Date of Filing 10.10.2023

                                                                                                       Date of Disposal: 21.02.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

               THIRU.P.MURUGAN, M.Com., (ICWA), BL.,                                                             …….MEMBER-II

CC.No.98/2023

THIS WEDNESDAY, THE 21^st DAY OF FEBRUARY 2024

Mr.S.Surender, S/o.Suresh,

Melnallathur Panchayath office Side,

Vellerithangal Roads,

Vaishnavi Nagar,

Thiruvallur Taluk & District 602 002.

Also at

6-2-32, Kamatchiyamman Kovil Street,

Odaipatti, Theni – 625 540.

Tamil Nadu.                                                                                               ......Complainant.

                                                                        //Vs//

1.Jai Balaji Enterprises,

   Rep. by its Proprietor,

   P.No.69, Chitrakoot Colony Kalwar Road,

   Jhotwara jaipur, Jaipur, 302 012, India.

2.Flipkart Internet Private Limited,

    Head Office,

   Rep. by its Managing Director,

   Buildings Alyssa, Begonia & Clover,

   Embassy Tech Village, Outer Ring Road,

   Devarabeesanahalli Village, Bengaluru,

   Karnataka 560 103. India. 

3.Flikart Internet Private Limited,

   Branch Office Chennai,

   Rep. by its Manager,

   No.10, Lazer Street, South Phase,

   Sathya Nagar, Gandhi Nagar,

   Chennai 600 032, Tamil Nadu.                                                      …..Opposite parties.

Counsel for the complainant                               : M/s.G.Kothandaraman, Advocate.

Counsel for the opposite parties 1 & 2              : Exparte.

Counsel for the 3^rd opposite party                    : Given up.

This complaint coming before us on various dates and finally on 14.02.2024 in the presence of M/s.G.Kothandaraman, counsel for the complainant and opposite parties 1 & 2 were set exparte for non appearance and upon perusing the documents and evidences of complainant’s side this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with regard to selling old mobile phone as new one to the complainant along with a prayer to direct the opposite parties 1 & 2 to replace the VIVO V25 5G (surfing Blue 128 GB)model mobile phone with a new one to the complainant, to pay interest at the rate of 12% per annum for the purchased amount from 07.08.2023 to 21.09.2023 and to pay a sum of Rs.2,00,000/- towards compensation for the mental agony, physical agony and financial loss along with cost.

Summary of facts culminating into complaint:-

2. That the complainant ordered VIVO V25 5G (Surfing Blue 128 GB) mobile phone from the 2^nd opposite party on 07.08.2023 vide order ID-OD428815776774114100 for a sum of Rs.24,061/-.  The said mobile phone was sold by the 1^st opposite party.  The complainant paid the amount through his credit card. On 13.08.2023 the complainant received the mobile phone.  He had paid Rs.17/- towards offer handing fee and he came to know that the said mobile phone is used one.  He checked the IMEI Serial No.867261069904407 and found that the mobile phone was already used by someone.  He went to nearby mobile showroom and confirmed the said mobile phone was purchased on 19.09.2022 by one unknown person.  The complainant raised the complaint to the 3^rd opposite party through phone and the same was acknowledged by them.  The complainant issued legal notice dated 05.09.2023 to all the opposite parties to replace the mobile phone.  The 2^nd opposite party duly received the said notice, but failed to comply the demand made in the said notice.  The legal notice sent to 1^st and 3^rd opposite parties were returned with an endorsement that no such person in the address.  Hence the complainant filed this complaint.

3. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A9 were submitted. Even after receipt of summons from this Commission, the opposite parties 1 & 2 had not chosen to appear before this Commission to file any written version within mandatory period to defend the case of the complainant.  Hence the opposite parties 1&2 were set exparte on 29.12.2023.  The complainant made endorsement on 18.11.2023 to remove the 3^rd opposite party from the complaint.  Accordingly the 3^rd opposite party is removed from the complaint.

