For Complainant          :             Self

For OPs No.1                  :             Mr. Iqbal Tahir Syed & Sandeep Panigrahi, Advocates.

                                                                                                    -x-

1.                         The brief history of the case of the complainant is that he purchased a MOTO E4 plus handset IMEI No.356513080831599/356513080831607 from the OP.1 vide Invoice No.FAAAKS1800037769 dt.03.08.2017 for Rs.9999/- through online but soon after its use the complainant found Mic problem in the handset for which it was replaced with a new one of same brand.  It is submitted that during use of said handset, the complainant found touch screen problem and as per advice of OP.2 he approached the ASC (OP.3) with the handset at Bhubaneswar which did not rectify the defects.  On further contact to OP.2 regarding non working of the handset, the OP.2 advised to visit the ASC again.  As the ASC at Bhubaneswar is far away from the place of the complainant, he did not approach the OP.3 again.  Further it is submitted that he purchased another E4 plus handset IMEI No.355632086460475/355632086810471 from OP.1 vide Invoice N.FAAAKS1800074552 dt.14.08.2017 for Rs.9999/- and that handset was once replaced for the same reason.  The handset after replacement also suffered display problem and lying unused.  Thus alleging deficiency in service and defects in goods, he has filed this case praying the Forum to direct the Ops to refund Rs.20, 000/- towards cost of 2 sets of handsets and to pay Rs.45, 000/- towards compensation and costs to the complainant.

2.                         The OP.1 filed counter denying the allegations of the complainant and contended that the Forum has no jurisdiction to entertain the present case as no cause of action has arisen against OP No.1.  It is contended that the product purchased by the complainant was manufactured by OP.2 and sold by a 3^rd party seller registered under “Flipkart Platform” which is an electronic platform acts as intermediary to facilitate sale transactions between the independent 3^rd party seller and independent ends customers.  It is further contended that once a buyer accepts the offer of sale of the products made by 3^rd party seller, the seller is intimated electronically and is required that the products are made available and delivered in accordance to the delivery items as per terms of sale displayed by the seller.  It is also further contended that the OP.1 being online market place is engaged in providing trading facility over the internet through its website and is not responsible for any non performance or breach of any contract entered into between the buyers and sellers.  The OP.1 also contended that it has no right or interest over the products nor shall have any obligation or liabilities in respect of such contract entered into between the buyers and sellers.  Thus denying the present complainant as its consumer and also denying any fault on its part, the OP.1 prayed to dismiss the case of the complainant. 

3.                         The OP No.2 in spite of valid notice neither filed counter nor participated in this case in any manner.  The registered notice sent to OP.3 returned unserved with remark “left” and thus the Ops 2 & 3 remained ex-parte in this proceeding.

4.                         The complainant has filed certain documents in support of his case.  Heard from the complainant as well as A/R for OP No.1 at length and perused the materials available on record.

5.                         In this case purchase of MOTO E4 Plus handset (fine gold, 32 GB) IMEI No.356513080831599/356513080831607 by the complainant vide Invoice No. FAAAKS1800037769 dt.03.08.2017 for Rs.9999/- from OP.1 is supported by retail Invoice issued by OP No.1.  It is also an admitted fact that the OP No.2 is the manufacturer of that product and the OP No.3 remains as ASC of the Company.  The case of the complainant is that he purchased a handset which suffered Mic defect for which that handset was replaced by the OP.1 with the present handset and the present handset after its use for few days suffered touch screen problem for which as per advice of the customer support team of OI+P.2, he approached OP.3 ASC but the OP.3 could not give proper solution to the defects in the handset.

6.                         As per advice of OP.2 customer support team the complainant did not visit the ASC at Bhubaneswar again citing the reason that it is expensive to go to Bhubaneswar.  Further the complainant has also not visited the ASC of the Company situated at Jeypore itself as has been advised by said customer support team.  Now the handset is lying unused with the complainant.

7.                         It was ascertained that the OP.1 is engaged in providing trading facility through its website which is a platform that users use to meet and interact with one another for their transactions.  So the OP.1 does not involve in offering and acceptance of any commercial transaction between the buyer and the seller and hence it can be concluded the OP.1 is not the seller of the product to which the complainant has purchased.  Therefore the OP.2 is the actual seller of the product and is responsible for after sale service related to the products.

8.                         In absence of counter and participation of OP No.2 in this proceeding, we have lost opportunity to know anything from it and thus OP.2 remained ex-parte in this proceeding.  Hence the allegations of the complainant remained unchallenged.

9.                         It is a fact that the handset purchased by the complainant had suffered touch pad problem and he had approached the ASC of the Company at Bhubaneswar but after repair and use the defects in the handset returned.  As the ASC is situated far away from Koraput, the complainant did not prefer to visit the ASC again and again.  The service job sheet issued by OP.3 dt.16.8.2017 is available on record.  It is also not possible for a customer to attend service centre covering all the way from Koraput to Bhubaneswar.  It is also seen that after repair by the ASC, the same problem returned and as such it can be concluded that due to inherent manufacturing defect, the handset became out of order after its repair by OP.3.

10.                       Further the complainant is grumbling about another handset claims to be purchased by him vide Invoice No.FAAAKS1800074552 dt.02.08.2017 and according to the complainant the said handset suffered defects and is of no use now.  Perused the copy of retail invoice of that handset available on record and found that the invoice is issued in favour of one Himanshu Sekhar Das of Unit-4 area, Bhubaneswar.  The complainant did not utter a single word in his complaint petition as to how he claims that the handset is owned by him when the bill is issued in the name of another person.  In absence of any credible evidence in respect of the handset in question, it can be said that the complainant is not the owner of that product and as such he cannot agitate any complainant to that respect.

11.                       In fine, the complainant is entitled for Rs.9999/- in respect of handset vide Invoice No. FAAAKS1800037769 dt.03.08.2017 with interest @ 12% p.a. from the date of purchase.  As higher side of interest has been awarded, we are not inclined to grant any compensation in favour of the complainant except a sum of Rs.2000/- towards costs.

12.                       Hence ordered that the complaint petition is allowed in part and the OP No.2 being liable is directed to refund Rs.9999/- towards cost of the handset with interest @ 12% p.a. from 03.08.2017 in lieu of defective handset and to pay Rs.2000/- towards cost to the complainant within 30 days from the date of communication of this order.

(to dict.)