SMT.MOLYKUTTY MATHEW : MEMBER

        This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019  for an order directing  the OPs to refund Rs.19,999/- the value of mobile phone to the complainant along with Rs.10,000/- as compensation for mental agony caused  to the complainant  and cost of the proceedings for the deficiency of service and unfair trade practice  on  the  part of OPs.

The brief  of the complaint :

    The  complainant had purchased a mobile phone (Realme narzo 60 5g) for an amount of Rs.19,999/- from 2^nd OP dtd.27/1/2024 online through 1^st OP and delivered the complainant  on 31/1/2024.  The product invoice bill is her husband’s name ie, Risal.C.K.  Thereafter the complainant used the mobile phone the phone it heats up and the battery drain quickly.  Immediately on 3/2/2024 the complainant approached the service centre of realme at Kannur.  Then the technician of the service centre noted the EMEI  number in the invoice and service centre receipt.  It clearly shows that the purchase date of the  phone is 14/10/2023 and the complainant only purchased the phone is 27/1/2024.  So the complainant stated the  same phone was previously used by someone else. The software was upgraded to fix the phone’s heating problem.  So the complainant was clearly cheated by the OPs which has sold the  defective used phone.  Then the  complainant filed a complaint with the OP’s customer care on 4/2/2024.  Then the OPs stated that they will solve the  problem by 8/2/2024.  Thereafter the  OP also ask to share customer service receipt and invoice of the received product through e mail on 10/2/2024.  Then the  OP stated that the matter would be resolved on14/2/2024.  But the repeated demands of the complainant the OPs are not ready to cure the defects of the mobile phone.  The act of OPs the complainant caused much mental agony  and financial loss .  So there is deficiency of service and unfair trade practice on the part of OPs.  Hence the complaint.

         After  filing this complaint  notice issued to both OPs.  After receiving notice 1^st OP appeared before the commission and filed his written version.  2^nd OP is  set exparte. 1^st OP contended that  he is only the function of the intermediary is limited to providing access to  a communication system over which information made available by 3^rd parties  transmitted or temporarily stored or hosted.  The return or refund  are offered and provided by the  seller of the products sold on 1^st OP’s platform.  The seller is responsible for the delivery of goods to the customers, customer satisfaction and post sales.  So the 1^st OP is being merely  an online intermediary cannot be held liable for alleged grievance of the complainant and there is no deficiency in service on the part of 1^st OP.  Then  the complaint may be dismissed.

      On the basis of the rival contentions by the pleadings the following  issues  were framed for consideration.

1. Whether there is  any deficiency of service   on the part of the opposite parties?
2. Whether the complainant is entitled for any relief?
3. Relief and cost.

     The evidence consists of the oral testimony of PW1  and Exts. A1 to A4 were marked. On  OP’s side Exts.B1  marked.

Issue No.1: 

         The  Complainant  adduced evidence before the commission by submitting  her chief affidavit in lieu of  her chief examination to the tune of the pleadings in the complaint and denying the  contentions in the version.  She  was cross examined as PW1  by 1^st OP. The 1^st OP was produced one document and marked as Ext.B1 , ie ,the press note issued by DIPP.  On complainant’s side she produced 4 documents marking them as Exts.A1 to A4.  According to the complainant as per Ext.A1 she had purchased a realme narzo 60 5g mobile phone for an amount of Rs.19,999/- on 27/1/2024 and delivered to the complainant on 31/1/2024 and the invoice issued by the OP in favour of the complainant’s husband Risal.C.K.  Ext.A2 is the  repair order issued by the service staff of realme  service centre at Kannur.  It clearly shows that the date of purchase dtd.14/10/2023 and the  description noted as fast battery draining, heating.  But the complainant had purchased the mobile phone only on 31/1/2024.  So the product is earlier sold to some other person and it contains a used one.  Ext.A3 is the whats app message send by the complainant to 1^st OP.  Ext.A4 is the reply send by the OP to the complainant and they stated that the problem will be resolved on 14/2/2024.   But the OPs are not ready to solve the problem.  According to the complainant failure to cure the defects of the mobile  phone the OPs are directly bound to redress the grievance caused to the complainant.   So the act of  OPs  the complainant caused much mental agony and financial loss.  So there is deficiency of service and unfair trade practice on the part of   OPs.   Hence the  issue No.1 is found in favour of the complainant and answered accordingly.

Issue No.2&3:

   As discussed above the OPs are not ready to replace the mobile  phone within the warranty period.  The complainant produced Exts.A1 to A4 documents which clearly shows that the mobile phone is  defective one.  In Ext.A2 it clearly  shows that the date of purchase of the mobile phone is 14/10/2023. But the complainant purchased the phone  through online(1^st OP) only  on31/1/2024.  Moreover  the phone is a defective one also.  Therefore we hold that the OPs 1&2 are jointly and severally liable to pay the value of  mobile phone  for Rs.19,999/- to the complainant along with Rs.5,000/- as compensation for mental agony caused to the complainant and Rs.2000/- as litigation cost. Thus the issue No.2&3 are also accordingly answered. 

          In the result the complaint is allowed in part  directing the Opposite parties 1 &2   are jointly and severally liable to pay the value of  mobile phone  for Rs.19,999/- to the complainant along with Rs.5,000/- as compensation for mental agony caused to the complainant and Rs.2000/- as litigation cost within  30 days of  receipt  of this order. In default the amount of Rs.19,999/- carries 12% interest per annum from the date of order till realization.  If the OPs fail to  comply the order, the complainant is at liberty to execute the order as  per the  provisions  of Consumer Protection Act 2019. After the said proceedings the opposite parties are at liberty to take back the mobile phone from the complainant.

Exts:

A1- purchase invoice

A2-Repair order

A3-whats app copy of e-mail

A4-Reply to e-mail

B1- copy of press note issued by DIPP

PW1-Nasriya.P.P- complainant

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR