DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday the 29^th day of October 2024

CC.214/2023

Complainant

Jilbin Thomas,

Pttumannil House,

                        Anackampoyil. P.O,

Thiruvambadi Via,

Kozhikode - 673603

Opposite Parties

1.               Flipkart Internet Pvt Ltd,

Building Alyssa,

Begonia & Clove Embassy Tech Village,

Outer Ring Road,

Devarabeesanahalli Village,

Bangalore – 560103

2.               Sane Retail Pvt Ltd,

Warehouse Building Nos, WE-II,

Renaissance Integrated Industrial Area,

Village Vashere, Bhiwandi, Thane,

Mumbai, Maharashtra – 421302

3.               Samsung India Electronics Pvt. Ltd,                                                                                                                                                                                                                                                                                                                                                                           6^th Floor, DLF Centre, Sansad Marg,

New Delhi – 110001

(OP1 By Adv. Sri. M. Sameer Babu,

OP3 By Adv. Sri. Manimangalath Sameer Babu)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 35 of the Consumer Protection Act, 2019.

2. The case of the complainant, in brief, is as follows:

                  The brother of the complainant Sri. Jithin Thomas ordered a new Samsung Galaxy F41 mobile phone for the complainant through flipkart on 10/05/2022 for an amount of Rs. 14,499/-. The complainant got delivery of the product on 14/05/2022 by Ekart Logistics. He paid the amount while delivering the item.

3. But after some months, the device started heating up while using and gradually the issue became worst. Hence the complainant visited the Samsung Customer Service Centre at Thamarassery and entrusted the device for service on 08/05/2023. After 2 hours the service engineer informed that the phone did not have any issue and returned it to him by changing the software.
4. But on the next day,  the complainant could find a heat warning message in the phone and he again contacted the Customer Service Centre. The service engineer informed that the mother board might have become faulty and needed replacement. The complainant then demanded replacement of the mother board under warranty. But the service people stated that the phone was out of warranty as it had expired on 24/08/2022. The complainant then sent them the warranty document and explained that one year had not elapsed since its purchase. Then he was asked to contact the Samsung customer care. But the Samsung support said that the phone had already been in use from 24/08/2021. In fact, he was cheated by the flipkart by delivering a used phone. The complainant then contacted flipkart, but they did not have any proper answer. He was cheated and a fake warranty document was given to him. Hence the complaint claiming compensation of Rs. 2,00,000/- .
5. The 1^st and 3^rd opposite parties have resisted the complaint by filing written version. The second opposite party was set ex-parte.
6. According to the first opposite party, the complainant had ordered Samsung Galaxy F41 mobile phone on 10/05/2022 which was delivered on 14/05/2022. The flipkart platform is an electronic market place model e-commerce platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. The sellers are independent entities. For any act of the seller, the market place e-commerce platform or its operating entity cannot be held liable. The product was ordered by the complainant after agreeing the terms and conditions mentioned in the website of the first opposite party. The first opposite party has not committed any act of omission or commission that could be termed as deficiency of service. The manufacturer alone will be able to provide assistance in case of any warranty or product related issues. There was no unfair trade practice or deficiency of service on the part of the first opposite party. There is no cause of action for the complaint. With the above contentions, the first opposite party prays for dismissal of the complaint.
7. According to the third opposite party, the handset was not directly sold by them to the complainant and no invoice was issued. However, on 08/05/2023, the handset was brought before the service centre by the complainant with complaint of overheating/hanging. The said complaint was duly registered by the job card, but on inspection of the device, it was found that there was no complaint and the device was working fine and hence it was returned to the complainant. Thereafter, the device was never brought to the service centre with any issues. As per the terms of the warranty policy, only  issues arising within the scope of warranty will be repaired free of cost and all the repairs outside the warranty will be done on chargeable basis. There was no unfair trade practice or deficiency of service on the part of the 3^rd opposite party. It is, therefore, prayed to dismiss the complaint with costs.
8. The points that arise for determination in this complaint are;

1. Whether there was any unfair trade and business practice or  deficiency of service on the part of the opposite parties, as alleged?
2. Reliefs and costs.

