Delhi

North East

CC/219/2016

DEVENDRA KUMAR - Complainant(s)

Versus

GURUKUL TECHNOLOGY - Opp.Party(s)

09 Sep 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 219/16

 

In the matter of:

	Devender Kumar S/o Shri Jai Singh R/o- 1/2349, Pandit Chowk Ram Nagar, Shahdara Near Reliance Fresh Delhi-110032.	Complainant
	Versus
1.         2.         3.           4.	Home Shop 18 7th Floor, FC-24 Sector-16A, Film City Noida U.P. 201301.   Tarash Overseas Pvt Ltd Plot No.5, Sector-27B Near S.S.R. Corporate Tower Faridabad, Haryana-121003   Gurukul Technology For Mobile For Spice Retail Ltd, Authorized Service Center, F-671, 1st floor, Khajuri Khaas Opposite Main Bhajanpura Bus Stand, New Delhi.   Spice Retail Ltd S Global Knowledge Park 19A-19B, Sector-125, Noida U.P.201301.	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION :

22.08.2016 09.09.2019 09.09.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts, shorn of unnecessary details, giving rise to the present complaint are that the complainant had purchased SPICE X LIFE M5Q 3G Quad Core Android mobile phone manufactured by OP4 through online portal OP1 with its tie-up seller OP2 on 09.03.2016 on COD for a sum of Rs. 3,999/- vide invoice no. TARA/15-16/938679. The said mobile phone carried a warranty of one year. However, it went out of order barely after four months of usage with no ‘power on’ problem on 21.07.2016 and for which the complainant deposited the same with OP3, Authorized Service Centre (ASC) of OP4 vide Service Request No. 30101901G70264. OP3 assured the complainant to repair the said mobile phone and returned the same within next two days. However, OP3 did not return the same mobile despite several visits made by the complainant and kept delaying on one pretext on the other and lastly told the complainant his mobile has been sent to OP4 and whenever it is received from it, the complainant shall be informed accordingly and hand it over. However, it never happened and lastly the complainant was forced to take legal recourse by way of filing the present complaint praying for issuance of directions against the OPs to handover the repaired mobile to the complainant alongwith compensation of Rs. 20,000/- for mental harassment and Rs. 5,000/- towards litigation charges.

Complainant has attached copy of invoice dated 09.03.2016, copy of warranty card and copy of service request dated 21.07.2016.

2. Notice was issued to the OPs on 21.09.2016 which was refused by OP3 therefore deemed service under Section 28 A(3) of CPA and was therefore proceeded ex-parte vide order dated 20.12.2016 on which date OP1 and OP2 filed their separate written statements, contents being same though sworn by separate authorized representatives in which both took the preliminary defence that the complaint does not disclose any cause of action or any order number through which the product was purchased for which reason, the same could not be traced in OPs records and prayed for dismissal under Order VII Rule 11 of CPC. OPs further urged that the present complaint pertaining to deficiency in after sale service of the mobile during warranty period is solely attributable to OP3 (ASC) and OP4 (manufacturer) since the complainant has alleged manufacturing defect in the said mobile and the said OPs kept the same with themselves and failed to either replace or remove the defaults therein and OPs herein are merely online portal and vender respectively of the said product and not liable for any after sale service during the tenure of warranty period of the said product. Therefore, no deficiency of service can be attributed to them for non performance on the part of OP3 and OP4 owing to their respective restricted roles which have been clarified to the effect that OP1 had only received the order and ensured its delivery and it does not sell goods on behalf of the seller but only provides a marketing platform / portal to sellers for displaying and selling their products in capacity of an electronic intermediary / E-Commerce market place and provides online shopping platform / venue to its users. Further arrangement between OP1 and OP2 is on principal – to – principal basis for provision of marketing and support services. OP2 on the other hand is mere vender of the product with no liability for after sale service which is that of OP3 and OP4. Therefore both OPs prayed for dismissal of the present complaint on respective/common defence taken.

OP4 filed its written statement taking preliminary objection that the subject mobile was a genuine one carrying limited warranty of one year against manufacturing defect which in case of any damage, ceases to exists and submitted that it had fulfilled its warranty obligation within the limited warranty period and thereby urged no deficiency of service praying for dismissal of the complaint.

