BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case no. 53 of 2020
Date of Institution: 27.01.2020
Date of Decision: 08.11.2021
Rakesh Bajaj, aged 56 years, son of Shri Narinder Nath, resident of 15/156/4, Bansal Colony, 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.
- iQor Global Services India Pvt. Ltd., Shop No.5, Ground Floor, Suncity Mall, Delhi Road, Hisar, through its Manager/ Incharge.
- Apple India Private Limited, 19 Floor, Concorde Tower C, UB City No.24, Vittal Mallya Road, Bangalore- 560 001, through its Manager.
……… Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SHRI JASWANT SINGH ………………. PRESIDENT
SMT. SUKHDEEP KAUR……………….. MEMBER
Present: Sh. Ravinder Goyal, Advocate for complainant.
Sh. A. S. Kalra, Advocate for opposite parties No.1 & 3.
Opposite party no.2 given up.
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 on 15.10.2018, complainant had purchased a new Apple I6 (32 GB) mobile phone from op no.1 through online order for a sum of Rs.23,999/-. At that time, complainant was given one year complete warranty about the mobile in question. That on 9.10.2019, the mobile developed defects as same used to go off. It is further averred that on noticing these defects in the mobile, complainant visited op no.2 being authorized service centre of op no.3 and reported the defects to it, whereupon after inspection, op no.2 told him that same cannot be repaired as it is having manufacturing defect. That now the said mobile is lying in dead stopped condition with the complainant and complainant is unable to use the same and he is being deprived of to make its best use for which he had incurred huge amount. That the mobile is manufactured by op no.3 which has manufactured an old and defective mobile and has sold to the complainant and op no.2 has refused to give proper service to the complainant. Thus, the ops are indulged in unfair trade practice and have committed gross deficiency in service towards the complainant thereby causing unnecessary harassment and mental agony to the complainant. Hence, this complaint.
2. On notice, opposite parties no.1 and 3 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 customers. 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 does 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 online marketplace services provided by op no.1, on terms decided by the respective sellers only. That answering op is not involved in the entire transaction executed between the seller and complainant. There is no privity of contract between complainant and op no.1. The complainant has wrongly arrayed op no.1 in the present complaint. On merits, it is submitted that product purchased by complainant was manufactured by op no.3 and grievances of complainant are related with op no.2 and op no.3. It is a settled proposition of law that liability for defect in the product or after sale services issues rests with manufacturer i.e. op no.3 and the service center op no.2. It is further submitted that complainant has used the mobile for long period. The replacement or exchange is only provided by the manufacturer of the product and not by answering op. The complainant has not even raised any specific grievance against answering op and prayer for dismissal of complaint has been made.
3. Op no.3 filed separate written version taking certain preliminary objections. It is submitted that complainant had purchased iPhone 6S from op no.1 on 17.10.2018 and its one year warranty expired on 16.10.2019. The complainant alleges that the said device developed some issues on 9.10.2019 and he visited the op no.2 on the said date. He further alleges that op no.2 inspected the said mobile and told him that it had manufacturing defects and cannot be repaired. It is submitted that complainant had just made averments without any sort of evidence to support the same. In the event, the complainant had visited op no.2, then it would have issued a service report with regard to its diagnosis. If the said issue was not in violation of the warranty, it would have repaired or replaced the said device based on its inspection. The complainant has never visited the op no.2 nor he has made any sort of request to op no.3 with regard to the alleged issues. The complainant failed to comply with the warranty provisions as complainant has failed to visit any Apple Authorised Service Provider to know the issues in his mobile. It is further submitted that if op no.2 had allegedly refused to service his device, he could have approached any other authorized service provider of op no.3, curiously the complainant has not done that for the plain reason that there is no such defect established. The complainant has actively used and enjoyed the services of said mobile for the period of one year. During this period he never raised any issues about the said device being old and having manufacturing defects. When the said one year warranty period was reaching its expiry, he is now claiming it to be old and defective. Remaining contents of complaint are also denied and prayer for dismissal of complaint made.
4. Notice was also issued to the op no.2 through registered cover which received back with the report ‘Left N/A ( Left not available). Therefore, fresh notice was ordered to be issued to op no.2 on filing of copy of complaint and RC etc. On 25.10.2021, learned counsel for op no.2 suffered a statement to the effect that op no.2 was summoned through registered AD and after sending summons to op no.2 through registered envelope for many times, a report of Left N/A has been received and they tried to find out address of op no.2 but could not find that where op no.2 has gone. So, he gives up op no.2 being unnecessary and due to non availability of its address. As such op no.2 has been given up by learned counsel for complainant.
