BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.264/2016.
Date of instt. 10.10.2016.
Date of Decision: 19.06.2017.
Aalok Kumar son of Shri Rattan Kumar resident of village Bhuna District Fatehabad.
..Complainant.
Versus
1. Lenovo India Private Limited Sector 49, New Delhi.
2.WS Retail Services Pvt. Ltd. Rectangle No.28 Kila No.22/2/1 village Begam Pur Khatola Tehsil & District Gurgaon (Haryana) 122001.
3.Chiptek System, Lenove Care, Parijat Complex, Hisar Mob.No.9138238238.
4. Flipkart Internet Private Limited Vaishnavi Sumit, Ground Floor, 7th Main 80 Feet Road 3rd Block, Koramangala Industrial Layout, Banglore (Karnatka) 560034.
..Opposite parties.
Complaint under Section 12 of Consumer Protection Act.
Before Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt.Ansuya Bishnoi, Member.
Present: Complainant in person.
Sh. Yogesh Gupta, Advocate for OP Nos.2 & 4.
OP Nos.1 & 3 exparte.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs) with the averments that he had purchased a mobile of Lenovo Company by placing an online order through OP No.2 vide Invoice No.DEL-GGN-0120151100085817 dated 28.11.2015 for a sum of Rs.9,024/- and received the same through OP No.4. It has been further averred that from the very beginning it developed problems, therefore, the complainant lodged a complaint with OP No.3 on 26.07.2016 and also got deposited the same with OP No.3. The complainant visited the Op No.3 after a week as per its directions but it did not return the phone to the complainant and directed to come after 3 weeks. Thereafter, OP No.3 returned the mobile to the complainant but it again started creating problems; therefore, he again visited the OP No.3 on 05.09.2016 and deposited the same with it. The complainant visited the Op No.3 many a times but till today the phone cannot be repaired. The act and conduct of the Ops clearly amounts to deficiency in service. Hence, this complaint. In evidence, the complainant has tendered his affidavit Annexure C1 besides documents Annexure C2 and Annexure C3.
3. On presentation of the complaint, notice of the same was issued to the OPs.
4. OP No.2 in its reply has asserted in preliminary submissions that complainant has suppressed true and material facts from this Forum. It is a registered seller on the website “flipkart.com” and sells products of other manufacturers through the website. It has acquired good market reputation for its range of products offered and for its exceptional customer support. It has been further asserted that it is not engaged in selling of any goods manufactured or produced by its own. As a reseller, its involvement in the entire transaction is limited only to selling the products of various manufacturers. It has been further submitted that OP No.2 had delivered the product in question in a sealed box with the time specified in the order and the liability to provide after sale service does not lies on the OP No.2 as it is neither manufacturer of the product nor is having service centre. It is the sole duty of the manufacturer and their authorized service centre to remove the defects, if any to the entire satisfaction of the customer and any warranty and period of warranty is to be provided by the manufacturer of the product. It has been further submitted that 30 days replacement warranty provided by the seller has also been lapsed and any kind of after sale services is not the responsibility of the OP No.2. There is no deficiency in service on its part. With these submissions, prayer for dismissal of complaint has been made.
5. OP no.4 appeared and resisted the complaint by filing its separate reply raising preliminary objections that complainant has suppressed the true and material facts from this Forum and that there is no deficiency in service on its part. It has been further submitted that complainant does not fall under the category of consumer of OP No.3 under the provisions of Consumer Protection Act and op no.3 has been wrongly arrayed as a party as the complainant has not paid any consideration to it. There is no privity of contract between the complainant and op no.4, therefore, complaint is not maintainable either in law or on facts and is liable to dismissed against it. It has been further submitted that the OP No.4 provides online market place to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods and the work of the Op No.4 is an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. The Op No.4 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 of the online market place services provided by Op No.4 on the terms decided by the respective sellers only. In the instant complaint, it is evident from the invoice that the actual seller of the product is a third party seller and not the OP No.4. The Op No.4 neither offers nor provides any assurance and also did not provide any warranty to the buyers of any product. OP No.4 further took more or less the same grounds as taken by the Op No.2. Other allegations made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence the OP Nos. 2 & 4 have tendered affidavit of Ms.Swati Singh as Annexure RW2/A, affidavit of Mr.Satyajeet Bhatacharya as Annexure RW4/A and document Annexure OP4/A.
