Punjab

Faridkot

CC/14/149

Major Shirsath - Complainant(s)

Versus

Flipkart.com - Opp.Party(s)

Ashu Mittal

16 Apr 2015

ORDER

      DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        149

Date of Institution :  4.11.2014

Date of Decision :    16.04.2015

 

Major Shirsath Machinda R. Qr No. 608 C, Near TCP No. 2, Military Station, Faridkot.

   .....Complainant

Versus

1.  Flipkart.com, No. 447/B, 1^st A Cross, 12^th Main, 4^th Block, Opposite BSNL Telephone Exchange, Koramangala, Bengalore-560034 through Proprietor/MD.
2.  M/s VM Enterprises, Opposite Shree Sham Hospital Moga Road, Kotkapura, Tehsil Kotkapura. District Faridkot through Proprietor/agent.
3.  Micromax House. 90B, Sector 18, Gurgaon through MD.

                                      ....Opposite Parties(Ops)

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:           Sh. Ashwani Kumar Mehta, President,

Smt Parampal Kaur, Member,

Sh P Singla, Member.

Present:        Sh Ashu Mittal,  Ld Counsel for complainant,

 Sh Vipan Tayal, Ld Counsel for OP-1,

 OP-2 & 3 Exparte.

 

(A K Mehta, President)

                                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Flipkart.com etc/ Ops seeking directions to Ops to replace the defective mobile set make Micromax Model No. Canvas 4A210 (grey) with new one of same model or to refund the price of mobile with interest and for also directing to Ops to pay Rs 50,000/- as compensation for mental agony and harassment etc.

2                                          Briefly stated, the case of the complainant is that complainant purchased a mobile hand set make Micromax from OP-1 for Rs 18,499/- vide invoice dt 16.08.2013 for his personal use through online and OP-3 gave warrantee for one year against any defect within one year of its purchase; that Op-3 is the manufacturer and OP-2 is the authorized care centre of the OP-3; that in the month of August 2014, the said mobile set stopped functioning and its display was not working and then on 6.08.2014, complainant approached OP-2, who assured complainant that defect would be removed within 3-4 days and on 12.08.2014, OP-2 returned the said mobile hand set after setting it right; that on 13.08.2014, said mobile set again became defective and its display was not working and the mother board of the mobile was also got defective and complainant approached OP-2 and again OP-2 kept the said mobile set and told complainant that it would be set right within week; that on 19.08.2014, employee of the complainant visited OP-2, but OP-2 again told complainant that there is major defect in the said mobile hand set and same has been  sent to OP-3 for repair and told him to visit after 15 days and OP-2 issued job sheet dt 19.08.2014 and thereafter, complainant again visited Op-2 and OP-2 again told complainant that the said mobile set has not been sent by OP-3 and told him to visit after some days and after that complainant visited OP-2 many times, but each time, OP-2 put off the complainant on one pretext or the other for about 2 ½ months; that complainant is serving in Army and has to  remain away from home and mobile is the only medium to be in contact with family, relatives, friends and colleagues on duty and thus, Ops effected social life of complainant and due to non availability of mobile set, complainant could not use internet and all this amounts to trade mal practice and deficiency on the part of Ops, which has caused harassment and mental agony to complainant and he has prayed for directing Ops to replace the defective mobile set with new one of same model or to refund the price of mobile with interest and for also directing Ops to pay Rs 50,000/- as compensation for mental agony and harassment etc and to pay the cost of litigation. Hence, the complaint.

3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 5.11.2014, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                    On receipt of the notice, Op-1 filed reply taking preliminary objection that OP-1 is not same as Flipkart as mentioned in the complaint and OP-1 is an online reseller and is one of the registered sellers on the marketplace website www.flipkart.com and has acquired good market reputation for its range of products and exceptional customer support; that complaint has been filed with malafide intentions of harassing OP-1 and is devoid of merits and averments given in complaint do not cover the complete facts and are made only with the intentions to defame the answering OP; that grievance of the complainant should have been only against the manufacturer as the product carries manufacturer’s warranty; that relief sought is unreasonable and unsustainable and is liable to be dismissed in limine against answering OP. However, on merits, OP-1 asserted that answering OP is not the manufacturer of product, but is mere reseller and  warranty is extended on the product by OP-3 and in case of any manufacturing defect, complainant is required to  approach OP-3 or OP-2 who is authorized service centre appointed by OP-3; that product was delivered to complainant in a sealed box condition as it was received from the manufacturer/OP-3; that OP-1 has denied all the allegations levelled by complainant being incorrect and prayed for dismissal of complaint with costs.

5                               On receipt of the notice, OP-2 filed reply taking preliminary objections that complaint is not maintainable in the present form and is liable to be dismissed; that complainant has no cause of action to file the present complaint and complainant has not come to the court with clean hands and has concealed the true facts as on receipt of complaint from complainant regarding mobile hand set in question, Op-2 immediately sent the mobile set to Chandigarh for repair, but it was received back and it was not charging and then, OP-2 contacted Mr Ajay Shapsy, A S M Micromax, Mobile Zone, Near Janta Nagar, Gill Road, Ludhiana and handed over the said mobile vide job sheet dt 1.11.2014; that after  removal of defects, mobile hand set in question was received back in January 2015 and is in proper and completely working condition now and the answering OP has told the complainant to collect his mobile hand set from the answering OP, but the complainant is not collecting the same inspite of repeated requests of the answering OP with malafide intention to extract money from the Op and he has no right to do so; that there is no negligence or trade mal practice on the part of answering OP as answering OP is ready to hand over the mobile hand set in question to complainant in running condition even before this Forum in correct working condition. However, on merits, Op-2 reiterated the pleadings taken in preliminary objections and asserted that no cause of action arises against answering OP and complaint filed by complainant is wrong and incorrect and complainant is not entitled to any relief ; that there is no deficiency in service on the part of answering opposite parties; that all other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against the answering opposite party. Notice was issued to OP-3 through RC on 14.11.2014 and OP-3 was declared to have been duly served through RC containing notice and copy of complaint and as none appeared in the Forum on behalf of Ops on the date fixed, therefore, Opposite Party no. 3 was proceeded against ex parte vide order dated 20.01.2015.

