BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case no. 389 of 2019
Date of Institution: 22.07.2019
Date of Decision: 18.10.2021
Pardeep Kumar, aged 38 years, resident of H. No.200, Sector 20 HUDA, Temple Laxmi Narayan, Sirsa, District Sirsa.
………Complainant.
Versus
- Flipkart Internet Private Limited, Ozone Manay Tech Park, # 56/18 & 55/09, 7th Floor, Garvebhavipalya, Hosur Road, Banglore- 560 068, through its Manager/ authorized signatory.
- Konde Products & Services Private Limited, 10th Floor, Regus Business Centre, Brigade IRV Genre Whitefield, Bangaluru, Karnataka- 560 066, through its Manager/ authorized signatory.
- HMD Global India, Pioneer Urban Square, Tower C, 5th Floor, Golf Course Extension Road, Sector 62, Gurugram-122 022, through its Manager/ authorized person.
- Sachdeva Sales Corporation, Old Civil Hospital Complex, Behind LIC Building, Sirsa, through its proprietor/ Partner.
……… Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SHRI JASWANT SINGH ………………. PRESIDENT
SMT. SUKHDEEP KAUR……………….. MEMBER
Present: Sh. M. K. Singla, Advocate for complainant.
Sh. Ajay Saini, Advocate for opposite parties No.1 & 2.
Opposite parties no.3 & 4 exparte.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 ( after amendment as under Section 35 of the C.P. Act, 2019) against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that op no.1 is an online shopping website and offers delivery of different type of electrical goods, mobiles, tabs, laptop etc. The complainant placed an order with op no.1 for purchase of Nokia 6.1 Plus Black TA-1083 64 GB + 4GB for a sum of Rs.14,999/- and on this order of complainant, the op no.2 sold and supplied a mobile handset to the complainant vide invoice dated 12.10.2018. The complainant was given one year warranty of this mobile. That after few days of its purchase, the mobile started giving trouble to the complainant as it failed to catch the range from mobile towers and he thought that this problem is due to the network problem, but as more time passed, the said problem continued in the mobile, rather the same aggravated with the passage of time. The complainant started facing difficulty in making and receiving calls. It is further averred that on increase of this defect in the mobile, he made a complaint on Filpkart toll free number which was registered as complaint No. IN1906141318384361321 dated 14.6.2019 and complainant was required to take mobile to op no.4. That thereafter, complainant went to op no.4 with mobile and reported the above defect in the mobile, but he was told that warranty on this mobile cannot be given and he was given a message about payment of Rs.8306.14 plus taxes for repair of mobile and on 15.6.2019, mobile was returned to the complainant by op no.3 without removing the problem and now the mobile is lying in defective condition with the complainant. The complainant is unable to make and receive calls from this mobile. It is further averred that due to refusal of op no.4 to remove the defects in the mobile, he is unable to enjoy the mobile freely and completely and thus, he is being deprived of to make its best use for which he had incurred huge amount and mobile is still in defective condition. That mobile is manufactured by op no.3 and in this manner, op no.3 has manufactured an old and defective mobile and has sold and supplied a defective mobile to complainant through ops no.1 and 2 and op no.4 has refused to give proper service to the complainant and have indulged themselves in unfair trade practice and have committed gross deficiency in service towards the complainant. The complainant has suffered unnecessary harassment and mental agony due to act and conduct of ops. Hence, this complaint.
