This case is coming for final hearing on 17-03-2015 in the presence of Complainant in person and Sri B.Jagannadha Rao, Advocate for 1^st Opposite Party and Opposite Parties 2 & 3 set exparte and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per the Honourable Member Sri V.V.L.Narasimha Rao on behalf of the Bench)

1. The present complaint is filed by the Complainant in person against the Opposite Parties 1 to 3 and requested the Forum to direct the Opposite Parties 1 to 3 (a) to refund the cost of the Karbonn Titanium S5 Mobile, Rs.9399.00 along with 18% interest p.a. till realization (b) to pay Rs.30,000/- towards compensation for causing mental agony (c) to pay Rs.1,000/- towards costs for litigation.

2. The brief averments are as follows: The complainant submits that he has purchased Karbonn Titanium S5 Mobile through the 1^st Opposite Party which was marketed and manufactured by 2^nd Opposite Party. The said Mobile was purchased on 22.09.2013 vide OD 309-2109 4910. After using the Mobile for 2 to 3 months the touch screen started giving problem on 24.03.2014 The Mobile set was handedover to the 3^rd Opposite Party Servicing Centre and 3^rd Opposite Party has given Job sheet No.514, dt. 24.03.2014. The 3^rd Opposite Party informed the complainant that the repair of the Mobile set will be done within 45 days. On 15.05.2014 when the complainant visited the 3^rd Opposite Party Service Centre Mr.Rajesh intimated that the repairs for the Mobile has not done and it will take 2 weeks. When the complainant requested the concerned person he was assured that the Mobile set will be given to him on 17.5.2014. On 17.5.2014 when the complainant went to the 3^rd Opposite Party’s office an old set of the Mobile with different IMIE Number was offered to the Complainant, but the Complainant refused to take the same and contacted the Manager Sri Rajesh. The Manager of the 3^rd Opposite Party promised the Complainant to give the repaired set after 20 days. The complainant has registered a Complaint through Email to the 2^nd Opposite Party and tried to contact the Opposite Party at Customer Care. But no one lifted the phone and also there is no response from the 3^rd Opposite Party. On 10.06.2014 Mr.Rajesh from the 3^rd Opposite Party contacted the Complainant and advised him to come and collect the Mobile set on 11.06.2014. When the Complainant went to the 3^rd Opposite Party’s office, Complainant was provided with an old Mobile of different IMIE No.911309351232676/911309351232684 and also stated that the PCB is changed for repair of touch screen problem. The old set was provided to him by changing the IMIE No. Even after receiving the old set also the problems like speaker malfunctioning, multi colour screen display arose with the Mobile set and when the Complainant visited the 3^rd Opposite party, there is no response and also even the contact for the care centre is also not functioning. On 16.6.2014 the Customer Care at Delhi lifted the phone and complainant explained about the problem with the old defective mobile set. Thereafter the 3^rd Opposite Party Servicing Centre took the Mobile set for repairs and even after 3 months also the Mobile set was not returned and still with the 3^rd Opposite Party only. Hence alleged deficiency of service on the part of Opposite Parties, the Complainant filed the present complaint seeking reliefs as sought for.

3. Notices served to the Opposite Parties 1 to 3. Opposite Parties 1 & 2 received notices, but as there is no representation on behalf of Opposite Parties 1 & 2. But 1^st Opposite Party has filed the counter and as there is no representation from the side of Opposite Parties 2 & 3, they were set exparte on 15.07.2014.

4. The Counter of the 1^st Opposite Party filed by Sri Panduranga Acharya in the capacity of Authorised Signatory of 1^st Opposite Party and stated as follows. The 1^st Opposite Party is the only trading facility platform over the internet under the domain name www.flipkart.com for providing platform/technology and/or other mechanism/services to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers etc. As the duty of the 1^st Opposite Party is completed and the complainant has got the mobile set there will be no liability on the part of 1^st Opposite Party and also there is no contract between the complainant and the 1^st Opposite Party. It is the responsibility of the 2^nd Opposite Party to provide a new mobile set. As the 1^st Opposite Party is the only the intermediatory between the purchaser and the manufacturer i.e. 2^nd Opposite Party, the complaint against the 1^st Opposite Party is not maintainable. The 1^st Opposite Party is not a retail trader of the products manufactured by the 2^nd Opposite Party manufacturer. The complainant has to prove the facts that the product which has delivered to him is giving the problems. There is any manufacturing defect it is the duty of the manufacturer or otherwise Service Centre of the 2^nd Opposite Party i.e. 3^rd Opposite Party’s duty. But in this matter as there is no responsibility on part of the 1^st Opposite Party, the complaint against 1^st Opposite Party is liable to be dismissed with costs.

