Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 183
Instituted on : 10.04.2019
Decided on : 22.11.2024
Happy age 20 years, s/o Sh. Raj Kumar r/o V.P.O.Seria, Teh. Beri, Distt. Jhajjar.
……….………….Complainant.
Vs.
- Flipkart Internet Pvt Ltd., Vaishnavi Summit, no. 6/8, 7thmain, 80 feet road, 3rd block, Koramangala, Banglore-560034.
- Tech Connect Retail Private Limited, Unit no 403, 4th floor, Baani 1, Next to Hilton Double Tree Hotel, Golf Course Road, Sec 56, Gurgaon, Haryana 122011 (Flipkart Seller).
- Lenovo India Private Limited Ferns Icon, Level 2, Outer Ring Road, DoddanekundiBengaluru(Karnataka)-Pin-560037.
…………Respondents/ Opposite parties
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh. RandeepBeniwal, Advocate for the complainant.
Sh.KunalJuneja, Advocate for opposite party No.1.
Sh.AnkurDua Advocate for opposite party No.2.
Sh.NaveenAladia, Advocate for opposite party no.3.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case, as per the complainant are that he had purchased a laptop setof Lenovo, Model Lenovo Ideapad 330s Core i5th Gen, bearing IMEI no.SYD04NDMH from opposite parties for a consideration of Rs.54,790/- vide bill no.#FAA9ML1901657927 dated 18 March 2019. The said laptop was purchased online through opposite party No. 1 and shipped to complainant by opposite party No.2. There is replacement/return of 10 days provided by opposite party No.1 at the time of sale of the said laptop to the complainant.On 24.03.2019, complainant unboxed its package. It did not boot up/start not a single time till complainant unboxed it. After trying more than 3 hours, complainant called to flipkart customer care (O.P. No. 1) for its replacement. They told that will give Hand-to-hand replacement for the laptop but lateron they told that there is technical error and so the complainant had to wait for two hours and thereafter they gave same answer four times. Complainant told them that he needed this laptop urgently as he had internal assessment exam on 7th April, 2019 (Sunday). On 26th March, they telephonically told the complainant that there was a technical error and they couldn't complete his request and did not resolve the problem. Finally complainant took help of National Consumer Helpline and registered his complaint vide docket no. 1228629. Then he mailed the opposite party No.1 through "need help" section in Flipkart App on 28th March 2019 and mentioned all his problems in that mail. Then their senior officer's told the complainant that the respective seller (opposite party No. 2) could give replacement but he needed a technical visit once. Complainantagreed for the same and on 2ndApril 2019, a technician came to the complainant and checked the laptop and found it faulty. The fault was clearly mentioned in technician's report(SO No. 7009257091) also mentioning that one copy of this report was already sent to Flipkart (opposite party No.1) for replacement. Complainant requested them to send the laptop as he was in great need of laptop due to his exams but they mislead him and couldn't give any solution instead of time. Complainant also sent their technician report to them on mail but they still didn't take any action. Complainant gave his exam on another laptop. This kind of behaviour of opposite parties is totally malafide and illegal trade practice and business. The opposite parties have cheated the complainant by selling him the laptop having manufacturing defect in it and after that denied to replace it though the laptop was in policy. The opposite parties refused to replace/return the laptop on time. There is a clear deficiency in service on the part of opposite parties. Due to this, complainant has suffered a great mental agony at the hands of the opposite parties besides suffering other losses including financial loss, wastage of time etc. He was insulted in whole class many times for not doing hiswork on time. Complainant was doing B.tech(graphics and packaging). So laptop was mandatory for him. Complainant had hearing impairment surgery of both ears so his doctor advised him to attend less phone calls.But due to non-resolution of his laptop problem, his ears damaged again and he had to go for surgery on 1 June 2019. The opposite parties have unnecessarily harassed the complainant. Hence this complaint and it has been prayed that opposite parties may kindly be directed to replace the laptop of the complainant with new laptop or refund the gross amount of 54,790/- spent by him on the purchase of laptop, to pay a sum of Rs. 2,50,000/- on account of deficiency in service, mental pain and agony suffered by the complainant and to pay a sum of Rs.12,000/- on account of litigation expense to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No.1 appeared and filed its written reply submitting therein that Flipkart ‘internet Private Limited is a company , which provides trading/selling facility over the internet through its website www.flipkart.com and mobile application. It provides