| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 529 of 02-11-2016 Decided on : 07-11-2017 Sandeep Singh alias Sandeep Kanger S/o Tarsem Singh, R/o Village Kangar Tehsil Phul, District Bathinda. …..Complainant Versus Flipkart Internet Pvt. Ltd., Ozone Monne Teck Park, #56/18, S55/09, 7th Floor, Garvebnavipalya House Road, Bangalore 560068 Karnatka through its GM/MD/Chairman/Director/Authorized Signatory Hewlett Packard India Sales Private Limited, No. 24 Shalarpuria Arena, 4th Floor, Honsur Main Road, Koramangal, Bangalore 560 030 through its GM/MD/Chairman/Director/Authorized Signatory Tech Connect Retail Pvt. Ltd., Regd. Office 1213 Galleria Complex, DLF Phase-V, Gurgaon, Haryana 122002, through its GM/MD/Chairman/Director/Authorized Signatory (Deleted vide order dated 16-2-2017).
......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh. Pahwa, President Sh. Jarnail Singh, Member Present : For the complainant : Sh. Gagandeep Singh, Advocate. For the opposite parties : Sh. Vikas Kumar, Advocate, for OP No. 1. Sh. Lovekesh Singh, Advocate, for OP No. 2 OP No. 3 Deleted. O R D E R M. P. Singh Pahwa, President Sandeep Singh, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Flipkart Internet Pvt. Ltd., and another (here-in-after referred to as 'opposite parties'). Briefly stated, the case of the complainant is that the opposite party advertised through Flipkart online website that they have launched and sale printer HP Laser Jet M1005 Multi-function. It is of very good quality having all facilities. Being allured by opposite party No.1 through internet, the complainant booked one printer HP Laser Jet M1005 Multi-function Printer with opposite party No. 1 vide order ID No. 0D506990917919177000 dated 5-9-2016 for Rs. 13,299/- with cash on delivery option. It is manufactured by opposite party No. 2. The printer was delivered to the complainant at Bathinda. The payment was also to be made at the time of delivery of the Printer at Bathinda, vide invoice dated 6-9-2016. The payment of Rs.13299/- in cash was made at the time of delivery. It is alleged that after 25 days from starting of the printer, it started creating problems i.e. Scanner Jam/ Paper Jam. The complainant emailed to the opposite parties. The opposite parties assured that they will send their mechanic for repairing the same, but so far the opposite parties have not sent their mechanic to do the needful. The complainant many times telephoned to the opposite parties either to replace the said printer with new one with fresh warranty or to refund its price, but to no effect. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. It is further pleaded that due to this deficiency, he is suffering mental tension, botheration, agony, harassment and financial loss and has claimed Rs 50,000/- as compensation in addition to Rs.11,000/- as litigation expenses. Hence, this complaint for these relief and for direction to the opposite parties either to replace the printer with new one or to refund its price. In view of the statement of the learned counsel for the complainant, the name of opposite party No. 3 was deleted. Upon notice, the opposite parties No. 1 & 2 appeared through their respective counsel and contested the complaint by filing written reply. In separate written reply, the opposite party No. 1 raised preliminary objections that the complainant has approached this Forum with unclean hands and is guilty of suppressing material facts. The complaint is abuse of process of law. It deserves to be dismissed with exemplary cost. The opposite party namely Flipkart Internet Pvt. Ltd., owns and operates an online web portal namely Flipkart.com' (hereinafter `Portal'), and is engaged in the business of online market place, providing platform/technology and/or other mechanism/services to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers and enables dealing in various categories of goods. The Portal is a market place, wherein third party vendors/sellers who wish to use the platform, register themselves as vendors/sellers and list their products and offer the said products for sale. There are several third party vendors/sellers who list a variety of products on said portal, including but not limited to books, electronic gadgets, apparels for men, women and kids, home and kitchen appliances, perfumes and related products. The buyers hit the Portal, and search for their desired product and purchase the same from the desired seller listed on the Portal for that particular product. The opposite party No. 1 is merely a market place, which offers a platform to third party vendors/sellers and third party buyers to transact inter se. The opposite party No. 1 does not in any manner engage in any offer for sale or sale of any products, either through any online portal or otherwise. Thus, the portal acts solely as an Intermediary, as defined under Section 2(1)(w) of the Information Technology Act, 2000. The grievance of the complainant relates to sale of the product as well as after sales service. Therefore, the complainant rightly approached the manufacturer i.e. opposite party No. 2. The averments made in the complaint are totally false. The opposite party No. 1 has provided full support as an intermediary. The complainant is false, frivolous and vexatious qua it. It has been filed with malafide intention in order to harass and extort money from it. That under the 'Terms of Use' which are available on the Portal, and which every person transacting through the Portal is subjected to, categorically specifies that it is not involved in any transaction being done though the Portal. The Portal is only a platform that can be utilized by Users to reach a larger base to buy and sell products or services. Therefore, the opposite party No. 1 is not involved in the transaction in any way. There is no contractual obligation of opposite party No. 1 towards the complainant on issues of guarantee/ warranty or post sales services. That the product in issue was sold carrying manufacturer's warranty as provided by the manufacturer. The opposite party No. 1 does not provide any warranty. No representation has been made in this regard by it. Therefore no liability can be attributable towards it. That the opposite party has nothing to do with the after sales service. The complainant has mischievously impleaded the opposite party into the array of parties. That there has been no dispute contemplated under the 'Act' between the complainant and opposite party No. 1.That the reliefs prayed for by the complainant against opposite party No. 1 are wholly unreasonable and unsustainable. On merits, the opposite party No. 1 reiterated its stand as taken in preliminary objections and detailed above. After controverting all other averments, the opposite party No. 1 prayed for dismissal of complaint. The opposite party No. 2 in its separate written reply has pleaded that it