Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 414
Instituted on : 6.9.2018.
Decided on : 23.12.2019.
Vikas Sehgal son of Shri Amarnath Sehgal, resident of House no.1655/11, Nehru Colony, Near Navyug Public School, Rohtak.
………..Complainant.
Vs.
- Lenovo Service- Centre, CPT-008-Golden Enterprises, SCF- 42, HUDA Complex, Rohtak-124001, (through its proprietor/owner).
- M/s ETRADE Marketing Private Limited, Unit no.1, Khewat/Kahat No.373/400, Mustil No.31, village Taoru, Tehsil Taoru, District Mewat, on Bilaspur Taoru Road, Mewat-122105, Haryana (through its Manager/authorized person).
Second Address:-.
M/s ETRADE Marketing Private Limited, SCO 205, Sector-12, Karnal-132001, Haryana (through its Manager/authorized person).
- Lenovo India Pvt. Ltd. Vatlka Business Park, 1st Floor, Badshah Pur Road, Sec-49, Sohna Road, Gurgaon-122001(through its Manager/authorized person).
- Amazon Seller Service Private Limited Registered office at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar, Malleshwaram (W), Bangalore-560055, Karnataka, India.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. RENU CHAUDHARY, MEMBER.
MS. TRIPTI PANNU, MEMBER.
Present: Shri Vijay Rathee, Advocate for the complainant.
Ms. Sonika Jangra, Advocate for the opposite party no.1 & 3.
Shri Sandeep Raj, Advocate for the opposite party no.4.
Opposite party no.2 already exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Present complaint has been filed by the complainant with the averments that complainant had purchased a mobile handset Make Lenovo Vibe Shot from the opposite party no.2 for Rs.9,985/-, vide invoice No.DEL2-11084 Order ID 405-5007884-9061907 with one year warranty through Amazon.in, in the name of his younger brother. The above said handset was not functioning properly from the day of its purchase due to some technical/manufacturing defect especially Charging, Ringer/Speaker, Camera Problem, Silence/Static, Overheating, Battery Charging, Touch Panel faulty etc. and most of times it goes “Hang” and the matter was reported to opposite party no.1 many times and was deposited with opposite party on 12.7.2018 vide work order no. SOIN0780081807120004 dated 12.7.2018. It is also averred that in the last week of June, 2018, the complainant went in the office of the opposite party no.1 to get rectified the problems but the opposite party no.1 refused to accept the present mobile handset on the pretext that this handset is out of warranty cover. Thereafter, the opposite party no.1 told the complainant that the above said handset was registered in other person’s name and it means the opposite party no.2, 3 and 4 supplied the second hand defected mobile handset to the complainant even after taking the payment for new one handset. Now, they are demanding Rs.5,000/- to get repaired the above said second hand(old) mobile hand set supplied by them. Despite repeated telephonic request and reminders of the complainant, opposite parties failed to take any remedial measures. Hence, this complaint and the complainant has prayed for directing the opposite parties to pay Rs.1,50,000/- as compensation for loss of income, mental agony and harassment alongwith the costs of litigation and cost of new mobile handset i.e. Rs.25,000/- in addition to the amount paid by the complainant alongwith interest @ 18% per annum w.e.f 15.10.2017 till its realization to the complainant.
2. On notice, opposite parties no.1, 3 and 4 appeared and filed their separate written reply. Opposite party no.1 and 3 submitted in their reply that the complainant had purchased End of Life 2015 year Lenovo Smart Phone Model Vibe Shot. It is further submitted that the answering opposite party has no knowledge or aware of the action of the opposite party no.2 by selling the smart phone in question which has End of Life(EOL) and the answering opposite party is not responsible for the wrong doing of the opposite party no.2. It is further submitted that if the opposite party no.2 was in possession of the smart phones which has end of life, the same has to be returned to the distributors of the answering opposite party and cannot resell the same to the consumers/customers as it will be difficult to provide after sales service due to non availability of the spare parts of the smart phone in question. However, in the instant complaint the opposite party no.2 & 4 has sold the End of Life handset to the complainant. Hence, the answering opposite party cannot be made liable for the wrong doings of the opposite party no.2 and 4. It is further submitted that there is no deficiency in service on the part of the answering respondent. The opposite parties duly honoured the warranty claims and repaired the phone free of cost under warranty as and when the complainant approached the authorized service provider of the answering opposite party. There is no inherent manufacturing defect in the phone. All the other contents of the complaint were stated to be wrong and denied and opposite parties No.1 and 3 prayed for dismissal of complaint with costs.