online marketplace platform/technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transaction, electronic commerce for various goods, by and between respective buyers and sellers. It is further submitted that in the instant complaint, it is evident from the invoice copy attached by the complainant with his complaint that the actual seller of the product is a third party seller and not the opposite party. The complainant has wrongly arrayed this opposite party in the present complaint.There is no privity of contract between the complainant and the opposite party. The complainant has not raised a single specific issue or grievance against the opposite party in the entire complaint. The complainant is clearly stating that the grievance arising out of alleged defects is against the manufacturer who did not resolve the error occurring in the laptop. The grievance does not lie agains the opposite party as the opposite party is merely an intermediary providing a platform to the buyer of the products. Opposite party is neither liable to refund the cost/replacement of the product nor to pay any compensation to the complainant. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
3. Opposite party No.2 appeared and in preliminary objections of its reply has submitted that thecomplainant has suppressed true and material facts from this Hon'ble Commission and cooked all crooked stories of sufferings. Hence, the present complaint is not maintainable and liable to be dismissed against the opposite party. The opposite party is a registered seller on the website "Flipkart.com" and sells products of other manufacturers, traders, etc. under their respective trademarks through the website. Opposite Party is not engaged in the sale of any goods manufactured or produced by its own whereas it is engaged in sale of goods manufactured and produced by other manufacturer. Thus, opposite party has separate and distinct identity from that of the manufacturer of the product i.e. Lenovo, and there is no relation of Principal & agent between Lenovo and opposite arty. It is pertinent to mention here that the opposite party is only the registered reseller of the Flipkart.Com which is own and run by Flipkart Internet Pvt. Ltd. In view of the aforesaid reasons the opposite party has been wrongly impleaded in the present complaint. Therefore, the present complaint is liable to be dismissed for Mis-joinder of necessary party and non-joinder of manufacturer being necessary party to the complaint.It can be evidenced from the perusal of the document annexed by the complainant that he has only approached manufacturer(who has not been impleaded in the array of party being a necessary party to the complaint), and this action of complainant is in itself evidence enough to prove that the complainant was aware and had full knowledge of the facts that the alleged issues in the product can be addressed to Service Provider or Manufacturer only, who have not been impleaded in the array of party being a necessary party to the complaint and not to opposite Party No.1. It is also submitted that oppositeparty has no role to play in offering or providing after sale services to the customers. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
4. Opposite party No.3 in its reply has submitted that the allegations of manufacturing defect in a machine is not to be taken to be as a gospel truth on a mere statement but it is required to be proved beyond doubt by means of credible documentary evidence. The complainant has utterly failed to produce and place on record any technical report from a recognized engineer in support of his allegations and is merely making baseless allegations without any cogent evidence. Opposite party is not privy to complainant's interactions with the Business Partner (BP) and hence cannot validate these allegations. It is also pertinent to note that the opposite party also cannot validate the 10 daysreplacement policy of the Business Partner as it is not privy to any such internal policies of the BP. It is further submitted that as per their records, the Service Order SO# 7009257091 was logged on 01 April 2019, where the engineer of the opposite party visited the complainant and diagnosed the laptop and found that there is an issue in the Hard Disk. To resolve this issue, the opposite party offered to provide service and replace the part as per the Lenovo Limited Warranty Terms, but the complainant was not ready to accept the service and replace the part of the Laptop. It is stated that by refusing to accept the service and resolve the issue, the complainant alleging deficiency in service, and instead asking for the replacement of the laptop, is evidence of his malafide intention to derive undue benefit from the opposite party. The opposite party has provided the due service in accordance with the Lenovo Limited Warranty policy. Hence there is no deficiency in service on the part of opposite party and dismissal of complaint has been sought.