5. The complainant has tendered in evidence his affidavit Ex.C1 and copy of invoice Ex.C2.
6. On the other hand, learned counsel for ops no.1 and 3 has tendered in evidence affidavit of Ms. Sheetal Tiwari, authorized signatory of op no.1 as Ex.R1 affidavit of Sh. Priyesh Poovanna, authorized signatory of op no.3 as Ex.R2, copy of guidelines for Foreign Direct Investment on E-Commerce of Government of India Ex.R3, copy of minutes of the board meeting of Apple India Private Ltd. regarding authorization to Mr. Priyesh Poovanna as Ex.R4 and copy of warranty Ex.R5.
7. We have heard learned counsel for the parties and have perused the case file carefully.
8. The case of the complainant is that on 15.10.2018 complainant had purchased mobile phone of Apple company model Apple I6 (32GB) through online service of op no.1 and said mobile is manufactured by op no.3. The complainant has also placed on file copy of invoice dated 15.10.2018 in this regard as Ex.C2 from which it is evident that complainant had purchased mobile in question through online service of op no.1 for a sum of Rs.23,999/-. The complainant has alleged that during warranty period of one year, the said mobile developed defects as it used to switch off automatically during its use and said defect was pointed out into the notice of authorized service centre of op no.3 i.e. to op no.2 by visiting it at Hisar but op no.2 after inspection of the mobile did nothing in the same and stated that same cannot be repaired due to manufacturing defect in it. According to complainant, op no.3 has manufactured an old and defective mobile and same has been sold to complainant and complainant cannot take advantage of the same despite the fact he has incurred huge amount for purchase of said mobile. The complainant in order to prove his complaint has also furnished his affidavit Ex.C1 in which he has testified all the contents of his complaint. Though, op no.3 has denied all the allegations of the complainant in its written version as well as in the affidavit of Mr. Priyesh Poovanna, authorized signatory of op no.3 and has also specifically denied that complainant did not visit op no.2 i.e. authorized service centre of op no.3 for the issues in the mobile but it is pertinent to mention here that notices of this complaint were sent to op no.2 through registered covers for the service of op no.2, but however, registered cover received back with the report “Left”. The op no.3 though denied the fact that complainant never visited op no.2 for repair of mobile and regarding defects in the mobile in question, but op no.3 has not led any cogent evidence in this regard. The manufacturer i.e. op no.3 was the best person who could disclose the address of its authorized service centre i.e. op no.2 and could supply its correct address for service of op no.2 but op no.3 has failed to do so. Even in the written version the op no.3 has also failed to disclose that op no.2 its authorized service centre is working on the same address as provided by complainant or has changed its address. Since the address of op no.2 i.e. service centre of manufacturer op no.3 could not be found, having no other option and non supply of correct address of op no.2 by op no.3, op no.2 was to be given up by learned counsel for complainant. So, in absence of op no.2, an adverse inference has to be drawn against manufacturer of the mobile in question that complainant visited op no.2 service centre of op no.3 regarding defect in mobile but op no.2 refused to do anything due to manufacturing defect therein. Even after appearance by op no.3 in this Commission on 3.3.2020, the op no.3 has not come forward with the plea that it is ready to get inspect the mobile in question and is ready to remove the defects, if any. The op no.3 claims that its iphones are known for their technology and utmost customer satisfaction having its service centers at many places, but in the present case, the op no.3 has not shown this type of services being provided to its customers. The op no.3 who is having expert mechanics could offer after its appearance in this Commission for inspection of the mobile and to redress the grievances of the complainant as mobile developed defects in the warranty period, but op no.3 has failed to do so. So, it is proved on record beyond any doubt that mobile of the complainant is having certain defects and op no.3 is held deficient in service. However, as complainant purchased the mobile through online service of op no.1 and it was delivered to the complainant by op no.1 and complainant has used the same, therefore, no liability of op no.1 of any kind is made out.
9. According to complainant, since the mobile in question became defective and has not been repaired by service centre of op no.3 despite his visit to op no.2 at Hisar, therefore, having no other option, the complainant has to purchase another new mobile, therefore, he is not in requirement of this mobile and op no.3 may be directed to refund the price of the mobile in question. We also found substance in this contention of complainant because now a days mobile has become necessity and as we have duly discussed the conduct of op no.3 (in para no.8 of this order), the replacement of the mobile in question with a new one will not serve the purpose and will be not justified as complainant has already purchased a new mobile and he is not in need of another mobile of op no.3.
10. In view of our above discussion, we allow the present complaint against opposite party no.3 and direct the op no.3 to make refund of the price of the mobile in question i.e. Rs.23,999/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to interest on the above said amount of Rs.23,999/- at the rate of 9% per annum from the date of order till actual payment. We also direct to pay a sum of Rs.5000/- as compensation to the complainant for harassment etc. However, complaint qua op no.1 stands dismissed. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Commission. Member President,
Dated:08.11.2021. District Consumer Disputes
Redressal Commission, Sirsa.
