the mobile and as such no job sheet was issued by the op no.3 to the complainant. The opposite party no.2 i.e. manufacturer of the mobile in question has also not appeared before this Forum and opted to be proceeded against exparte. In these circumstances, the plea of the complainant that mobile in question is having defect is not disproved and therefore, the version of complainant is to be relied upon. So, we are of the considered view that opposite parties No.2 & 3 are liable to replace the mobile phone with a new one. However, opposite party no.1 cannot be held negligent in any manner because it is only running an online website for booking the products of other ops and mobile in question ordered by complainant was successfully supplied to him. The version of op no.3 that it has surrendered the authorized service centre to the company has no relevance because at the relevant time it was having service centre of the company and therefore cannot escape from its liability and is jointly and severally liable for redressal of grievance of the complainant.
9. Keeping in view of our above discussion, we accept the present complaint qua opposite parties No.2 & 3 and direct them to replace the mobile in question with a new one of same description or with a mobile of equivalent value or to refund Rs.9899/- i.e. cost of the mobile to the complainant within one month from the date of receipt of copy of this order, failing which the complainant will be entitled to interest on the amount of Rs.9899/- at the rate of @9% per annum from the date of order till actual compliance/ payment. The ops No.2 & 3 are held jointly and severally liable to comply this order. A copy of this order be supplied to the parties as per rules. File be consigned to record room.
Announced in open Forum. President,
Dated:12.4.2017. Member Member District Consumer Disputes
Redressal Forum, Sirsa.
