C.C filed on: 17.03.2016

 Disposed on:04.10.2016

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, TUMKUR

DATED THIS THE 4^th DAY OF OCTOBER –  2016

C.C. No. 48 OF 2016

:PRESENT:

SMT. PRATHIBHA. R.K. BAL LLM. PRESIDENT,

SRI. D. SHIVAMAHADEVAIAH, B.A. LLB,  MEMBER

SMT. GIRIJA, B.A. LADY MEMBER

COMPLAINANT/S:

M.D.Tanveer

9^th Cross, Jilani Manzil,

Veerasagar, Sadashivanagar,

Tumkur.

(In-person)

-V/s-

OPPOSITE PARTY/IES

1.       The Managing Director,

          W.S.Retail Service Private Limited,

          Ozone Manay Tech Park, No.56/18,

          ‘B’ Block, 9^th Floor,

          Garvebhavipalya, Hosur Road,

          Bangalore, Karnataka, India-560 068.

2.       The Manager,

          Lenovo Service Center,

          B.H.Road, Tumkur.

  (OP No.1 by Smt/Sri. Kumar S.C. – Advocate)

 (OP No.2 – Ex-parte)

:O R D E R:

SMT.GIRIJA - MEMBER

The complainant has filed this complaint Under Section 12 of the Consumer Protection Act 1986 against the OPS alleging deficiency in service on the part of OPS and prays to direct the Opposite Parties to replace the mobile phone with new one or to the pay the amount of Rs.7,500/- towards purchase of mobile phone and to pay Rs.25,000/- towards mental agony.    

The brief facts of the complaint is as under:-

2.       The complainant submitted he has booked Lenovo A6000+ Mobile phone through Flipkart on 12.11.2015 and received the same through his delivery boy by paying Rs.7,500/-.  The complainant submitted that within two months from the date of purchase of the mobile phone, the problem started in the mobile with regard to hanging and heating and in that regard, the complainant contacted the OP No.1 through mail and on the advice of OP No.1 the complainant approached the Lenovo service center at Tumkur.  The staff of  Lenovo service center had given the mobile phone to the complainant after keeping the same for one day by stating that they have changed software from Kitkat to Lollipop.       

          The complainant further submitted that after repair of the mobile phone, the problems got increases and shows please insert SIM card and the setting in the mobile phone got changed atomically and the mobile phone got heated while listing songs and watching movies.   The complainant further submitted that while he was talking in the mobile phone the SIM got dropped and shows please insert SIM and due to this the complainant suffered lot of mental agony. 

          The complainant further submitted that due to repairs in the mobile phone the complainant again contacted the OP No.1 and on the advice of OP No.1 again the complainant approached the OP No.2 for repair and after repair of the mobile phone when the problems in the mobile phone was not set righted, again the complainant contacted the OP No.1 to set right the mobile phone, but the OP No.1 did not respond to the complainant.  Hence, with other no alternative, the complainant filed this complaint.

3.       In spite of service of notice, the OP No.1 appeared through counsel and filed the version.  In spite of service of notice, the OP No.2 did not appear before this Forum.  Hence, OP No.2 placed Ex-parte. 

          In the version, the OP No.1 submitted that the complaint is not maintainable neither in the eye of law nor on facts or otherwise liable to be dismissed in limine as it does not show any cause of action against the OP No.1.    The OP No.1 further submitted that the complaint is devoid of any merits and the averments made in the complaint are baseless and do not cover the complete facts of the case and are made only with the intention to defame the OP No.1 and extorting money illegally and therefore the complaint is liable to be dismissed.

          The OP No.1 further submitted that the OP No.1 is an online retail seller and one of the registered sellers on the marketplace website www.flipkar.com and has acquired good market reputation for its range of products and exceptional customer support.

           The OP No.1 further submitted that the complainant alleged manufactured defect in the mobile hand set, but the complainant has not made the manufacturer of mobile handset to the proceedings and therefore the complaint is not maintainable.  The OP No.1 further submitted that the OP No.1 is not engaged in selling of any goods manufactured or produced on its own and thereby the OP No.1 is a separate and distinct identity and the grievance of the complainant should have been only against the manufacturer as such the product carries manufacturer’s warranty and therefore the complaint is bad for mis-joinder of party.

          The OP No.1 further submitted that as a goodwill gesture they provides 30 days replacement warranty to the customers and it is an admitted fact that the complainant did not face any problem with the product during these 30 days and thereafter the problem with the mobile phone occurred due to own fault of the complainant. 

