Complaint filed on: 30-03-2016                                                      Disposed on: 25-01-2017

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.53/2016

DATED THIS THE 25^th DAY OF JANAURY 2017

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SRI.D.SHIVAMAHADEVAIAH, B.A, LLB, MEMBER

SMT.GIRIJA, B.A., LADY MEMBER

Complainant: -

S.B.Mallappa,

S/o. Late Sannabheemaiah,

No.653, 9^th Cross, SIT,

Tumakuru-03

(By Advocate Sri.Satheesh.H)

V/s

Opposite parties:-    

1. Flipkart Internet Pvt. Ltd,

Vaishavi Summit Ground Floor, 7^th Main, 80 feet road, 3^rd Block, Koramangala Industrial Layout,

2. M/s. W.S.Retail Services Pvt. Ltd, Ozune Manya Tech Park,

No.56/18, “B” Block, 9^th Floor, Garvebhavi Palya, Hosure Road, Bangalore-58, Karnataka

(OP No.1-by advocate Sri.Kumar.S.C)

OP No.2 by advocate Sri.Bharath Babu)

ORDER

SMT.PRATHIBHA.R.K, PRESIDENT  

This complaint is filed this complainant against the OPs, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OPs to pay mobile price of Rs.6,999=00 and to pay other expenses of Rs.3,001=00 in total Rs.10,000=00 along with 18% interest per annum.

2. The brief facts of the complaint is as under.

          On 6-6-2015 the complainant had booked mobile hand set from 2^nd OP through internet. On 7-7-2015 1^st OP had delivered the mobile handset model No.V125857/Mi (“866392027641178” “866392027641160) to the complainant by receiving payment of Rs.6999=00.

          The complainant further submitted that, on 2-12-2015 while attending a call, the display of the mobile is suddenly stopped working, since then the mobile is not working. The complainant had contacted the service center at Koramangala, Bengaluru and the service center staff had refused to repair the mobile handset at free of cost and they told that the mobile handset is watered and fallen down and they asked repair cost of Rs.3500=00. On 18-12-2015 the complainant had wrote a letter to OPs requesting them to repair the mobile handset at free of cost or replace the handset, but the OPs did not reply the same. Once again on 21-1-2016 the complainant sent a letter to the OPs, but the OP did not set-right the problem of the mobile handset. The said mobile has damaged within the warranty period, hence there is a negligence and deficiency of service on the part of the OP. Hence the present complaint is filed.

3. After service of notice, the OP No.1 and 2 have appeared through their counsel and filed separate objections.

4. In the version, the 1^st OP has pleaded that, the present complaint is false, frivolous and untenable both in law as well as on the facts and circumstances of the case. The averments made in the complaint are all false and denied this OP.

The 1^st OP i.e. Flipkart.com is web address of Flipkart Internet Private Ltd. which is a company duly registered under the Companies Act, having its registered office at Vaishnavi Summit, Ground floor, 7^th Main, 80 ft. road, 3^rd block, Koramangala Industrial layout, Bengaluru.  The company is inter-alia engaged in providing trading/selling facility over the internet through its website www.flipkart.com. The 1^st OP provides online marketplace/platform/technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by the between respective buyers and sellers and enables them to deal in various categories of goods.

 Without prejudice, the 1^st OP submitted that, the 1^st OP does not fall within the scope of the CP Act. The 1^st OP only an intermediary does not fall within the definition of trader and hence cannot be held liable under the CP Act. The 1^st OP falls within the definition of an “intermediary” under Section 2 (1) (w) of the Information Technology Act, 2000. The 1^st OP is protected by the provisions of Section 79 of the Information Technology Act, 2000.

The 1^st OP further submitted that, the complainant does not fall under the category of Consumer of the 1^st OP as the 1^st OP is neither a “trader” nor a “service provider” as defined under the provisions of the CP Act and therefore, the complainant had wrongly arrayed the 1^st OP in the present complaint. There is no privity of contract between the complainant and 1^st OP. The 1^st OP had not charged any amount from the complainant for using the services available on online marketplace platform “flipkart.com”. The complainant does not fall within the ambit of the definition of the terms “Consumer” as provided under Section 2 (1) (d) of the CP Act. In accordance with the definition of the consumer, exchange of consideration between the parties is a pre-requisite for a consumer dispute. Since the 1^st OP had not charged any amount from the complainant for using the website of the 1^st OP, the complainant does not become a consumer qua the 1^st OP. The very question of deficiency of service raised by the complainant in the Hon’ble forum is of the product purchased by him. This squarely requires the complainant to implead only the seller i.e. 2^nd OP in the present complaint and not the 1^st OP.

