Delhi

North East

CC/447/2015

Ajay Kaul - Complainant(s)

Versus

Home Shop 18 - Opp.Party(s)

12 Dec 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.447/15  

 

In the matter of:

	Ajay Kaul B-75/UG1 Shri Ram Apartment Dilshad colony, Delhi-110095.	Complainant
	Versus
	Home Shop 18 7th Floor, FC-24, Sector-16A, Film City, Noida-201301.   Spice Retail Ltd S. Global Knowledge Park 19-A & 19-B, Sector-125 Noida-201301   Optimum Tally Services A-160, 1st Floor, Krishna Bhavan Vikas Marg, Shakarpur, Delhi-110092.	Opposite Parties

 

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

14.11.2015 12.12.2019 12.12.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

 

ORDER

1. Brief facts as narrated in the present complaint are that on 16.11.2014, the complainant had purchased a Spice Stellar 4.5” 3G Android Dual Core Phone – 449 handset white in colour bearing IMEI No. 911256505369484 and 919256505369492 manufactured by OP2 through online portal Home Shop 18 i.e. OP1 for a sum of Rs. 4,500/- received by the complainant on 22.11.2014. However, the subject handset started giving problems of Mobile Network and Wifi Going off and on and charging problem from the very first day. The complainant went to OP3, service centre of OP2 on advice of OP1 & OP2 and submitted the handset several times between May 2015 to November 2015 but it continued to malfunction despite several jobs done on it. The swap handset given by OP3 to the complainant had a changed back flip cover. The complainant raised several complaints with OP2 customer care vide e-mails between May- June 2015 and also asked for replacement or refund with regard to the subject handset due to its continuous non functioning with respect to network and charging but to no avail. Thereafter complainant also corresponded with OP1 between October- November 2015 requesting for refund of the subject handset is still under warranty and despite numerous visits to OP3 and repairs undertaken, the handset failed to function. The subject handset has been with OP3 since its last deposit in November 2015. However none of the OPs paid any heed to the grievance of the complainant and therefore as a last resort, the complainant was compelled to file the present complaint praying for issuance of direction to refund the cost of the mobile i.e. Rs. 4,499/- alongwith litigation charges of Rs. 5,000/-, conveyance charges of Rs. 5,000/- and wifi rent @ Rs. 743 p.m. amounting to Rs. 8,916/-.

Complainant has attached copy of retail invoice dated 16.11.2014 for purchase of subject mobile, copy of wifi bill, copy of service requests/jobsheets dated 22.05.2015, 16.07.2015, 09.10.2015, 28.10.2015 and 06.11.2015 issued by OP to the complainant for deposit of subject handset for repairs, copy of e-mail correspondence exchanged between complainant and OP3 between May- June 2015 and copy of e-mails exchanged between complainant and OP1 between October- November 2015 seeking replacement / refund with regard to the subject handset alongwith supporting affidavit under Section 65B of Indian Evidence Act, 1872.

2. Notice was issued to the OPs on 07.12.2015. All OPs appeared on 09.03.2016. OP3 did not file its written statement despite several opportunities and therefore its defence was struck off vide order dated 05.05.2016. OP1 filed its written statement vide which it took the preliminary objection that the present complaint pertains to deficiency in after sale service of products during warranty period which liability accrues against OP2 and OP3 since the complainant after having used the subject handset for few months had given the same for repairs in May 2015 to OP3, (authorized service centre) ASC of OP2 and therefore OP1 cannot be held liable for deficiency of service on the part of OP2 and OP3 since its role was restricted to receiving the order and delivering it on time in capacity of an online platform for sellers to display and sell their products. Further the arrangement between OP1 and OP2 is on principal to principal basis for providing marketing and support service and the two are separate legal entities with different roles and part to play. OP1 resisted the complaint on grounds that no deficiency of service has been alleged by the complainant against it which is a necessary ingredient for maintainability of the  complaint and that no fault, imperfection, short coming or inadequacy in service could be attributed to OP1 which performed its sole duty of delivering the product in working condition to buyer. OP1 submitted that it operates through a customized digital commerce platform to sellers to efficiently and effectively demonstrate, market and sell their products. OP1 is neither a manufacturer nor vendor or service provider of the handset in question and was only an electronic intermediary / facilitator which provided a platform/portal to OP2 and complainant for buying and selling the subject handset and admittedly OP3 being the manufacturer of the subject handset was solely bound to provide after sale service to the complainant. OP1 stated that it is merely a service provider and does not undertake any transaction on its website. OP1 admitted to having sold the subject handset to the complainant on 16.11.2014 and stated that he received the same on 18.11.2014 as against complainant’s averment of 22.11.2014. OP1 submitted that it is an electronic intermediary providing online shopping platform / venue by way of mobile applications to its users and all users of its website including buyers and sellers are bound by Terms of Use as uploaded on its website and laid emphasis inter alia on the Clause of Disclaimer of Warranties and Limitation of Liability in its defence which stipulates that all warranties and after Sales services, implied or express, take place directly between vendor and user / buyer / customer. OP1 further submitted that the complainant received the subject handset with a warranty card which could be availed by him in case of malfunctioning or defect against the manufacturer for which OP1 could not be held liable as it delivered the subject order in goods condition within time which was its sole duty and therefore there was no deficiency of service on its part. OP1 relied upon complainant’s own admission of having called / contacted OP1 which then dutifully referred him to OP3, ASC of OP2 and therefore did everything it was bound by to guide the complainant for resolution of the problem. In rebuttal to the allegation of the complainant of the subject handset giving problems from the day of purchase, OP1 submitted that the first problem was reported only after a gap of 7 months in June 2015. Lastly OP1 submitted that complainant has no cause of action to demand cost of conveyance for visiting OP3 about  20 times as alleged since as per OP1’s observation he visited OP3 only couple of times and has refused to visit it and did not even respond to several calls by OP1 made between 03.10.2015 to 11.10.2015. In view of defence so taken, OP1 prayed for dismissal of complaint. OP1 has attached copy of terms of use of its website, copy of warranty card and copy of retail invoice number NITCDRH/DRH/11/14/3494279 dated 17.11.2014 with respect to subject handset to the complainant.
3. Rejoinder to the written statement of OP1 was filed in rebuttal by the complainant vide which the complainant submitted that it was only having been lured by seeing features of the subject handset on the TV channel of OP1 promoted by OP3 that he had ordered for the subject handset and therefore OP1 being vendor thereof and selling the handset and earning commission is liable.
4. Written statement was filed by OP2 in which it took the preliminary objection that OP2 was not liable for any network or wifi related problem since the same pertains to relevant service provider and submitted in its defence that whenever the complainant visited OP3, he was given due care and proper service and handed over duly repaired handset within the stipulated time period but it was the complainant who took long time to collect the same for which OP2 cannot be held liable for negligence. Lastly OP2 submitted that when the complainant had last tendered his handset for repair on 05.01.2016 with OP3, the OP3 had checked the handset thoroughly and repaired the same successfully but complainant refused to collect his duly repaired handset from OP3 despite several repeated requests which shows his malafide intention and therefore prayed for dismissal of the complaint in absence of any deficiency of service on its parts which does not entitled complainant for any relief.
5. Rejoinder to the written statement of OP2 and evidence by way of affidavit was filed by the complainant in reassertion of their grievance against OPs and submitted that he had visited OP3 more than 20 times which kept the subject handset for number of days for more than 10 months and is currently still repairs.
6. Evidence by way of affidavit were filed by OP1 and OP2 exhibiting the documents relied upon/ filed.
7. Written arguments were filed by all parties in reemphasis of their respective grievance / defence.