5. On perusing the aforementioned pleadings of complainant and 1^st Opposite Party the following is the Forum has framed the following issues for consideration: a) Whether there is any deficiency of service on the part of 1^st Opposite Party; b) To what relief.

6. The complainant has filed his Evidence Affidavit and on his behalf Ex.A1 to A3 were marked. The Opposite Party filed Evidence Affidavit and except a resolution passed by the Board of Directors of Flipkart Internet Private Ltd., dt.25.4.2014, the 1^st Opposite Party has not filed any other document. The document filed by the 1^st Opposite Party is marked as Ex.B1.

7. Point Nos.1 & 2: The present complaint is filed by the complainant for refund of amount of Rs.9,399/- i.e. the value of the mobile set purchased from 2^nd Opposite Party through the 1^st Opposite Party vide Ex.A1. Ex.A1 is the Invoice dt. 21.09.2013 which reveals that the complainant has purchased Karbonn S5 Titanium While Mobile for Rs.9,399/-. Ex.A2 & A3 are the Job sheets pertaining to the Mobile set purchased by the complainant. In Ex.A2 Job Sheet dt. 24.03.2014 the problem with regarding to the mobile set is mentioned as “Touch not working properly”. In Ex.A3 the problem of the Mobile is mentioned as “IMIE Number problem with battery”.

8. On observing the Ex.A1 along with Ex.A2 & A3 which reveals that after purchasing the Mobile phone on 21.09.2013 the problem in the Mobile phone on 21.09.2013 the problem in the Mobile phone started on 24.03.2014 i.e. after 6 months 3 days. As seen from the version of the complainant vide Para No.7 of the complaint, it seems the complainant has handedover the defective mobile set finally to the 3^rd Opposite Party Service Centre and he has not received the same from 3^rd Opposite Party.

9. On perusal of the Ex.A2 & A3, we are of considered opinion that the 2^nd Opposite Party has provided a defective mobile set to the complainant through 1^st Opposite Party and as the repair was beyond control at present is with the 3^rd Opposite Party, Service Centre. Though the 1^st Opposite Party is stating that the Mobile set is handover to the complainant and the 1^st Opposite Party is only the mediating and the complaint against 1^st Opposite Party must be dismissed except the Ex.B1 Authorisation letter, 1^st Opposite Party has not furnished any other document to state that 1^st Opposite Party is not liable for any future transactions when once the goods were handover to the customers after internet transactions done.

10. Observing the Ex.A1, Invoice for purchasing the mobile set it reveals that on 11.05.2014 after the 1^st repair was done, the 3^rd Opposite Party has provided new mobile set to the complainant. So observing the version of the 1^st Opposite Party and the Ex.A1, Invoice along with Ex.A2 & A3 Job sheets it reveals that after the intermediary transactions was done it is the duty of the Opposite Parties 2 & 3 only to rectify the defects and hence the complaint against 1^st Opposite Party is dismissed.

11. Viewing the Ex.A1, A2 & A3 Job sheets we are of considered opinion that there is deficiency of service on part of Opposite Parties 2 & 3 for providing the defective mobile set and also for not returning the Mobile set after repair even after receiving the same on 16.06.2014. Hence we conclude that there is deficiency of service and unfair trade practice on part of Opposite Parties 2 & 3.

12. As per the para 11 above, we have confirmed that there is deficiency of service and unfair trade practice on part of Opposite Parties 2 & 3 viewing the Exhibits A1 to A3 we opine that the complaint is entitled for the refund of the amount of Rs.9,399/- along with interest @ 9% p.a. from 24.03.2014 i.e. Ex.A2 till realization . The Opposite Parties 2 & 3 are also liable to pay compensation of Rs.4,000/- to the complainant for causing mental agony. As compensation is awarded the complainant is not entitled for any costs. Accordingly point Nos.1 & 2 are answered.

13. In the result the Complaint is allowed in part. The complaint against 1^st Opposite Party is dismissed. The Opposite Parties 2 & 3 are jointly and severally liable to refund the amount of Rs.9,399/- along with interest at 9% p.a. from 24.03.2014 till realization. The Opposite Parties 2 & 3 are jointly and severally liable to pay Rs.4,000/- towards compensation to the complainant for causing mental agony. No order as to costs. Time for compliance of this order is 30 days from the date of receipt of this Order.

    Dictated to the Stenographer, transcribed by him, corrected by me and pronounced by us in the open Forum on this the 19^th day of March, 2015.

                                

           Sd/-                                                             Sd/-

    President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                                  Visakhapatnam

     

    APPENDIX OF EVIDENCE

     

     

    Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:        

      Sd/-                                                              Sd/-

President (FAC)                                                        Member                               

                                                                   District Consumer Forum – I,

                                                                              Visakhapatnam