ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service by OP1 and in supplying a defective mobile manufactured by OP2 and for refund of the cost of the mobile i.e., Rs.3,600/- and also refund of Rs.3,000/- as advertised by OP as cash back offer and for compensation of Rs.30,000/- for making him to undergo mental agony and harassment and for other reliefs as the Commission deems fit under the circumstance.

2.      The brief facts of the complaint are that;

The OP2 is the manufacturer of Micromax Bharath 2 Mobile.  OP1 is the platform to sell the said product.  Complainant placed order through OP1 for the mobile Micromax Bharath 2+ manufactured by OP2 on 30^th June 2018 and the same was delivered on 02.07.2018.  the said product is having a warranty of one year.

3.      After receiving the said product within 5 or 6 days there was an issue with operating system of the phone and it was very slow.  It is used to hang frequently while accessing the basic applications, even though the said device was a brand new one. The phone sound system was not working properly and it got corrected while getting incoming calls. There was no ringtone played during the day time.  Only it was vibrating. Even while doing whatsapp message, the phone use to get hanged. It was also getting heated within a short time frame, which was not expected of a brand new phone.  He requested for the replacement or refund with the OP1.  Whereas OP1 deactivated his account on the ground that he has returned many products earlier.  

4.      He had returned intech aqua 8 polycotton combo 3 scarf stoles duppata, soft summer women’s scarf, as the products were wrong delivered and of cheap quality product and he has a right to reject the product and return the product to the manufacturer and supplier.  He had not return any single product which is of a good quality. The product i.e., the mobile supplied by OP1 which was manufactured by OP2 was defective and hence he returned the same within ten days and he had all right to return the product with written request on the online channel, which OP1 cannot deactivate.  They cannot revoke the right of the customer for a defective and unspecified product.  Email correspondences were also held and he lodged a complaint before the National Consumer Helpline, whereas, OPs did not respond to the same. Hence he had to file this complaint and prayed the commission to allow the same.

5.      Upon the service of notice, OP1 appeared before the Commission through its advocate and notice to OP2 not served and the complainant failed to take steps against OP2 inspite of giving sufficient opportunity and hence complaint against OP2 is dismissed.

6.      In the version filed by OP1, complainant has mistakenly considered him as a seller of the product, whereas it is merely an online intermediary providing a common platform for buyer and seller over the internet through its website. It is an online marketing platform to facilitate the transactions electronic, commerce for various goods buy and between respective sellers and buyers. The seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance with the delivery terms. As per the terms for sale displayed by the seller on the flipkart platform.

7.      In this complaint, complainant alleged to have contacted OP1 within 10 days from the sales for replacement policy which is completely wrong. Complainant contacted OP1 for the first time on 21.07.2018 raising the issue with the product after the sellers 10 days replacement policy. There is no evidence whatever to show that he raised the replacement request within 10 days.  By the time complainant raised request for replacement by contacting OP1 his account was already blacklisted, due to unfair use of the offer under flipkart token of apology and same practice under many other linked accounts also.

8.      As an exceptional case, as the sellers 10 days policy even though expired, OP1 agreed to refund the consideration to the complainant. However the complainant was dishonest with an intention of extorting money from OP1 and demanded exorbitant amount for no reasons.  This was made known to the complainant himself and further the seller can only refund the amount and not OP1.

9.      In view of the exorbitant demand of the complainant, OP1 did not agree to entertain the illegal demands of the complainant. The role of the OP1 is intermediary.  OP1 is not involved in the entire transaction except providing online transaction. Government of India has made a policy in respect of the online transaction.  The same has been published in its website and there is a bipartite contract between the buyer and the seller.  Denying all the allegations made against it, prayed to dismiss the same.

10.    In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

11.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

12.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  The complainant has produced Ex.P1 the tax invoice, wherein he has purchased Micromax Bharat 2+ mobile with one year warranty for mobile and six months for accessories. He has paid Rs.3,020/- for the said invoice dated 30.06.2018, Email correspondences have also been made and OP1 has been informed by the complainant regarding the slow and not responding of OS system of the phone, phone corrupted while incoming calls coming, and there will be no ringing tone and only vibrating mode.  Inspite of getting it fixed, not cooperating for the configuration and there an error as operation not allowed.  While doing whatsapp also the phone used to get hanged and it used to get heated very much within the time frame for 5 to 10 minutes.  

13.   Since these issues have been escalated to OP1, ultimately as per the averments made in the version by OP1, it had agreed to refund the amount as an extra ordinary case even though the time limit of 10 days for replacement has already over.

14.   When this is taken into consideration, and further the email correspondences, it becomes clear that there is manufacturing defect in the mobile manufactured produced by OP2 sold through OP1 platform.  

15.   In view of this we hold that there is deficiency on the part of OP1 and 2 and OP1 is bound to refund the cost of the mobile set i.e., 3,020/- along with interest at 12% p.a., from the date of sale 30.06.2018 and compensation of Rs.2,000/- for causing mental agony and hardship and Rs.2,000/- towards litigation expenses.  OP1 to pay the said amount within 30 days and to recover the same from OP2.   Hence Answer Point No.1 in the affirmative and point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP1 is directed to refund the cost of the mobile set i.e., 3,020/- along with interest at 12% p.a., from the date of sale 30.06.2018 to till the payment of the entire amount.
3. OP1 is further directed to pay a sum of Rs.2,000/- towards causing mental agony and hardship and Rs.2,000/- towards litigation expenses to the complainant.
4. OP1 is further directed to pay the above said amount to the complainant within 30 days from the date of receipt of this order and recover the same from the OP2.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 28^TH DAY OF MARCH 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

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

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Tax invoice

Ex P2: Email correspondences

Ex. P3: Copy of the complaint sent consumer affairs department with details

Ex P4: Copy of the cash back offer details

Ex P5:CD in respect of the conversation with OPPOSITE PARTY’s representative after the complaint is filed before this Forum

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

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                 MEMBER                       PRESIDENT

HAV*