9. Evidence consists of the oral evidence of PW1 and Exts A1 to A4 on the side of the complainant. No oral evidence was let in by the opposite parties. Ext B1 to B4 were marked. 
10. Heard both sides.
11. Point No.1:-    The complainant has approached this Commission alleging unfair trade and business practice and deficiency of service on the part of the opposite parties. The specific allegation is that on 10/05/2022 a new Samsung Galaxy F41 mobile phone was ordered by the brother of the complainant Sri. Jithin Thomas, for and on behalf of the complainant, through first opposite party flipkart for Rs. 14,499/-. The seller was the second opposite party. The manufacturer of the phone is the third opposite party. The phone was delivered to him on 14/05/2022 and the payment was also made. The grievance of the complainant is that what was delivered was the handset which was already in use from 24/08/2021. The prayer in the complaint is for compensation of Rs. 2,00,000/-.      
12. The brother of the complainant Sri. Jithin Thomas who ordered the product is examined as PW1, who has filed proof affidavit in terms of the averments in the complaint and in support of the claim. Ext A1 is the tax invoice. Ext A1 shows that the warranty is one year from the date of purchase. Ext A2 is the status document regarding the service, Ext A3 is the email communications and Ext A4 series are the CDs. Ext B1 is the copy of the resolution, Ext B2 is the copy of the extract of the terms of the use of the platform ‘flipkart’, Ext B3 is the copy of the resolution and Ext B4 is the acknowledgment of service request.
13. Going by the pleadings, it can be seen that the purchase of the Samsung Galaxy F41 mobile phone by the complainant through flipkart paying an amount of Rs. 14,499/- is not disputed. The product was delivered to him on 14/05/2022. The product  was manufactured by the third opposite party and sold by the second opposite party.
14. The evidence in hand indicates that the grievance of the complainant is true and genuine. Admittedly, the product has one year warranty from the date of purchase. But the evidence indicates that the warranty of the handset got expired on 24/08/2022 whereas the product was delivered to him only on 14/05/2022.   It has come out in evidence that the handset in question was activated on 24/08/2021 and that was the reason why the warranty of the handset got expired on 24/08/2022. So it is crystal clear that what was delivered to the complainant on 14/05/2022 was a handset which was already in use from 24/08/2021 onwards.
15. The second opposite party seller has opted to remain absent and has not filed written version or participated in the proceedings. The first opposite party has no explanation whatsoever  in the matter. The selling and delivering of a pre-activated device is undoubtedly an act of unfair trade practice. The first and second opposite parties are responsible for selling such old product to the complainant. The complainant was not able to enjoy the warranty services because of the unfair trade and business practice indulged by the first and second opposite parties. The third opposite party has no role in the same and as such the third opposite party is in no way responsible.  The complainant is entitled to be compensated adequately by the first and second opposite parties. Considering the entire facts and circumstances, we are of the view that a sum of   Rs. 25,000/- will be reasonable compensation in this case and the first and second opposite parties are jointly and severally liable to pay the same.  The third opposite party is entitled to be exonerated. Point found accordingly.
16. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;
    1. CC No.214/2023 is allowed in part.
    2.  The first and second opposite parties are hereby directed to  pay a sum of  Rs. 25,000/- (Rupees twenty five thousand only) as compensation to the complainant.   
    3. The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 25,000/- shall carry an interest of  9% per annum from the date of this order till actual payment.
    4. No order as to costs.

Pronounced in open Commission on this, the 29^th   day of October, 2024.

Date of Filing:  05.06.2023

                                                      Sd/-                                                Sd/-                                                   Sd/-

                                              PRESIDENT                                    MEMBER                                       MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 - Tax invoice.

Ext A2 - Status document regarding the service.

Ext. A3- Email communications.

Ext. A4 series – CDs.

Exhibits for the Opposite Party

Ext B1 - Copy of the resolution.

Ext B2 – Copy of the extract of the terms of the use of the platform ‘flipkart’.

Ext B3 – Copy of the resolution.

Ext B4 - Acknowledgment of service request.

Witnesses for the Complainant

PW1  -  Jilbin Thomas (Complainant).

Witnesses for the opposite party 

Nil.

                                                     Sd/-                                                Sd/-                                                   Sd/-

                                              PRESIDENT                                    MEMBER                                       MEMBER

True Copy,      

                                                                                                                                               Sd/-

                                                Assistant Registrar.