The 1^st OP further submitted that, the product purchased by the complainant had been sold by the 2^nd OP and the 1^st OP has no role in providing warranty / after sale services of the product sold by an independent seller i.e. 2^nd OP through website of the 1^st OP. The complainant has not purchased the product from the 1^st OP. The 1^st OP is not involved in the entire transaction except for providing the online platform to the seller and buyer and involvement of 1^st OP is as an intermediary only i.e. to provide online platform to facilitate the transaction in the whole transaction of sale and purchase of goods by the respective sellers and buyers on its website. The 1^st OP is not engaged in selling of any goods on its own. The 1^st OP only provides online platform to different registered sellers where they sell goods and the visitors/buyers of the website, voluntarily, enter into transaction of purchase of various goods from those sellers at their own choice. The services of the 1^st OP are similar to a shopping mall where various shops are rented out to different sellers and in case of any conflict with such shop owners/sellers in the shopping mall, it is the shop wonder/seller, who is hold liable for the consequences and not the owner of the shopping mall where such shops are situated. Hence the 1^st OP shall not be held liable for any liability owning to such contract.

The 1^st OP further submitted that, the user(s) of the website/buyer of goods are bound by the terms of use enumerated on the website which clearly state that the contract of sale is a bipartite contract between the buyer and the seller only and the 1^st OP is not a party to it. The 1^st OP has not been involved in any unfair trade practice.

The 1^st OP further submitted that, the grievance of complainant should have been only against the seller, manufacturer and its service centre as such the product carrier manufacturer’s warrantee and hence the complaint is bad for mis-joinder of party. The 1^st OP is not the manufacture and has no knowledge or facility to ascertain whether the product in question is defective because of manufacturing defect or customer abuse. Therefore the 1^st OP is not liable to pay any compensation to the complainant. The grievance of the complainant should have been only against the manufacturer i.e. Xiomi India and its service centre as such the product carries manufacturer’s warrantee and the 1^st OP has not knowledge about the product’s working condition and its warranty. Hence the complaint is bad for mi-joinder of party. Hence it is prayed to dismiss the complaint with exemplary cost.

5. In the version, the 2^nd OP has submitted that, the present complaint is false, frivolous and vexatious and hence filed the complaint with malafide intention just for harassing the 2^nd OP. The present complaint is neither maintainable in the eyes of law or on facts nor otherwise and it is liable to be dismissed in limine. The complaint is devoid of any merits and the averments made in the complaint are baseless and do not cover the complete facts of the case and are made only with the intention to defame the 2^nd OP and extorting money illegally.

The 2^nd OP further submitted that, 2^nd OP i.e. WS Retail services Private Ltd. is a company incorporated under the Companies Act having its registered office at Ozone Many Tech Park, Bengaluru.

The 2^nd OP further submitted that, the product in issue was manufactured by Xiaomi carrying manufacturer’s warranty as provided by the manufacturer. The present complaint should have been made only against the manufacturer its service centre as the entire complaint is based upon the grievance in relation to the defect in the handset and it is after sale services. Hence, there is no deficiency of service on the part of the 2^nd OP. The product was delivered to the complainant in a sealed box condition and without any delay hence there is no deficiency on the part of the 2^nd OP. The liability to provide after sale services does not lay upon the 2^nd OP as the 2^nd OP is nether the manufacturer nor its authorized service centre hence there is no cause of action lies against the 2^nd OP.

The 2^nd OP further submitted that, it is not engaged in selling of any goods manufactured or produced on its own. The 2^nd OP is engaged in selling of goods manufactured and produced by the manufacturer herein and is a separate and distinct identity. Hence, grievance of complainant should have been only against the manufacturer as such the product carries manufacturer’s warrantee and hence the complaint is bad for non-joinder of party.

The 2^nd OP further submitted that, the complainant had used the product in issue for almost over 5 months from the date of receipt of the product and thereafter allegations made by the complainant is that, the display of the mobile has suddenly stopped working so product carries manufacturing defects. As a goodwill gesture the 2^nd OP provides 30 day’s replacement warranty to its customers and it is an admitted fact that the complainant did not face any problem with the product during these 30 days, hence the 2^nd OP cannot be made liable and therefore the complaint filed by the complainant is liable to be dismissed.

The 2^nd OP further submitted that, the 2^nd OP is merely a reseller, registered on flipkart.com and the products bought by the complainant carry warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms and conditions determined by the manufacturers only. The 2^nd OP has no facility or knowledge/technical knowhow to ascertain whether the product in issue in the present complaint is defective or has manufacturing defects. The complainant has failed to implead the manufacturer and service center as a necessary party to the complaint, hence, the complaint is bad of non-joinder of necessary party.

