DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

                  Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

                  Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

           Friday  the 14th    day of January 2022

                     C.C. 33/2017

Complainant

Jigish.S.N

Santhinilayam House

Kanankara Post, Chelannur Via

Kozhikode – 673 616.

Opposite Parties

1. Flip cart Pvt Ltd

        No.42/1243, Kacherakanahalli Village

        Jadigenahalli, Hobli

        Hoskote Taluk, Bangalore-560067.

       (By Adv.Sri. Jeril Babu.P.)

  2.   Bijeesh.M

       HCL Sonata Ltd , Vyttila

       Thammanam Road, Kochi.

3. Mob Net Mobiles,
4.  

Yamuna Arcade, IInd Floor,

Palayam, Kozhikode.

4. Mobile Lab, A1-Fahad Arcade

Sabha School Cross Road,

Kozhikode.

ORDER

By Smt. PRIYA.S.  – MEMBER

        This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

        2. The case of the complainant, in brief, is as follows:

           On 02/02/17 the complainant bought a mobile phone LeX 507 worth Rs.10,999/- from the 2^nd opposite party through the online platform of the 1^st opposite party. When the mobile phone’s display went out of order, the complainant approached the 3^rd opposite party which is  the authorised service centre.  The most important factor which attracted the complainant to this brand was that it has 555 service centres across India, and which the company had claimed by giving advertisements in the first page of  many leading dailies including Malayala Manorama. The 3^rd opposite party refused to entertain the complaint and said that they were not in a position to register the complaint. The reason they said for this was that the said company was a new one and they had not yet decided how to sort out the service issues. After 12 days,  the 3^rd opposite party registered the complaint. They promised to rectify the complaint within 7 days on payment. The  complainant is working as a Regional Manager in a marketing publishing company. On the 8^th day the complainant approached the  3^rd opposite party who told that  the mobile phone had not arrived. Again on the 5^th day the complainant approached the  3^rd opposite  party  who could not tell a specific date  on which the phone would be  made available. His request for a substitute mobile phone was also turned down. One month  later after paying the cost of damage, the complainant got his mobile phone. It was  not his original  golden colour phone, but it was a silver colour one. Within a  span of one month, the complainant had to suffer  inexplicable mental agony. The complainant’s job involves a lot of travel. He had to take leave at least 10 times in a month to visit the service centre.  

3. Within a few days, the phone developed fresh complaints. Since the complainant lost trust in the 3^rd opposite party he entrusted the mobile phone with the 4^th opposite party. They sorted out software problems. Later after weeks, the phone began to develop a  multitude of problems such as over heat, auto start, natural issues, auto switch off etc. The  4^th opposite party sent the mobile to the company. It took one month to replace the phone. The changed mobile phone started to show problems. As per the advice from the 4^th opposite party he believed that the problems would be settled after software updations. After software updation, the complainant lost the entire  Apps, documents and other data in the phone and the same issues  like overheat, network problems, low music volumes, loss of sound, auto restart etc continued. The 4^th opposite party advised the complainant to change the software. But that did not work. So the 4^th opposite party wanted to send the mobile phone back to the company. But they did not  specify the exact date of return of the mobile phone. In  eleven  month’s period, the  mobile phone was there  in the service centre for 85 days and that obstructed the complainant’s communication.

4. Now the complainant is not interested in using the said phone which is often faulty and hence he purchased a new one. He is entitled to get another model phone of the same company or to refund the purchase price. He is also seeking compensation of Rs.25,000/- for the  mental agony and monetary loss.  Hence the complaint.

5. The 1^st opposite party filed version.  The opposite parties  2 to 4  though received notice, remained absent and  were set ex-parte.

6.     The contentions of the 1^st opposite party, in brief, are as follows:

The 1^st opposite party is an  electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent customers. The business of the  1^st opposite party falls within the definition of an intermediary as defined under the IT Act. Since the 1^st opposite party has not charged any amount from the complainant for using their platform, the complainant does not become a consumer. The 1^st opposite party has not sold the product to the complainant  and has no role in providing warranty of the product. So the grievance if any, of the complainant is to be attended by the manufacturer and the service providers.  The relief claimed by the complainant is untenable and unreasonable and the 1^st opposite party is neither liable to provide refund/replacement of the product nor liable to pay any compensation to the complainant. So the 1^st opposite party prays to dismiss the complaint.  

