BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-58/2016

Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).

Byomakesh Panigrahi, aged about 31 years,

S/O- Late Daitary Panigrahi,

R/O- Hanuman Colony,P.s- Dhanupali,

Dist-Sambalpur.                                                                                 …..Complainant

Vrs.

1. Flipkart.com, C/O- Chief Executive Officer,

M/S WS Retail Services India Pvt. Ltd,

Ozone Manat Tech Park, No-56/18,

Hosur Road,Banalore,560068,

2.  ASUS Technology Pvt. Ltd.,

represented through Chief Executive officer,

At-402, 4^th floor,Supreme Chambers,

17/18 Shah Industrial Estate, Veera Desai Road,

Andheri West, Mumbai-400058.

3. ASUS Service Centre,

Represented through it’s Branch Manager,

Info Solution and Services Pvt Ltd, Plot No-100,

First Floor, Saheed Nagar, Bhubaneswar,Odisha-751007.……..O.P.

Counsels:-

1. For the Complainant:-    Sri Pritish Debata, Advocate & Associates.
2. For the O.P-1       :-          Sri A.K Sahu,Advocate & Associates.
3. For the O.P-2       :-          S.Naik, Advocate
4. For the O.P-3       :-          None

DATE OF HEARING : 03.03.2021, DATE OF ORDER : 22.03.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant in this case is a Govt. employee, O.P No-1 is the online trader of different articles in India. The O.P-2 is the producer and seller of mobile phones under the brand ASUS and the O.P-3 id the authorised service provider of the O.P-2. The Complainant had placed an order for ASUS Zenfone 4 A400CG Mobile handset via Flipkart.com  vide order no-OD001067390855072500 on dtd. 20.10.2014. He received the mobile bearing the IMEI no-352597066406488 on payment of Rs5499 delivered by the O.P-1. The said phone was having a warranty up to dtd.21.09.2015. After use of some months the Complainant on dtd. 15.01.2015found the display/LCD of the phone was not working properly and not visible at all. The Complainant intimated the matter to the O.P-3 and submitted it for repairing on dt 17.01.2015 for repairing as the mobile was under warranty.  But on dtd. 27.01.2015 the O.P-3 denied to repair the said mobile under warranty as the LCD Case cover does not comes under warranty. Due to the defective mobile the Complainant has to incurred some  incidental charges of Rs.5,000/- with O.p-3. On dtd.06.02.2015 the Complainant sent a notice through e-mail  to the customer support Executive  of the O.P-1 that the said problem in the mobile must be cover warranty  but no response made by the O.P-1. The mobile handset was carrying manufacturing defect and the O.P-2& 3 did not provide any post sale service in spite of the mobile was under warranty. The Act of the O.Ps are amounts to deficiency in service for which the Complainant sought certain relief from this commission.

The O.P-1 is a company engaged in providing trading/selling facilities over the internet through its websites www.flipkart.com and mobile application collectively referred as Flipkart Platform. The Flipkart Platform is an electronic which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers. The independent third party sellers use the platform to list, advertise and offer to sell their products to the users/buyer who visit the said platform. The O.P-1 is an intermediary here. The O.P-1 does not directly or indirectly sells any products on Flipkart platform rather those are sold by third parties. The O.P-1 is neither a trader nor a service provider. The Complainant has purchased the product from one of the sellers listed on Flipkart Platform which is evident from the copy of seller tax invoice which clearly states that the order is through Flipkart. Hence the present complaint is not maintainable for which it deserves to be dismissed.

The O.P-2 & 3, despite of service of notice he did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose the case as well setting the O.P-2 & 3 ex-parte in this case. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has placed an ordered to purchase a new ASUS mobile of model ASUS Zenfone 4 A400CG via Flipkart.com  vide order no-OD001067390855072500 on dtd. 20.10.2014. He received the mobile bearing the IMEI no-352597066406488 on payment of Rs.5,499/- with the  O.P-2 who is an online market place. The said mobile was delivered to the Complainant by the O.P-1 dtd. 20.10.2014 . Again it is seen that the O.P-1 is a company engaged in providing trading/selling facilities over the internet through its websites www.flipkart.com and mobile application collectively referred as Flipkart Platform. It provides an electronic Platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers. Also it is inferred that the business of the O.P-1 falls within the definition of an intermediary under section 2(1)(w) of the Information and Technology Act,2000. As an intermediary the O.P-1 is protected by the provisions of section 79 of I.T act-2000. The role of the O.P. No.-1 is limited to that of a facilitator, and the products available on the Website of the O.P. No.1 are sold by third party sellers.  The complainant placed an order for the Product, manufactured by the O.P. No.2, from the website of the O.P. No-1  on 20.10.2014 and the said product was delivered to the complainant. The product in question was delivered to the complainant in a sealed box as it was received from the manufacturer and/or the seller.  Again there is no privity of contact between the Complainant and the O.P-1. The Complainant has purchased the product from one of the sellers listed on Flipkart Platform which is evident from the copy of seller tax invoice which clearly states that the order is THRUOGH Flipkart. It has no liability to provide after sale service and he has no opportunity to ascertain whether the product in this case is defective or has manufacturing defects.  The complainant has specifically pleaded that the mobile handset was giving problem and it was not working properly and LCD display was damaged. The mobile was repaired on payment during the warranty period by the O.P-3 and the Complainant incurred incidental charges of Rs.5,000/-. The O.P. No. 2& 3 did not appear before this Commission therefore, allegations made by the Complainant regarding selling defective mobile hand set is reliable. The complainant was provided defective mobile hand set by the manufacturing company.  As the defect in the mobile hand set is continuing from the beginning and the defect had occurred in the mobile set within the warranty period but Ops were at least required to repair it free of charges. But the O.P-3 received service charges within the warranty period which amounts to deficiency in service on the part of O.P- 2 & 3. This matter has been well settled in the case of Pallavi vs. Apple India Pvt. Ltd. decided by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh on 7^th  September, 2017.Hence we order as under-:

ORDER.

Complaint filed by the complainant is accepted and O.P-2 & 3 are jointly and severally directed  

1. to refund the charges towards repair of mobile phone and all incidental charges of Rs. 5,000/- to the complainant along with interest @ 9% p.a. from the date of filing the complaint till payment within a period of 30 days from the date of receipt of the order passed by this Commission with fresh warranty of one year of the repaired parts;

2. the O.P-2 & 3 are further directed to pay Rs. 8,000/- (Eight Thousand) as lump sum amount for compensation and litigation expenses.

            Order pronounced in the open court today i.e, on 22^nd day of March-2019 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,

-sd/-(22.03.2021)                                                                                                       -sd/-(22.03.2021)

        Smt. S.Tripathy                                                                                                         Sri. D.K. Mahapatra

        MEMBER.(W)                                                                             PRESIDENT

                                                                                   Dictated and Corrected

                                                                             by me.

                                                                        -sd/-(22.03.2021)

                                                                                                Sri. D.K. Mahapatra

                                                                         PRESIDENT