6. The OP Nos.1 & 3 did not appear despite service through registered cover and were proceeded against exparte.
7. We have heard learned counsel for the complainant as well as learned counsel for the appearing parties and also gone through the written submissions made on behalf of OP Nos. 2 & 4.
8. There is no dispute that complainant had purchased the mobile Lenovo K3 Note through online from OP no.2 for a sum of Rs.9024/- as is evident through Annexure C2. The OP No.1 is manufacturer of the mobile in question and OP No.3 is customer care centre. The complainant in support of his averments has tendered his affidavit Annexure C1 wherein he has testified all the facts so set out by him in his complaint. According to the complainant, the mobile in question was having warranty of one year, however, it developed problems from the very beginning. The complainant has specifically mentioned in his complaint that time and again the mobile in question went out of order and therefore, he had to visit OP No.3 by visiting at Hisar. The OP No.3/service centre and OP No.1/manufacturer of the mobile in question have not bothered to appear before this Forum rather opted to be proceeded exparte. The complainant is resident of Fatehabad and had to visit many times to Hisar to visit Op No.3 for repair of the mobile in question but despite that his grievances could not be resolved by the OP No.3.
9. The stand taken by learned counsel for OP Nos. 2 & 4 that they are neither the seller nor the manufacture and hence not liable for any deficiency in service. The OP No. 4 operates its online marketplace platform under the brand-name /trademark “Flipkart” through the website i.e www.Flipkart.com which is an online market place. The website is an electronic platform which acts as an intermediary to facilitate sales transactions between independent third party sellers and independent end customers. The Website enables independent third party sellers to list, advertise and offer to sell their products and services to be users of the Website. Once a user accepts the offer of sale of the products made by the third party seller on the Website, 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 set out by the seller as part of the terms for sale displayed on the Website. In support of his contentions learned counsel for the OP Nos.2 & 4 has relied upon Press Note No.3 (2016 series) issued by Government of India Ministry of Commerce & Industry Department of Industrial Policy & Promotion (FC Section) besides relying upon the case laws titled as Hindustan Motors Limited and others Vs. N.Siva Kumar and another (2000) 10 SCC 654, Anand Kumar Vs. Prem Singh and others (2000) (10) SCC 655 , Classic Automobiles Vs. Lila Nand Mishra & Anr. (2010) CPJ 235 (NC). Perusal of above said press note (supra) reveals that it is a simple guidelines for Foreign Direct Investment (FDI) on E-Commerce as there is not mentioned in the same that the e-commerce would be done on charitable basis. It is simple case that all the Ops have played different roles at different steps, therefore, the OP Nos.2 & 4 cannot be left high and dry as they are not running any charitable trust and their acts are clearly on professional basis to earn profit. Although the OP Nos.2 & 4 did not charge any price from the complainant from mediating between the seller and the complainant yet it is implied that the opposite party which was giving service to the seller to invite buyers to purchase the goods is a service as contemplated under the provisions of Consumer Protection Act and it is clearly stated by the OP Nos. 2 & 4 that they are engaged in business of providing services through its internet portal (www.flipkart.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of movable goods, therefore, all the Ops are also liable for the deficiency in service. On this point reliance of case law titled as Rediff. com India Limited Vs. Ms. Urmil Munjal C/o Gurgaon Gramin Bank decided on 11.04.2013 by Hon’ble National Commission in RP No.4656 of 2012. The case laws and the Press Note relied upon by learned counsel for the Op Nos. 2 & 4 are not helpful to their case and are distinguished being rested on different footings.
10. Thus, as sequel to our above discussion, we allow the present complaint against the OPs and direct them jointly and severally to refund the price of the mobile in question i.e. Rs.9024/- to the complainant subject to depositing of the mobile in question alongwith its accessory, if any, by him with them. We also direct the OPs to pay a compensation of Rs.2,000/- in lump sum to the complainant for harassment and mental agony etc. This order should be complied within a period of one month, failing which the above said amount of Rs.9024/- will carry interest @ 9% per annum from the date of order till actual realization and the complainant will be at liberty to initiate legal action against the opposite parties. File be consigned to the record after due compliance. Copy of this order be communicated to the parties free of costs.
Announced in open Forum:
Dt.19.06.2017. (Raghbir Singh)
President,
District Consumer Disputes Redressal Forum, Fatehabad.
( Ansuya Bishnoi) (R.S.Panghal)
Member Member