2. On notice, opposite parties no.1 and 2 appeared. Op no.l filed written version raising certain preliminary objections regarding suppression of true and material facts and that op no.1 provides online market place platform to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches, clothes, footwear, healthcare and personal products, home appliances and electronics etc. That said Flipkart Platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end cuistomers. The independent third party sellers use the Flipkart to list, advertise and offer to sell their products to the users/ buyer who visit the Flipart platform. Once a buyer accepts the offer of sale of the products made by the third party seller on the Flipkart Platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart Platform. It is further submitted that business of op no.1 falls within the definition of an “intermediary” under Section 2 (1) (w) of the Information Technology Act, 2000 and op no.1 is protected by the provisions of Section 79 of the Information Technology Act, 2000. It is further submitted that sellers are separate entity being controlled and managed by different persons/ stakeholders. The answering op no.1 doesw not directly or indirectly sells any products on Flipkart platform. Rather, all the products on Flipkart Platform are sold by third party sellers, who avail of the online marketplace services provided by op no.1, on terms decided by the respective sellers only. The complainant has wrongly arrayed op no.1 in the present complaint. That any kind of assurance, whether in terms of warranty on the products, price, discounts, promotional offers, after sale services or otherwise are offered and provided by the manufacturer of the products sold on Flipkart platform. In addition to manufacturer warranty, the seller of product provides 10 days replacement policy on selected product as per its own terms. The op no.1 neither offers nor provides any assurance and/ or offers warranty to the end buyers of the product. It is further submitted that the user(s) of the Flipkart Platform are bound by the terms of use enumerated on the flipkart platform which clearly states that the contract of sale is a bipartite contract between the buyer and seller only and op no.1 is not a party to it. It is further submitted that complainant has purchased the product from one of the sellers listed on the Flipkart Platform, which is also evidenced from the copy of seller tax invoice produced by complainant himself. The op no.1 is not involved in the entire transaction executed between seller and complainant. There is no privity of contract between complainant and op no.1. It is further submitted that the grievance of complainant is with respect to the alleged manufacturing defects in the goods and denial of after sale services by op no.3. The grievance should have been only against the manufacturer and authorized service centre of the product for not providing after sale services to its customers. That any grievance subsequent to expiry of 10 days return/ replacement period comes within purview of manufacturer warranty period. The complainant has not made any specific allegation against op no.1 and entire complaint is nothing but specific to op no.3 and op no.4 for non satisfactory after sale services. The op no.1 being an intermediary has duly suggested the complainant to approach the manufacturer and authorized service center as the alleged manufacturing defect was raised within purview of manufacturer warranty period. On merits, the pleas of preliminary objections are reiterated, contents of complaint are denied and prayer for dismissal of complaint made.
3. Op no.2 also filed written version raising certain preliminary objections that entire complaint is nothing but specific and centric to op no.3 and op no.4 only and same is evident from bare reading of present complaint. Further, the complainant has expressly mentioned that product is manufactured by op no.3, thus complainant has wrongly impleaded op no.2 and complaint deserves to be dismissed against op no.2 at the first instance. That complainant has suppressed true and material facts and has not approached with clean hands. The complainant has intentionally not mentioned the fact that he allegedly faced issues with the product after using the product for eight months and there is no concrete evidence of any issue with the product. The product was not defective when sold to complainant in a seal packed box. The op no.2 is carrying on the business of sale of goods manufactured/ produced by others. The op no.2 is a registered seller on the website “flipkart.com” and sells products of others through the website. The op no.2 has acquired good market reputation for its range of products offered and for its exceptional customer support. It is further submitted that op no.2 is not engaged in sale of any goods manufactured or produced by its own. The op no.2 has a separate and distinct legal existence from the manufacturer i.e. op no.3 and cannot be held liable for any alleged manufacturing defects in the product. That complaint is not maintainable either in law or on facts and is liable to be dismissed in limini as it does not show any cause of action against op no.3. The grievance of complainant is with respect to alleged manufacturing defects in the goods and dissatisfactory after sale services by manufacturer and grievance should have been only against the manufacturer op no.3 and/ or its authorized service center op no.4 of the product for not fulfilling their obligation towards its customers. The op no.2 being mere reseller and not the manufacturer of the product sold to the complainant, in no way, assumes liability for any alleged defect in the product delivered to the complainant in a sealed pack box. The op no.2 is not owned/ controlled/ associated with the manufacturer/ authorized service center in the present complaint. The manufacturer of the product provides standard one year warranty on its product and is liable to resolve any grievance raised by the users within the warranty period subject to its warranty terms. The op no.2 does not have any responsibility to provide after sale service under manufacturer’s warranty terms. However, it is important to mention here that irrespective of manufacturer warranty, as a goodwill gesture, the op no.2 provides 10 days return/ replacement policy within which the customer can raise the request for the refund/ replacement in case there is any issue with the product. Further, any grievance subsequent to expiry of 10 days return/ replacement period comes within purview of manufacturer warranty period. However, the complainant has used the product for 8 months and then contacted the op no.4 alleging defects in the product. Thus, admittedly the product had crossed 10 days seller’s replacement warranty long way back and thus, the product was only covered under manufacturer warranty clause. Hence, only op no.3 can be held liable for alleged denial of after sale services by op no.4 who was appointed by op no.3. It is further submitted that there has been no dispute contemplated under the Consumer Protection Act between the complainant and op no.2 as op no.2 has delivered the product in sealed packed condition to the complainant. It is not the case of selling the wrong product or tampered product. On merits, the pleas taken in the preliminary objections are reiterated, the contents of complaint are denied and prayer for dismissal of complaint made.
