Date of Filing:07/10/2017

Date of Order:06/06/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:06^TH DAY OF JUNE 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.2717/2017

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT

1. This is the complaint filed in person by the complainant against the Opposite Party (hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986  praying this Forum to direct the O.P to pay a sum of Rs.12,999/- being the cost of the defective mobile handset supplied, along with interest and Rs.5,000/- towards the cost of the proceedings and grant such other reliefs as this Hon’ble Forum deems fit.

2. The brief facts of the complaintare that, the complainant purchased a Redmi Mobile handset Note 4 RAM 4 GB with ROM 64 GM through the O.P on 19.9.2017 for Rs.12,999/-. The O.P supplied the handset which is having IMEI No.866257037135828. After the same was put to use, he found that there was physical damage to the mobile handset such as edge bar loosely connected, 5 MP and 13 MP camera clarity is poor, also not performing properly in the night mode and low light mode.  When the same was brought to the knowledge of the Unit Manager one Avinash of O.P., he promised to refund the cost of the handset and would resolve the issue by 22.9.2017. He did not send the refund amount and when contacted again,he promised further to settle the issue by 28.9.2017.  Suddenly he shot a email informing him that a technician would visit him to inspect the mobile set on 25.9.2017. The technician came and saw the mobile set and checked the camera whether it is working or not.He did not do anything and he also informed him that he could talk to the customer care for returning the handset.  There is deficiency in service in not providing a good mobile handset and hence filed this complaint.

3.   Upon the service of notice, O.P appeared before the Forum and filed its version and has admitted that the complainant booked the mobile handset through their web site and made the payment. It is the specific case that, itis only a facilitators and not supplier or manufacturer and not engaged in selling of goods manufactured on its own and at no point of time, they become the owner of the products sold over their platform.  There is no contractual obligation binding between it and the complainant.  The complainant purchased the product from its online platform and the contractof sale is between the purchaser and the seller and it cannot be held liable for any deficiency. The seller of the product is an independent 3^rd party seller registered on market price website Flipkart.com and not O.P herein. It has no role to play on the retail selling. No relief can be claimed against it.  It has not given any kind of assurance, warranty of the product, time or period of warranty or otherwise is offered by seller/manufacturer. The complainant has not approached with clean hands. It is not liable to refund thecost of the mobile set or damages as claimed by the complainant and hence prayed to dismiss the complaint.

4.     We have carefully gone through the entire evidence and documents produced by the complainant.After hearing their counsel, the following points arise for our consideration:-

1)   Whether the complainant has proved

deficiency in service on the part of the

Opposite Party?

2)  Whether the complainant is entitled to

the relief prayed for in the complaint?

5.     Our answers to the above points are:-

POINT 1): In the Affirmative.

POINT 2): Partly in the Affirmative

As per the final order.

REASONS

ON POINT No.1:-

6.     The complainant has reiterated the facts of the complaint in his affidavit filed in lieu of evidence. Whereas O.P has not entered into witness box and adduced his evidence even though it has filed its version.

7.     The admitted facts in this case are that, the complainant through O.P.’s online platform placed an order Redmi Mobile handset Note 4 RAM 4 GB with ROM 64 GM through the O.P on 19.9.2017 for Rs.12,999/-. The same was delivered to the complainant.  The invoicemakes it clear that O.P supplied the handset. The customer service job sheet is produced clearly shows that the camera of the mobile during night mode and low light mode is not performing properly.  The document filed is not fully legible as to what is the observation made by the engineer. The O.P has not disputed the conversion or discussion its executive one Avinash had with the complainant. It has also not disputed his assurance or promise to the complainant regarding refund and at a later date sending a technician for the inspection of mobile set. If at all, there was no issues at all raised by the complainant, there was no necessity for the O.P to send its technician for inspection and repair. This itself clearly go to show that it has supplied a substandard and defective mobile handset to the complainant.

8.  When this is taken into consideration, the say of the complainant is amplified. Hence we are of the opinion that there is deficiency in service in not selling a quality product to the complainant by O.P and has not taken back the mobile handset that it has supplied and refunded the amount received by the complainant. So there is deficiency in selling a substandard and defective handset.Hence we answer Point No.1 in the affirmative.

POINT NO.2:

9.   The complainant has sought for the refund of Rs.12,999/- being the cost of the mobile handset. Since we have answered Point No.1 in the affirmative, complainant is entitle for the refund of Rs.12,999/- along with interest at 12% per annum from 19.09.2017, the day, on which he purchased the mobile handset from the O.P till the date of payment of entire amount.

10.  Since we have held that there is deficiency on the part of O.P in supplying the substandard and defective handset andnot refunding the amount to the complainant, complainant is made to approach this Forum by spending money, time and energy for which he has to be compensated.  In view of this, we are of the opinion that if a sum of Rs.5,000/- towards litigation and other expenses awarded, would meet the ends of justice. Hence we answer Point No.2 Partly in the Affirmative and we proceed to pass the following:-

ORDER

1. The complaint is partly allowed with cost.
2. O.P i.e. Flipkart Internet Private Limited represented by its Authorized Signatory is hereby directed to pay a sum of Rs.12,999/-  being the cost of the Mobile Handset i.e. Redmi Note 4 along with interest at 12% per annum on the above from 19.09.2017  till repayment of the entire amount. In case the amount is paid by O.P, complainant is directed to return the handset to O.P.
3. O.Pis also directed to pay a sum of Rs.5,000/- towards the litigation expenses.
4.  The O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 6^thDay of JUNE 2018)

MEMBER                        PRESIDENT

*RAK

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1:Renuka Prasad K.S. - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1: Copy of mobile bill/Invoice.

Doc.No.2: Copy of Customer service job sheet.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: - Nil -

Copies of Documents produced on behalf of Opposite Party/s

Annexure-1:Copy of the press note issued by DIPP.

Annexure-2: Copy of the extract of the terms of use.

MEMBER                        PRESIDENT