3. Opposite party no.4 in its reply has submitted that opposite party no.4 acts as an intermediary between the sellers and buyers. It is further submitted that ASSPL does not sell or offer to sell any products and it merely provides an online marketplace where independent third party sellers list their products for sale. The complainant has not bought any goods from ASSPL nor has the complainant paid any amount/considering to ASSPL. It is further submitted that the goods have been bought by the complainant from the independent third party seller selling its products on the website operated by the opposite party no.4. It is further submitted that the issue related to warranty/guarantee can be addressed by the manufacturer/its authorized service centre and ASPL has notrole over it. All the other contents of the complaint were stated to be wrong and denied and opposite party no.4 prayed for dismissal of complaint with costs. However, Opposite party no.2 failed to appear before the Forum, despite service. Hence, opposite party no.2 was proceeded against exparte vide order dated 12.10.2018 of this Forum.
5. Both the parties led evidence in support of their case.
6. Complainant in his evidence tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C10 and closed his evidence on 16.7.2019. On the other hand, ld. Counsel for the opposite party no.4 has tendered affidavit Ex.RW4/A, document Ex.R4/I, and has closed his evidence on 11.6.2019. On the other hand, ld. counsel for the opposite parties no.1 and 3 was made a statement that the reply already filed on behalf of OPs no.1 and 3 be also read in his evidence and tendered documents Annexure-A to Annexure-D and closed his evidence on 30.8.2019.
6. We have heard the counsel for the parties and have gone through the material aspects of the case very carefully.
7. After going through the file and hearing the parties it is observed that the complainant has purchased the mobile set for Rs.9985/- from the respondent No.2 vide bill Ex.C2 on 15.10.2017 and as per Ex.C6, he had taken the extended warranty for one year. As per the complaint and affidavit filed by the complainant, there were many problems in the mobile set in question. So he contacted the service centre or opposite parties to rectify the problems but he was told by the opposite parties that the mobile set in question was not under warranty whereas the mobile set was under warranty and also under one year extended warranty. However, after filing the present complaint, opposite party no.1 & 3 in their reply has submitted that opposite party No.2 had sold the EOL(End of life) mobile set to the complainant so the same is not covered under warranty. On the other hand, opposite partyno.2 did not appear despite service and as such it is presumed that opposite party no.2 has nothing to say in the matter and all the allegations leveled by the complainant against the opposite party no.2 regarding selling of EOL mobile phone to the complainant stands proved.
8. We have also observed that if the opposite party no.2 had sold EOL phone in the name of opposite party No.1 & 3, it was the duty of the company to take care about the EOL stock and they should dispose of the same, so that the same should not circulate in the market for selling. Opposite party No.1 & 3 could have also taken the legal action against the opposite party no.2 for selling the EOL mobiles in their name but they have not taken any step against opposite party No.2. As such, there is deficiency in service on the part of opposite party no.1 to 3 for selling the EOL mobile phone to the complainant.
9. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party no.2 to refund the cost of mobile set i.e. Rs.9985/-(Rupees nine thousand nine hundred and eighty five only) alongiwth interest @ 9% p.a. from the date of filing the present complaint i.e. 06.09.2018 till its realization and also to pay Rs.5000/-(Rupees five thousand only) for causing unnecessary harassment to the complainant and Rs.3000/-(Rupees three thousand only) on account of unwanted litigation suffered by the complainant only due to deficiency in service on the part of opposite party No.2. Opposite party No.1& 3 are also directed to pay a sum of Rs.5000/-(Rupees five thousand only) as compensation for causing mental agony & harassment to the complainant on account of selling EOL mobile set and for not taking any precautionary measures to stop the circulation of EOL phones in the market. Order shall be complied within one month from the date of decision. The mobile set in question is already in the possession of service centre.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
23.11.2019.
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Nagender Singh Kadian, President
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Renu Chaudhary, Member.
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Tripti Pannu, Member.