Points for consideration:-

1) Whether there is any deficiency in service as alleged by the complainant against the opposite parties has been successfully proved by the complainant with admissible evidence?

2) If so, to what reliefs the complainant is entitled?

Point No.1:-

4. It is the case of the complainant that he purchased brand new mobile phone for a sum of Rs.24,061/- from 2^nd opposite party on 07.08.2023 which was sold by the 3^rd opposite party.  He received the mobile phone on 13.08.2023 and came to know that the said mobile phone was used one and the same has been purchased by someone on 19.09.2022.  He raised complaint to 2^nd opposite party and 3^rd opposite party to replace the mobile phone.  He further issued legal notice dated 05.09.2023 to all the opposite parties but the opposite parties failed to comply the demands made in the notice.  Hence the complaint.

5. To prove the claim, the complainant deposed proof affidavit with 9 documents which were marked as Ex.A1 to Ex.A9. Ex.A1 is the Aadhar card of the complainant, Ex.A2 is the Tax Invoice issued by the 1^st opposite party for the payment of Rs.24,061/-, Ex.A3 is the Tax invoice issued by the 2^nd opposite party for the payment of Rs.17/-, Ex.A4 is the delivery receipt of IMEI issued by the vivo service centre, Ex.A5 is the Statement of Accounts of the complainant, Ex.A6 is the legal notice issued by the complainant to the opposite parties, Ex.A7 is the returned cover from the 3^rd opposite party, Ex.A8 is the returned cover from the 1^st opposite party and Ex.A9 is the online consignment tracking acknowledgement details.

6. It is evidenced from Ex.A1 that the complainant purchased the mobile phone for Rs.24,061/- from the 3^rd opposite party through 2^nd opposite party.  Ex.A3 is the Tax invoice for collecting Rs.17/- from the complainant towards offer handling fees.

7. It is evidenced from Ex.A4 Job Card from Authorised Service Centre of VIVO that the said mobile phone was purchased on 19.09.2022 and the mobile hand set already had some details like message and apps.  The said job card issued by the authorised service centre revealed that the said mobile phone is not new one and the same has been used by someone prior to the purchase of the complainant.

8. Ex.A6 is the legal notice dated 05.09.2023 issued to the opposite parties. The 2^nd opposite party received the notice, but failed to comply the demand in the said notice.  As per Ex.A4 the said mobile phone is not new one.  Hence it is the bounden duty of the opposite parties either to replace the mobile phone or to refund the amount collected from the complainant.  Even after receipt of summons the opposite parties failed to appear before this Commission to defend the case. The act of selling old mobile phone as new one amounts to deficiency in service.  Therefore we are of the considered opinion that the opposite parties 1 & 2 committed deficiency in service.  This point is answered accordingly.

Point No.2:-

9. Since we have come to the conclusion that the opposite parties 1 & 2 committed deficiency in service, the complainant has to be compensated for the mental agony and hardship suffered by him.  Hence we have inclined to award Rs.10,000/- towards compensation for deficiency in service and mental agony and Rs.5,000/- towards cost.  The opposite parties 1 & 2 further directed to replace the mobile phone into new one or to refund the amount of Rs.24,061/- paid by the complainant.  This point is answered accordingly.

In the result, the complaint is partly allowed against the opposite parties 1 & 2 jointly and severally directing them

a) To replace the mobile phone into new one or to refund the sum of Rs.24,061/- (Rupees twenty four thousand sixty one only) paid by the complainant towards the purchase of mobile phone within six weeks from the date of receipt of copy of this order failing which the refund amount shall carry interest at the rate of 6% per annum till realization;

b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this 21^st day of December February 2024.

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MEMBER-II                                    MEMBER-I                                                  PRESIDENT

List of document filed by the complainant:-

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MEMBER-II                                           MEMBER-I                                           PRESIDENT