3. Rejoinder was filed by the complainant in rebuttal to the defence taken by OP1, OP2 and OP4 in reassertion of their grievance against the OPs alleging negligence on the part of OPs in having failed to rectify the defect in his mobile and ignoring request of the complainant in utter lack of devotion towards their work and submitted that every company gives guarantee /warranty of a new product and is bound by the same and failure to abide by the same is deficiency of service.          
4. Evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon/ filed alongwith the complaint.
5. Evidence by way of affidavit was filed by OP1 and OP2 exhibiting their respective board resolutions authorizing the ARs.  OP4 did not appear after file written statement and making settlement offer by way of refund of mobile price in February 2017 and was therefore proceeded against ex-parte vide order dated 06.05.2019.
6. Written arguments were filed by complainant and OP1 and OP2 reemphasizing their respective grievance / defence.   

OPs argued that the complainant has himself clarified the roles and capacity of all OPs in the complaint and that ‘deficiency’ in service cannot be alleged without attributing faulty, imperfection, shortcoming or inadequacy in the quality, nature and manner of rendering any service in pursuance of a contract which in the present case has not been attributed to either of the OPs by the complainant in as much as the subject mobile was delivered in good condition and timely to the complainant by OP2 and OP1’s role was limited to being a seller thereof and the contents of the complaint do not spell out aliments of deficiency on the part of either of the OPs.

Complainant on the other hand argued that despite having being promised by OP3 to handover the subject mobile in repaired condition in July 2016, he never got the same back for which he has suffered mental tension, agony, harassment and loss of time apart from his mobile value. The order number and other related details have already been placed by the complainant alongwith complaint but OPs failed to resolves his problem and negated the defence taken by OPs.

7. Complainant placed reliance upon the judgment of SCDRC Chandigarh in Pallavi Vs Apple India Pvt Ltd in FA No. 242/2017 passed on 07.09.2017 in which in similar case of non repair/non replacement of mobile within the warranty period, the State Commission directed the manufacturer, service centre and seller jointly and severally to repair and handover the same to the complainant to his satisfaction or in the alternate refund the cost thereof. The Commission had also awarded compensation and litigation expenses.
8. We have heard the arguments addressed by complainant in person and have perused the documents placed before us. OP1 and OP2 did not appear however pleadings were already complete qua them and duly considered as per the settled law passed by Hon'ble National Commission in Bank of India Vs N V Deoras 1997 (3) CPR 63 (NC), even if OP is absent, commission / Forum must consider averments in version before passing orders, therefore the pleadings of OP shall be taken into consideration while passing orders.
9. Complainant’s submission of non repair of the subject mobile phone by OP3 and non returned thereof since 21.07.2016 (date of deposit) has gone unrebutted due to willful abstention on the part of OP3 to attend / appear before this Forum by refusal of service of its summons and therefore adverse inference in drawn against OP3 in this regard. OP4 in its written statement is also silent on the issue of submission of the subject mobile phone with its ASC i.e. OP3 though both parties are vicarious liable for each others acts of omission and commission but OP4 filed a cryptic written statement without any specific defence taken therein giving rise to conclusion that it probably did not have any for non return of the subject mobile phone post submission in July 2016 and for its non performance barely after four months of usage while it is still in warranty  as was also noted in the Service Request  issued by OP3. Therefore, according to us, both OP3 and OP4 are guilty of deficiency of service qua the complainant more so that neither of them rebutted the allegation made by the complainant or submitted any statement on oath or examined any witness in their defence. Admittedly, the mobile phone purchased in March 2016 was deposited with OP3 in July 2016 with power off defect never to be repaired / returned to the complainant as facts stand unrebutted. No deficiency on the part of OP1 and OP2 however has been made out by the complainant anywhere in his pleadings by way of any evidence led to that effect and we are in agreement with the defence taken by both OPs i.e. OP1 and OP2 being online portal and vender thereof of having no liability of providing after sale service to the complainant for mobile purchased. Even during the course of arguments, the complainant specifically sub mitted before this Forum when questioned on relief claimed against specific parties that he only wishes that his mobile be returned repaired by OP3 and OP4 (with whichever party it is currently with) alongwith compensation from them.
10.  We therefore absolve OP1 and OP2 from any culpability qua the complainant and direct OP3 and OP4 jointly and severally to repair the mobile phone SPICE X LIFE M5Q 3G Quad Core Android of the complainant to his satisfaction with fresh warranty of one year of the repaired parts and return the same within a period of 30 days from the date of receipt of this order.
11.  We further direct OP3 and OP4 jointly and severally to pay a sum of Rs. 3,000/- as compensation for mental harassment inclusive of litigation charges.
12.  Let the order be complied by OPs within 30 days from the date of receipt of copy of this order.    
13.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on  09.09.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member