Date of filing : 1.12.2017
Judgment : Dt.27.2.2018
Mr. Ayan Sinha, Member
This is a complaint, under Section 12 of the C. P. Act, 1986 made by Mainak Jotdar, S/o Bhabotosh Kumar Jotder, Panchdeep Apartment, Flat No.C/1, 37, Purbachal Main Road, P.S.-Garfa, Kolkata-700 078 against Flipkart India (P) Ltd., Ozone Manay Tech Park 56/18 and 55/09, 7th floor, Garvebhavi palya, Hosur Road, P.S.-Bammanahalli, Bangalore-560 068 (OP No.1), Electrum, B-6 Gali No.5 South Anarkali, Krishna Nagar, P.S.-Jagatpura, New Delhi-110 051 (OP No.2), Macintel Solutions, 14/1, Hazra Road, P.S.-Kalighat, Kolkata-700 026, (OP No.3), praying for direction upon OPs to replace the i phone by defect free new i phone or to refund the consideration money along with interest and compensation and a sum of Rs.20,000/- as litigation charges.
Facts in brief are that Complainant purchased one Apple i phone 5-S GOLD(16GB A 1530) under item I.D.No.1924542890004400 from OP No.2 for a price of Rs.18,999/- by placing order through Flipkart on 26.5.2017. In the first week of October, 2017, the camera of the phone was not working for which Complainant approached OP No.1 over phone and e-mail referring the same, upon which OP No.1 without taking any liability advised to contact OP No.2 from where the Complainant received the details of OP No.3 who is a service centre. The mechanic of OP No.3 after checking and repairing gave a report vide No.41795 dt.14.10.2017 that his repairing service is not available in India since the mobile set is not 5-S GOLD. But, it is 5 S SILVER. In the meantime Flipkart stated through e-mail that they have escalated the issue and assured to get resolved by 16.10.2017 11 a.m. One Mr. Hemant Rajak of M/s Flipkart Customer Support contacted Complainant and asked for all details regarding issues with the phone service centre’s report and job-sheet. When the issue was not resolved by 16.10.2017, the Complainant through e-mail dt.23.10.2017 to OP preferred for the refund.
The Complainant finding no other alternative issued a legal notice to the office of OP No.1 at Kolkata and other offices of vendor but neither of the offices sent proper reply to Complainant. Since the OPs did not take any steps to remove the manufacturing defect or to replace by a defect free set, Complainant filed this case.
Notices were served to OPs but none of the OPs appeared before this Forum by filing written version and so the case has proceeded ex-parte vide Order No.6 dt.15.2.2018. Complainant has filed affidavit-in-chief wherein he has reiterated the facts as mentioned in petition of complaint.
Main point for decision is to
- whether the Complainant is a consumer.
- Whether there is any unfair trade practice by OP.
- Whether there is any deficiency of service on the part of the OPs.
- Whether the defective Apple I phone was within warranty period?
- Whether the Complainant is entitled to the reliefs as prayed for?
Decision with reasons
On perusal of the documents filed by Complainant, it appears that Complainant purchased through on line an APPLE i PHONE 5 S GOLD, 16GB by placing an order on FLIPKART (OP No.1) and OP No.1 issued a TAX Invoice No.FOFL9DL18-00000317 dt.26.5.2017 for Rs.18,999/- clearly mentioning Complainant’s name, date and time Order No. and date order item ID, product sold by ELECTRUM, i.e. OP No.2 and the product specification mentioned as APPLE I Phone 5S(GOLD, 16GB) A 1530 and so it is clear that Complainant is a consumer and as such (i) answered accordingly. He has also submitted the online Tax Invoice issued by OP No.1 which is unsigned. An original carbon copy of service report No.41795 DT.14.10.2017 issued by OP No.3 is also submitted by Complainant which reveals that OP No.3 being the service centre has diagnosed and returned the product to Complainant with following details:-
- Camera not working as reported by Complainant.
- Service not available in India.
- Product detail i phone is 5S Silver 16GB
Also a document named “i Phone info” has been filed by Complainant from where it reveals that in the warranty summary clearly mentions “If a valid claim is under warranty, Apple will either repair, replace or refund your I phone at its own discretion”.
The Complainant has filed e-mail documents from where it appears he made several communications with the OPs and only OP No.1 Flipkart has given one reply from their customer service on 13.10.2017 asking Complainant for details of the complaint.
All the points are taken up together for the same of brevity and avoidance of repetition of facts. It is fact that Complainant had purchased an Apple I phone 5S GOLD, 16GB but he came to know that this i phone is 5 S Silver not 5 S Gold and from OP’s job sheet No.41795 dt.14.10.2017 service is not available in India. This happened when he approached OP No.3 being the Service Centre for non-working of his phone camera. This is definitely an unfair trade practice on behalf of the OPs. Since they have delivered 5S SILVER instead of 5S GOLD as mentioned in the Tax Invoice of Flipkart and was sold by OP No.2. Thereafter, all the OPs neglected to sort out the issue which is certainly a deficiency of service as such (ii) and (iii) answered accordingly.
The tax invoice clearly reveals that the phone was purchased on 26.5.2017 and the job sheet No.41795 dt.14.10.2017 reflects that the phone was defective and the service for the same is not available in India. So, there is no dispute that the phone was well within the warranty period and so (iv) answered accordingly.
Now when the product was defective and the service was not available in India as per the report of OP No.3 the authorized service centre, then why the OPs unnecessary wasted time instead of not solving Complainant’s grievance by replacing with a new i phone as per specifications mentioned in the earlier raised Tax Invoice or refund the money to the Complainant.
Since the allegations remain unchallenged and unrebutted, therefore, we hold that there is no other alternative than to accept the contention of the Complainant and the Complainant is entitled for the reliefs and (v) answered accordingly.
The Complainant has also prayed for compensation as may be determined by this Forum and a litigation cost of Rs.20,000/-.
In our view, if a direction can be given upon OPs to replace the i phone with a defect free new one to the Complainant or full refund to the Complainant alongwith a compensation of Rs.5,000/- and litigation cost of Rs.3,000/- justice would be served.
Hence,
ordered
CC/678/2017 and the same is allowed ex-parte in part with costs against the OPs.
The OPs are directed to replace the i phone with a new defect free i phone of same specifications as mentioned in the tax invoice No.FOFL93L18-00000317 Dt.26.5.2017 with free of delivery costs at Complainant’s address and the OPs are also directed to pay compensation of Rs.5,000/- and litigation cost of Rs.3,000/- to the Complainant within one month from the date of this order. In default to refund Rs.18,999/- to the Complainant within 45 days from the date of this order. Non complying of this order the entire amount shall carry interest @ 10% p.a. from the date of this order till full realization. The liabilities of OPs are joint and several. The Complainant is directed to handover the defective phone to OP upon receipt of the new one.