OP2 last entered appearance on 28.11.2016 and was therefore issued court notice vide order dated 06.03.2019. However despite service effected on it on 27.04.2019 and Dasti Summons served on it, it failed to appeared and therefore proceeded against ex-parte vide order dated 18.09.2019. OP1 last appeared on 17.11.2018. However, pleadings were already complete qua both OPs and shall be 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) that even if OP is absent, Commission / Forum must consider averments in version before passing orders. Therefore the pleadings of OP1 & OP2 shall be taken into consideration while passing orders.

8. We have heard arguments addressed by the complainant and have perused pleadings and documentary placed on record by all sides.

It is not disputed that the subject handset was ordered online by the complainant on the website of OP1, manufacturer of which is OP2 and OP3 being the ASC thereof as can be verified from the retail invoice and several jobsheets placed on record. It is also not disputed that the subject handset was used by the complainant from November 2014 till May 2015 when the subject handset was first deposited by the complainant with OP3 on 22.05.2015 with complaint of network problem. However, the dispute arose when the subject handset kept giving recurring problems and defects in its functionality as stands corroborated with several service requests/ jobsheet between May to November 2015 of network, display, volume, power key, charging and wifi issuefor which several e-mails were written by the complainant to all the OPs between May to November 2015but no resolution was given by any of the OPs except perfunctory e-mails of forwarding the complaint to Area Service Team and prioritizing resolution from Advanced Repair Centre. The subject handset could not even last its warranty period half of which went by in service centers only. We therefore are of the considered opinion that OP2 sold an inherently defective handset which the complainant was constrained to deposit repeatedly with OP3 for 6-7 months without any permanent solution by way of either replacement or refund. As regards OP1, the sale of the subject handset to the complainant through its portal is admitted by OP1. However as per the terms and conditions at the footnote of the invoice, it was clearly stipulated that in case of receipt of a damaged / defective products, buyer was to informed it within 48 hours of receipt of product and for any after sale issues, buyer was directed to contact the authorized service centre of the respective brand. It is evident from the relevant terms and conditions reproduced that OP1 is an online shopping platform which acts as a venue for sellers to create their own online shopping stores thereby facilitating buyers to shop for the products and services displayed thereon alongwith the prices and terms and conditions. The terms and conditions are binding on the parties. OP1 has nothing to do with the quality of the product or the warranty period. OP1 being online portal has no liability of providing after sale service to the complainant for mobile purchased. Even otherwise, the subject handset was functioning for 5-6 months after purchase and OP1 had refund/exchange/return policy valid only for 48 hours from the date of receipt of the product and any defect thereafter should be reported to the respective manufacturer/ASC.

9. We therefore absolve OP1 of any deficiency of service or liability towards the complainant with regards to the subject handset. We however find OP2 and OP3 as manufacturer and service centre respectively guilty of deficiency in service of having sold a defective handset which demanded repeated repairs but which were still neither rectified by OP3 nor handset replaced or cost of it refunded by OP2. Furthermore the handset the still lying with OP3 since last more than 4 years.
10.  We therefore direct OP2 and OP3 jointly and severally to refund the cost of the handset i.e. Rs. 4,499/- to the complainant. We further direct OP2 and OP3 jointly and severally to pay a compensation of Rs. 3,000/- to the complainant towards harassment inclusive of litigation charges. Let the order be complied with by OP2 and OP3 jointly and severally within 30 days from the date of receipt of copy of this order.
11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.  Announced on 12.12.2019

 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member