is a company duly incorporated under the provisions of Companies Act, 1956. It is having its registered/corporate office at 24, Salarpuria Arena, Adugodi, Hosur Main Road, Bangalore 560039. The opposite party No. 2 has also raised preliminary objections that complaint is an abuse of process of law. It is not maintainable. That averments made in the complaint are vague, baseless and with malafide intent. That the complainant does not fall within the definition of 'consumer dispute' under the 'Act' as there is no deficiency in service or unfair trade practice. The further pleadings of the opposite party No. 2 is that the printer purchased by complainant is a well established product. Although the opposite party has also detailed about the quality of the product in general and the system through which they check the product but the version of the opposite party relevant for the disposal of this complaint is that the warranty benefits provided by the opposite party on the said printer is for a defined period. The warranty is explicit and the terms and conditions of such limited warranty state in unequivocal terms that the warranty coverage extends till the product is depleted or the 'warranty ends' date has been reached. In this case, the printer is provided with base warranty for a period of one year. On verification of the data base maintained by it, it found that complainant had lodged only one case in respect of printer reporting paper jam issues to the customer care centre/authorized service centre. On receipt of complaint, as per warranty obligations, the service team of opposite party has offered on site engineer visit. There was no case lodged for engineer's on site visit either to the customer care centre or the authorized service centre of the opposite party. The complainant has filed complaint claiming for the replacement of printer/refund of the cost of printer alongwith compensation and cost. The complaint filed by complainant is prima facie unsustainable. The question of granting any relief does not arise. All other averments are denied. In the end, the opposite party No. 2 also prayed for dismissal of complaint. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 2-11-2016 (Ex. C-1), photo copy of tax invoice (Ex. C-2) and photo copy of online complaint (Ex. C-3). In order to rebut this evidence, opposite party No. 1 has tendered into evidence photocopy of resolution (Ex. OP-1/1). The opposite party No. 2 has tendered into evidence affidavit dated 10-6-2017 of Rahamatulla S K (Ex. OP-2/1) and closed the evidence. We have heard learned counsel for the parties and gone through the record. Learned counsel for complainant has submitted that material facts are not in dispute. It is not disputed that complainant purchased printer through opposite party No. 1 manufactured by opposite party No. 2. The invoice Ex. C-2 also proves this fact. The printer was purchased on 6-9-2016. The complainant lodged complaint with opposite party No. 2 on 13-10-2016. Ex. C-3 proves this fact. The opposite party No. 2 has also admitted receipt of complaint. Therefore, it stands proved that defect was reported after about one month from the date of purchase. The opposite party No. 2 has simply pleaded that their service team offered on site engineer visit but there is nothing to prove that opposite party No. 2 offered any on site visit and the complainant has refused to accept the same. Therefore, it is to be accepted that opposite party No. 2 has not taken any step to redress the grievances of the complainant. A period of more than one year has already elapsed. The complainant is deprived from using the printer. The complainant is entitled to compensation as claimed for. It is further submitted by learned counsel for the complainant that opposite party No. 1 has sold the printer. The payment was received by opposite party No. 1. Therefore, the opposite party No. 1 also jointly and severally liable to compensate the complainant. On the other hand, learned counsel for opposite party No. 1 has submitted that opposite party No. 1 has been unnecessarily dragged into litigation. The product is manufactured by opposite party No. 2. The opposite party No. 2 has also not denied their liability as per warranty terms and conditions. Moreover, there is nothing on record to prove that any complaint was lodged with opposite party No. 1 by complainant. Therefore, the complaint against opposite party No. 1 be dismissed. The learned counsel for opposite party No. 2 reiterated his stand as taken in written reply and detailed above. It is further submitted by learned counsel for opposite party No. 2 that in written version also, the opposite party No. 2 has unfolded that it is ready to provide on site engineer's visit to do the needful but the complainant is adamant for replacement of product or refund of its price, which is not permissible under the warranty terms and conditions. We have carefully gone through the record and have considered the rival contentions. The admitted facts are that the complainant has purchased one printer through opposite party No. 1 which is manufactured by opposite party No. 2. The averments of the complainant is that he lodged complaint with opposite party No. 2 as there was problem of scanner jam/paper jam. The opposite party No. 2 has admitted receipt of complaint. The version of opposite party No. 2 is that they offered on site engineer's visit but the complainant refused to accept the same. The opposite party has not produced any document to prove this version. Therefore, it is to be accepted that opposite party No. 2 has failed to redress the grievances of the complaint. It amounts to deficiency in service on its part. Now the point is regarding relief. The complainant has prayed for replacement of product or refund of its price . The complainant has not produced on record any warranty terms and conditions to justify replacement of the product or refund of its price. The opposite party No. 2 has pleaded that they are ready to provide service for redressing grievances of the complainant. In these circumstances, the complainant is not held entitled to replacement of product or refund of its price. The opposite party No. 2 is bound to redress the grievances of the complainant. The complaint was lodged with opposite party No. 2 and it has also admitted/offered to do the needful. No relief was claimed from opposite party No. 1. Thus, opposite party No. 1 is not liable to pay any relief. In view of what has been discussed, this complaint is partly accepted with Rs. 3,000/- against opposite party No. 2 and dismissed qua opposite party No. 1. The opposite party No. 2 is directed to repair the printer in question of the complainant. The compliance of this order be made within 30 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 07-11-2017 (M.P.Singh Pahwa ) President (Jarnail Singh ) Member
| |