7. The points that arise for determination in this case are:

    (1) Whether there was any deficiency of service  on the part of

             opposite parties, as alleged ?.

           (2) Reliefs and costs.

        8. Evidence in this case consists of oral evidence of PW1 and Ext.A1 to A5  on the side of the complainant. The contesting 1^st opposite party did not adduce any oral evidence. Exhibit B1 was marked.  

9. Heard.

10. Point No.1 :  In order to substantiate his case, the complainant got himself examined as PW1 who  filed proof affidavit  and deposed in terms of the averments in the complaint. Ext.A1 is the tax invoice/bill whereby the complainant purchased the handset. Ext.A5 clearly indicates that on 28/01/2016 there was a full front page advertisement in the Malayala Manorama daily which clearly  depicts the features of LeEco mobile phone. It was also written in the advertisement that there are 555 dedicated service centres  across India for the mobile phone.

11. Ext.A1 Retail/Tax invoice/bill reveals that the order for purchase of the mobile phone was through the 1^st opposite party. Ext.A3 cash bill  given by the 3^rd opposite party shows that Rs.3,286/- was paid by the complainant towards repair charges of the handset. Ext.A4 delivery note is the clear indication that the 3^rd opposite party had given a different mobile phone.  Since the exchanged mobile phone also started fresh problems, it was taken to the 4^th opposite party. Ext.A2 series service job sheet dated 05/07/2016 is a clear evidence supporting the same.

12. The grievance of the complainant is with respect to the defects in the handset  and the after sales services under the warranty clause. The 1^st opposite party, being a mere intermediary and not manufacturer/authorised service centre of the product,  is in no way liable. No deficiency of service can be attributed against the 1^st opposite party. In fact, there is no specific allegation against it in the complaint.  PW1 has categorically admitted in the cross examination that he has no grievance against the 1^st  opposite party and he does not want any relief against it.  So the 1^st the opposite party is liable to be exonerated.

13. Opposite parties 2 to 4 did not contest the complaint.  There is no contra evidence. The complainant purchased the mobile phone  and it started showing problems soon. One month later the 3^rd opposite party gave another mobile phone which was also defective. Then the complainant approached the 4^th opposite party. There also he did not get the desired result. Again the 4^th opposite party gave a mobile phone instead. This was also defective. In short, though the complainant bought mobile phone, he did not get the utility of the same due to the deficiency in service of the opposite parties 2 to 4.   There was gross negligence and deficiency of service on their part which resulted in grave mental agony and hardship and waste of time to the complainant. So the complainant is entitled to be compensated. Considering the entire facts and circumstances of the case, we are of the view that  a sum of Rs.12,000/- will be  reasonable  compensation in this case. Point found accordingly.

14. Point No.2  :  In the light of the finding of the above point, the complaint is disposed of as follows:

(a) CC.33/2017 is allowed in part.

(b) The opposite parties 2 to 4 are directed to pay a sum of Rs.12,000/- (Rupees Twelve thousand only) as compensation to the complainant for the loss, hardship and mental agony suffered.

(c ) The payment as aforestated shall be made  within 30 days of receipt of the copy of this order, failing which, the amount of Rs.12,000/- shall carry an interest of 6% per annum from the date of this order till actual payment.

(d) No order as to costs.

    Pronounced in  open Commission  on this the  14^th day January    2022.

Date of Filing: 28/01/2017.

    Sd/-                         Sd/                              Sd/-

PRESIDENT                 MEMBER                            MEMBER

APPENDIX

Exhibits for the Complainant :

Ext. A1 – Copy of Retail/Tax invoice/bill  

Ext. A2 series – Copy of the  series service job sheet dated 05/07/2016  

Ext. A3 –  Copy of  cash bill 

Ext. A4 – Copy of the delivery note  

 Ext.A5 – Copy of front page  full front page advertisement in the Malayala Manorama daily on 28/01/2016

Exhibit for the Opposite Parties

Ext. B1 – Copy of terms of use  

Witnesses for the Complainant

PW1 – Jigish.S.N - (Complainant)

     Sd/-                                Sd/-               Sd/-

PRESIDENT                         MEMBER          MEMBER

                                                        Forwarded By Order

                                                         Senior Superintendent