5. Ld. counsel for complainant in his evidence has tendered affidavit Ex.PW1/A, documents Ex.P1 to Ex.P4 and closed his evidence on dated 17.02.2022. Ld. Counsel for opposite party no.1 made a statement that reply already filed on its behalf be read in evidence and closed his evidence on 22.02.2023. Ld. Counsel for opposite party no.2 failed to conclude its evidence despite availing sufficient opportunities. As such, evidence of opposite party No.2 was closed by the order dated 22.02.2023 of this Commission.Ld. Counsel for opposite party no.3 in his evidence has tendered affidavit Ex.RW3/A, documents Ex.R3/1 to Ex.R3/2 and closed his evidence on 04.07.2022.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case, the complainant had placed an order for laptop for Rs.54790/- on 18.03.2019 through opposite party no.1, as is proved from the Tax Invoice Ex.P1. The name of the seller is Tech Connect Retail Private Limited i.e. opposite party No.2. `The grievance of the complainant is that the alleged laptop was having manufacting defect and he requested the opposite party No.1 for replacement of the same within 10 days replacement policy but the same was not replaced despite his repeated requests. He was a student of B.tech and due to non-replacement of product, his studies were adversely effected and he also suffered a great mental tension and harassment. A document has beenplaced on record as ‘Annexure JNA’, which is result of B.Tech. VI Semester, to prove the fact thatcomplainant wasa B.Tech student and was studying in Kurukshetra University at the time of purchase of laptop and was in great need of laptop. Another document ‘Annexure JNB’ has been placed on record to prove the fact that laptop has been purchased online on 18.03.2019 and the same was delivered to the complainant on 24.03.2019. The replacement request has been rejected on 10.04.2019 on the ground that the “issue has been resolved”. But as per the complainant, the problem was not resolved by the respondents and there was manufacturing defect in the laptop in question.. To prove the fact that there is manufacturing defect in the laptop in question, Onsite services Call Report Ex.P2 has been placed on record by the complainant. The perusal of this report shows that the laptop has been checked by the technical person dated 02.04.2019 i.e within a time of 10 days and it has been observed that “Visited the site and checked the system in power but HDD test failed. Suspected part HDD but customer not want the replace part, customer want replace machine, Same update the fsteam(Mr. Sisir) as per cc customer contact the flipkart”. Moreover, in parawise reply no.2 filed by the opposite party No.3, opposite party no.3 has been mentioned that “Therefore, the replacement/return policy of 10 days provided by business Partner(BP) cannot be validated by the answering opposite party”. But as per out opinion, there is manufacturing defect in the product in question. Respondent replace no.3 is manufacturer of the product. Technical person has been sent by the opposite party No.3 i.e. manufacturer. It was within the knowledge of the opposite party no.3 that there is manufacturing defect in the laptop in question. Hence the same should have been replaced by the opposite party No.3 but the same has not been replaced by the opposite party No.3. As such, there is deficiency in service on the part of opposite party no.3 and opposite party no.3 is liable to refund the price of laptop beside the compensation awarded to the complainant on account of harassment sufferedby the complainant being a student of B.Tech., for whom laptop is a necessity.
8. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.3 to refund the amount of Rs.54790/-(Rupees fifty four thousand seven hundred and ninety only) alongwithinterest @ 9% p.a. from the date of filing the present complaint i.e. 10.04.2019 till its realisation. Opposite party No.3 is further directed to pay Rs.10000/-(Rupees ten thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision.
9. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
22.11.2024.
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Nagender Singh Kadian, President
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TriptiPannu, Member.
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Vijender Singh, Member