 

6                                                                                   Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 and C-3 and then, closed the evidence.

7                                                                     In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Anushree Saksena Ex OP-1/1 and document Ex OP-1/2 and closed the evidence. During the pendency of the complaint, OP-2 also left the complaint in the midway and was proceeded against exparte vide detailed order dated 13.03.2015

8                                                                    We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

9                                                                    The  Ld  Counsel for complainant  contended  that complainant purchased  mobile phone in  question from OP-3,  who  is  manufacturer and OP-1 Company  only facilitates  the sale as complainant  visited the OP-1  Company   website and directly dealt with OP-3 Company online and mobile phone in question was delivered by OP-3. He contended that the mobile phone developed defect and complainant contacted  OP-2, who  is  a Service Provider  of   the OP-3  company  at  Kotkapura  and    the  said Service Provider took  the mobile phone  in  question   but  returned  the  same   after   6  months   without  providing  any  alternative  mobile  to  the  complainant.             He  contended that  inspite of  repeated  visits and requests to OP-2, the mobile phone was not  repaired  nor  returned  to  the  complainant  and  it  caused  harassment                         and mental  agony to the complainant and complainant  had to  file the complaint  in hand against the OPs and only then, OP-2  returned  the mobile phone in question to the complainant in the Forum after repairing it.  He  contended  that  OP-2  Service  Provider kept the mobile phone in question for more than six months without providing any alternative mobile phone and it caused harassment and mental agony to the complainant as he is serving in Army and urgently requires the mobile phone to remain in contact with his family and as such, OP-2 and 3 are required to be burdened with compensation and litigation expenses and warranty is also liable to be extended for the period OP-2 kept the mobile phone in question in its custody and as such, complaint is required to be allowed.

10                                            The Ld Counsel for OP-2 contended that mobile phone in question was repaired by OP-2 and it was handed over to the complainant in the Forum after repair and as such, no cause of action now arises against the OP-2 and OP-3 and complaint is liable to be dismissed though OP-2 have no objection if warranty may be extended for the period the mobile phone in question remained in the custody of OP-2 but OP-2 is not liable for any compensation and litigation expenses as it returned the mobile phone in question after repair.

11                                               Ld Counsel for OP-1/ Company contended that OP-1/Company is not liable in the complaint as only website of OP-1 Company was used for purchase of mobile phone in question and OP-1/Company has been arrayed as party as the mobile phone in question was purchased through the website of OP-1 Company, otherwise no relief has been sought against the OP-1 Company.

12                                             It is admitted fact that complainant through website of OP-1, purchased the mobile phone in question from OP-3 Company. It is also admitted fact that mobile phone in question developed defect and complainant contacted OP-2/service provider of the OP-3 Company and handed over the mobile set to OP-2 in August 2014. OP-2/Service Provider did not repair the mobile phone in question immediately nor handed over any alternative or standby mobile to the complainant inspite of repeated visits and requests and it must have caused harassment and mental agony to the complainant and due to this reason, complainant filed the complaint in hand in the Forum and only during the pendency of the complaint, OP-2/Service Provider returned the mobile phone in question after repair to the complainant in February 2015. Complainant is an Army Man and as such, requires the mobile phone to remain in touch with the family but OP-2/Service Provider did not provide any alternative mobile to the complainant when it kept the mobile phone in question for repair, rather kept the mobile phone in question for a long period of 6 months for repair. Otherwise, even complainant admitted that OP-1/Company is not liable in the complaint as only website of the OP-1/Company was used for purchase of mobile of OP-3/Company through online mode. As such, OP-2 and OP-3 only are liable for compensation for causing harassment and mental agony to the complainant and complainant is also entitled to extension of warranty period.

13                                  Complainant has made statement in the Forum that he purchased the mobile phone in question and when it developed defect, he handed over the mobile set to OP-2/Service Provider in August 2014 for repair, but OP-2 did not return the mobile phone to him inspite of many visits and returned the said mobile to him only in the Forum on 10.02.2015 and as such, Ops are liable for damages and expenses and warranty is also liable to be extended. Sh Sumit Kumar/representative of OP-2 made statement before the Forum that complainant handed over the mobile phone in question to Service Centre/OP-2 in August 2014 for repair and after repair, OP-2 has handed over the said phone to complainant in the Forum on 10.02.2015. It was further stated that OP-2 is also ready to extend the warranty period of mobile for the period it remained in the custody of OP-2.

14                                         In the light of above discussion and in view of statements of complainant and OP-2, the complaint is allowed partly against OP-2 and OP-3 and warranty period of mobile phone in question is extended for 6 months from February 2015. OP-2 and OP-3 are also burdened to pay Rs 2000/-as compensation and Rs 1000/-as litigation expenses to the complainant. OP-2 and OP-3 are directed to comply with the order within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

Announced in open Forum:

Dated: 16.04.2015

Member                 Member             President         (Parampal Kaur)           (P Singla)          (A K Mehta)