The 2^nd OP further submitted that, the 2^nd OP is not the manufacturer of the product sold to the complainant, it is simply a reseller and there is no privity of contract between the complainant and the 2^nd OP. Hence the allegations leveled by the complainant can only be determined and responded by the Manufacturer Xiaomi and complaint should be dismissed. Hence the complaint be dismissed against the 2^nd OP with exemplary cost. 

6.  In the course of enquiry into the complaint, the complainant and OPs have filed their affidavit evidence reproducing what they have stated in their respective complaint and version.   The complainant has produced documents, which were marked as Ex-1 to Ex-4(2). We have heard the arguments of both parties and perused the documents of both parties and posted the case for order.

7. Based on the above materials, the following points will arise for our consideration.

1. Whether the complainant is not impleaded the necessary parties to this proceeding?
2. Whether there was deficiency in service on the part of the OPs as alleged by the complainant?
3. What Order?  

8. Our findings on the above points are;

          Point No.1: In the Negative

          Point No.2: In the Negative

          Point No.3: As per the final order below.

REASONS

          9. As looking into the averments of complaint and also version filed by the OPs, it is an admitted fact that, on 6-6-2015 the complainant had purchased mobile handset model No.VI25857/MI (866392027641178-866392027641160 from the 2^nd OP through internet from 1^st OP. The 1^st OP had delivered the same to the complainant by receiving payment of Rs.6,999=00. To substantiate the above facts, the complainant has filed his affidavit evidence and also produced Retail/Tax Invoice/Bill and warranty. This evidence of complainant remains unchallenged, to disbelieve this evidence of complainant, there is no rebuttal evidence, therefore it is proper to accept the contention of the complainant.  

          10. The main allegation of the complainant is that, the above said mobile handset is not working properly and display of the mobile handset is suddenly stopped since 2-12-2015. For this reason, the complainant had contacted the service centre of OPs at Koromangala, Bengaluru. The service centre of OPs had refused to repair the mobile handset at free of cost and staff of the service centre had told that, the mobile handset is water logged and fallen down, due to this, the complainant has to pay repair cost of Rs.3,500=00. The complainant further alleged that, the above said mobile handset is under warranty period, but the OPs have demanding for repair cost of Rs.3,500=00.

          11. On perusal of the pleading, the OP No.1 i.e. Flipkar.com is only intermediary/agent between the buyer and seller. The 1^st OP is not manufacturer. The 1^st OP has vigorously contended in his version that, he has no knowledge or facility to ascertain whether the product in question is defective and further contended that, they have no knowledged that, the above said mobile handset carries manufacturer’s warrantee. The 1^st OP is neither a manufacturer nor a seller of the alleged product and merely an intermediary providing online service.

          12. The 2^nd OP is engaged in selling of goods manufactured and produced by the manufacturer. The product was delivered to the complainant in a sealed box condition and without any delay. The 2^nd OP contended that, the 2^nd OP is only limited to selling the product of various manufacturers and its role comes to the end of the product ordered is delivered in good condition at the customer. The 2^nd OP provides 30 days replacement warranty to its customers if it brought to their notice. On perusal of the pleading of the complaint, the complainant was brought to the notice of the problem in the above hand set mobile to the 2^nd OP only after expiry of 30 days. The complainant did not face any problem with the product during these 30 days.

          13. On perusal of the pleading and evidence of both parties and documents produced by the complainant, it is seen that, the 1^st OP is an intermediary/agent between the buyers and sellers and the 2^nd OP has delivered the product to the complainant in a sealed box condition and given 30 days replacement warranty to its customers. The problem has started after five month from the date of delivery. Hence there is no deficiency of service on the part of the OPs.

14. No doubt, there is one year warranty period given by the manufacturer to the complainant’s mobile for any damage. But in this case, the complainant has not made the manufacturer as a party to the proceedings.         

15. Admittedly, the complainant has stated in his complaint as well as affidavit evidence that, he has approached the service center and they demanded Rs.3,500=00 for repair cost, as such, the above said mobile handset is water logged and fallen down that is not included in the warranty period. The complainant has not produced job sheet given by the service centre. Moreover, the complainant has not made a service center as a party to the proceedings. Hence in the absence of above facts, we come to conclusion that, the present complaint filed against the OPs is not maintainable. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

The complaint is dismissed. No costs.

          Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 25^th day of January 2017).

LADY MEMBER                      MEMBER                       PRESIDENT