4. Op no.3 did not appear despite issuance of notice through registered cover and since notice sent through registered cover not received back and none appeared on behalf of op no.3 and therefore, op no.3 was proceeded against exparte.
5. Op no.4 also failed to appear despite due service of notice and therefore, op no.4 was also proceeded against exparte.
6. The complainant has tendered in evidence his affidavit Ex.C1, copy of invoice dated 12.10.2018 Ex.C2, copy of service job sheet Ex.C3, copy of text message dated 15.6.2019 Ex.C4, copy of text message Ex.C5, copy of product details Ex.C6 and copy of adhar card Ex.C7.
7. Op no.1 has tendered in evidence affidavit of Mr. Pradeep Reddy authorized signatory of op no.1 as Ex.R1.
8. Op no.2 has tendered in evidence affidavit of Mr. Ankush Agarwalla authorized signatory of op no.2 as Ex.R2.
9. We have heard learned counsel for complainant as well as learned counsel for ops no.1 and 2. Written arguments on behalf of op no.1 and op no.2 have also been filed and we have also gone through the same and have also perused the case file carefully.
10. The case of the complainant is that on 12.10.2018 complainant had purchased mobile phone make Nokia 6.1 Plus for an amount of Rs.14,999/- through flipkart and Konde Products & Service Private Ltd. i.e. ops no.1 and 2. The complainant has placed on copy of invoice dated 12.10.2018 in this regard as Ex.C2. The complainant was given one year warranty on this mobile phone and during the warranty period, the mobile became defective as complainant is unable to make and receive calls from the mobile in question. The defect has been intimated to op no.4 i.e. service centre of op no.3 and also to the op no.3 being manufacturer of the mobile in question and mobile in question was deposited with op no.4 and complainant has also placed on file copy of service job sheet dated 15.6.2019 as Ex.C3 from which it is evident that mobile suffered defects in the warranty period of one year. The complainant received a message from op no.4 that repair cost of his mobile is Rs.8306.14 and approval of complainant was sought in this regard and thereafter the mobile was returned to the complainant without removing the defects. Since the mobile in question was within warranty period and it developed defects in warranty period, therefore, op no.4 was under legal obligation to remove defects in the mobile without any consideration but op no.4 service centre of op no.3 has illegally and wrongly demanded an amount of Rs.8306.14 from the complainant for repair of the mobile in question. The ops no.3 and 4 have not even bothered to appear before this Commission despite issuance of notices and they opted to be proceeded against exparte. Therefore, the pleadings and evidence led by complainant against ops no.3 and 4 goes as unchallenged and unrebutted. The act of ops no.3 and 4 shows their careless and irresponsible attitude. Since ops no.3 and 4 failed to rectify the defect which arose within warranty period, they have committed deficiency in service towards the complainant. The defect in the mobile was pointed out by complainant to op no.4 on 15.6.2019 and as ops no.3 and 4 have failed to redress the grievance of complainant, the complainant filed the present complaint on 22.7.2019 and since then mobile is lying in defective condition and as long period has elapsed, now at this stage direction to ops no.3 and 4 regarding repair of mobile in question will not be justified and complainant is entitled to refund of the amount of the mobile in question. In so far as liability of ops no.1 and 2 is concerned, the complainant placed order for purchase of mobile in question to op no.1 and delivery of mobile was got made by op no.1 to the complainant and complainant also used the mobile some times, so no liability of any type of op no.1 is made out. However, op no.2 is seller of the product in question of the manufacturing company, therefore, op no.2 is also responsible to get refund of the amount of mobile in question from manufacturing company i.e. op no.3 for payment of the same to the complainant.
11. In view of our above discussion, we allow the present complaint against ops no.2 to 4 and direct them to make refund of the amount of Rs.14,999/- i.e. price of mobile to the complainant within a period of 45 days from the date of receipt of copy of this order. The ops no. 2 re-seller of the product of op no.3 & 4 i.e. service centre of op no.3 are liable to get refund of the amount from op no.3 payable to the complainant, failing which all the ops no.2 to 4 will be jointly and severally liable to pay the said amount of Rs.14,999/- to the complainant alongwith interest @9% per annum from the date of order till actual payment. We also direct ops no.2 to 4 to pay a sum of Rs.5000/- as composite compensation for harassment and litigation expenses to the complainant. However, complaint qua op no.1 stands dismissed. A copy of this order be supplied to the parties as per rules and file be consigned to the record.
Announced in open Commission. Member President,
Dated:18.10.2021. District Consumer Disputes
Redressal Commission, Sirsa.