          The OP No.1 further submitted that there has been no dispute contemplated under the Consumer Protection Act, 1986, between the complainant and the OP No.1 as the answering OP is not the manufacturer of the product sold to the complainant and the OP No.1 is a reseller and there is no privity of contract between the complainant and the OP No.1 and therefore the complaint is liable to be dismissed against the OP No.1.

          The OP No.1 further submitted that the complainant himself has admitted that he has visited the OP No.2 with regard to problem in the handset and thereby the manufacturer and the service center are only liable to be prosecuted and not the OP No.1.  The OP No.1 further submitted that the OP No.1 is neither a manufacture nor after sale service provider nor warranty clause formulator and has not no knowledge about the manufacturing defect and does not have any control over OP No.2 and therefore the allegations leveled by the complainant can only be determined and responded by OP No.2.  The OP No.1 further submitted that they have denied the allegations made by the complainant in his complaint and that among other grounds the OP No.1 requested to dismiss the complaint.

4.       Both parties have filed their affidavit evidence to support their evidence.  Heard the arguments, and then posted the case for orders.

5.       Based on the above materials, the following issues will arise for our consideration.

1. Whether there was deficiency in service on the part of the OPS as alleged by the complainant?

2. What Order?       

6.       Our answer to the above issues are as under:-

Issue No (1)          :        In the Negative

Issue No (2)                    :        As per final order below

                          :-REASONS:-

Issue No.(1):-

7.       On perusing the bill produced by the complainant and submission made by the OP No.1 it is not in dispute that the complainant has purchased the mobile phone Handsets/VJ21468/Lenovo by paying Rs.7,499/-.

8.       The contention of the complainant is that within two months from the date of purchase of the mobile, the problem started in the mobile phone with regard to hanging and heating and while talking in the mobile phone, the call was dropped automatically and the said problems were brought to the notice of Flipkart through ‘e’ mail and on the advice of the Flipkart, the complainant approached OP No.2 and gave his mobile for repair and after repair, the same problems were persisted and again the same was brought to the notice of Flipkart, but there was no response and therefore the complaint filed this complaint.

9.       On the contrary, the OP No.1 contended that the complainant has alleged manufacturing defect in the mobile phone and in that regard the complainant has not brought the manufacturer of the mobile phone to the proceedings.     The OP No.1 further contended that the OP No.1 is merely a reseller registered on Flipkart.com and the OP No.1 is not engaged in selling of any goods manufactured or produced on its own and the OP No.1 is engaged in selling of goods manufactured and produced by the manufacturer i.e. Lenovo India Pvt Ltd. and the OP No.1 is a separate and distinct identity.  The OP No.1 further contended that the complainant has himself admitted that he has visited the service centre of the manufacturer of the product in issue but has failed to get the alleged problems redressed and that the manufacturer and the service center are only liable to be prosecuted and not the OP No.1 and the OP No.1 is neither a manufacturer nor after sale service provider nor warranty clause formulator and has no knowledge or facility to ascertain whether the product in question is defective because of manufacturing defect.

10.     On perusal of the ‘e’ mail copy it is seen that the complainant has requested the Flipkart to set right the problem in the mobile phone.

11.     The complainant has contended that as per the advice of Flipkart, the complainant approached the OP No.2 and after repair of the mobile phone from OP No.2 the problems in the mobile phone still persisted and therefore again he asked Flipkart to set-right the problem, but there was no response. 

12.     On perusal of the entire file it is seen that the complainant has not produced any documents to show that there is manufacturing defect in the mobile handset purchased by him except a copy of complaint given by one Nasru ulla khan to the Flipkart.  In the case on hand the complainant submitted that on the advice of Flipkart, he has approached the OP No.2 and got repaired his mobile phone and after repair also the problems in the mobile phone were still persisted.  But in this regard the complainant has not produced any job sheet or acknowledgement given by the OP No.2 for handing over the mobile phone for repair.   Further, the complainant alleged manufacturing defect in the mobile hand set.  But, the complainant has not produced any documents like expert opinion to show that the mobile phone purchased by him having manufacturing defect.  Hence, on the above discussion we are of the opinion that there is no deficiency of service on the part of OPS.  Accordingly, we answer the issue No.1 in the Negative.

Issue No(2):   

12.     In the result, we proceed to pass the following:-

:- ORDER:-

1. The complaint filed by the complainant is hereby Dismissed.  No order as to costs.

2. Communicate the order to both the parties. 

(Dictated to the stenographer, transcribed and typed by him, then corrected and pronounced in the open Forum on this the 4^th Day of OCTOBER 2016).

LADY MEMBER                      MEMBER                            PRESIDENT