Complainant Atul Kumar Sharma Advocate, through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to pay back the value of mobile i.e. Rs.6999/-. Opposite parties be further directed to pay Rs.50,000/- as mental pain and agony and Rs.10,000/- as litigation expenses to him, in the interest of justice.
2. The case of the complainant in brief is that he has booked a Smartphone brand Swipe midnight blue colour through opposite party no.1 on 30.6.2016 and the opposite party no.1 delivered the mobile on 1.7.2016. He has paid Rs.6999/- of mobile cost and also paid delivery charges to the opposite parties as such he is consumer of the opposite parties. After few days from receiving the said mobile set the same was not working properly. He approached the opposite party no.2 through a phone call and complained about the defect of mobile and they advised him that mobile set be got repaired from their care center. He has visited the office of opposite party no.3 and gave them mobile set for repair on 31.8.2016 but on 7.9.2016 the opposite party no.3 returned the mobile without repairing it and advised him the same be returned to opposite party no.1. After this he made a phone call to opposite party to replace the mobile set, but they refused to do so. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.
3. Upon notice, the opposite party no.1 appeared through its counsel and filed the written reply by taking certain preliminary objections. On merits it was submitted that the complainant has not placed on record any invoice through which it can be ascertained that the product in question was purchased by the complainant through opposite party. It was further submitted that there is no deficiency in services on the part of the opposite party and the complainant has not suffered on account of deficiency on the part of opposite party. The Portal is only an online platform that can be utilized by users to reach a larger base to buy and sell products or services. The opposite party is only providing an online platform for communication and it is agreed that the contract for sale of any of the products or services shall be a strictly bipartite contract between the Seller and the Buyer. Therefore, there is no contractual obligation of the opposite party towards the complainant and hence neither any liability can be attributed to the opposite party nor any relief can be claimed against the opposite party under any circumstances whatsoever. It was further clarified that the opposite party is neither the manufacturer of the product nor the service center of the manufacturing company nor even the seller therefore, opposite party cannot provide any kind of assistance with regard to removal of any defect in the product. It is only and only the manufacturer or the authorized service center of the manufacturer who can resolve the problem of the complainant after the sale of the product and manufacturer is solely responsible for any manufacturing or any other defect in the product as the Warranty is provided to the customer directly by the manufacturer therefore, there is no role of the opposite party for the removal of any defect in the product. Lastly the complaint has been prayed to be dismissed with costs.
4. Notice issued to the opposite parties no.2 and 3 have not been received back. Case called several time but none had come present on behalf of opposite parties no.2 and 3. Therefore, they were proceeded against exparte vide order dated 25.10.2016.
5. Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1, alongwith other documents Ex.C-2 to Ex.C-5 and closed the evidence.
6. Counsel for the opposite party no.1 tendered into evidence affidavit of Mr.Satya Jeet Bhattacharya Ex.OP-1 and closed the evidence.
7. We have examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while at the same time also taking the due judicial-notice of the opposite party’s (OP2 Manufactures and OP3 Service Centre) intentional absence (resulting into the ‘ex-parte’ participation) in spite of the ‘proven’ summons-service. Although, it has been a trite settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee litigant has no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte participants by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the applicable adjudicatory Act.
8. We find that the present complaint has arisen as a result of ‘non-working’ of the Swipe Make Smart Phone purchased through the OP1 vendors/service providers on 01.07.2016 for an amount of Rs.6,999/- that could not even be satisfactorily repaired by the OP2 appointed (Manufacturers) local OP3 service centre and hence the present complaint. The OP1 Vendor Supplier appeared to simply file the routine written statement admitting the supply of the mobile set but not its ‘sale’ and also the disorderly ‘dysfunction’ of the mobile in question sans even rebuttal of the complainant’s allegations etc. We, further find that the complainant could not utilize/enjoy the benefits of his duly purchased ‘mobile’ from the OP1 vender who had naturally assured him of the manufacturers’ warranty/repair services etc. Thus, the consumer rights of the complainant have indeed been infringed jointly at the hands of all the ‘3’ nos of opposite parties. We are not prepared to accept the OP1 pleadings disowning all its liabilities of supply of quality products under the alibi of simply being an ‘online web portal’ facilitating the inter-se transactions between the Buyers and Sellers. The delivery documents Ex.C2 to Ex.C4 confirm the placing of ‘purchase-order’ with the OP1 on 30.06.2016 and subsequent delivery (with 10 days replacement) on 01.07.2016 at cash receipt of Rs.6,999/-. Thus, all the titled opposite party suppliers/service providers shall not escape their respective as well as joint responsibility and liability of supply of the ‘quality’ product in conformation to the transacted terms. The consumer does not pay for a faulty/non-working product. We find that the OP1 have wrongly interpreted section 79 of the IT Act, 2000 by including the sale supply of one physical product (mobile set) under its purview. It shall certainly amount to ‘unfair trade practice’ coupled with ‘deficiency in service’ and that rakes up all the titled opposite parties to an adverse ‘award’ under the Act.
9. In the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite parties to arrange for the ‘satisfactory’ repairs and delivery of the Mobile Set in question from the opposite party No.3 Service Centre to the recorded address of the complainant along with a ‘certificate’ that the ‘mobile’ is in ‘perfect working order’ as per the Nokia standards and its ‘warranty’ stands extended by another ‘six’ months or in the alternative pay-back/ refund the billed amount of Rs.6,999/- i.e., the cost of the mobile-set besides to pay him Rs.2000/- as cost and compensation. The compliance of the present award shall be the joint and several liability of the titled opposite parties and its cost may be borne between themselves as per their mutual settlement (if any) but the exercise shall, by all means be completed/exhausted within 30 days of the receipt of the copy of these orders otherwise they shall also be (jointly and severally) liable to pay interest @ 9% PA from the date of the present orders till actually paid
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
ANNOUNCED: (Jagdeep Kaur)
January 24, 2017 Member
*MK*
