Hon’ble Mr. Ajeya Matilal, Presiding Member
The Ld. Advocate for the appellant is present.
Being aggrieved by and dissatisfied with judgment dt. 27.02.2018 passed by Ld. DCDRC, Kolkata, Unit-III in CC/678/2017 allowing the case ex parte with costs against the OPs, the appellant / OP no. 1 preferred this appeal.
The fact of the case is in short like that the complainant purchased one Apple I phone 5-S Gold (16GB A 1530) under item I.D. No. 1924542890004400 from OP no. 2 for a price of Rs. 18,999/- by placing order through Flipkart on 26.05.2017. In the 1st week of October 2017 the complainant found that the camera of the phone was not working for which the complainant approached the OP no. 1 over phone and email referring the same upon OP no. 1 without taking any liability advised the complainant to contact OP no. 2. But wherefrom the complainant received the details of OP no. 3 which is a service centre. The mechanic of the OP no. 3 after checking and attempting to repair gave a report vide no. 41795 dt. 14.10.2017 stating that repairing service was not available in India as the mobile set is not 5-S Gold. But it was 5-S Silver. In the mean time the Flipkart being the OP No. 1 stated through email that they have escalated the issue and assured that it would be resolved by 16.10.2017 11 AM. One Mr. Hemant Rajak of M/s Flipkart Customer care support contacted the complainant and asked for details regarding issues with the phone service centre’s report and job-sheet. As the issue was not resolved by 16.10.2017 the complainant through email dt. 23.10.2017 asked the OP to refund. But it did not serve the purpose. The complainant served a legal notice but as there was no response so the complainant filed the case.
The OPs of the said case did not contest the case. The complainant adduced evidence. The following points were framed by the Ld. Forum below for decision.
- Whether the complainant is a consumer?
- Whether there is any unfair trade practice?
- Whether there is any deficiency of service on the part of the OPs?
- Whether the defective apple i phone was within the warrantee period?
- Whether the complainant is entitled to the relief as prayed for?
The Ld. Advocate for the appellant submitted that the OP no. 1 is only intermediary as per Section 2 (1) (w) of the Information Technology Act, 2000.
The complainant paid the total consideration money but received the I phone concerned with a defective camera. So, the complainant no. 1 approached to the OP no. 1 through email for redressal of his grievance. But the OP no. 1 without taking any liability advised the complainant to contact OP no. 2 from where the complainant received the details of OP no. 3, being is a service centre. The mechanic of the OP no. 3 after checking gave a report wherefrom it appeared that the repairing service was not available in India because it was not 5-S Gold but it was 5-S Silver. In the mean time the OP no. 1 escalated the issue and assured to get the same resolved by 16.10.2017. One Mr. Hemant Rajat M/s. Flipkart Consumer Support contacted the complainant and asked for details regarding the issues with the phone service centre’s report and job-sheet but no such service has been provided by them, so the complainant prayed for refund.
It appears from the complainant that the OP concerned was aware that no repairing service is available in India in respect of 5-S Gold but in spite of that the OPs concerned assured them to resolve the issue. But in spite of their assurance, the OPs did nothing. Furthermore, the case proceeded ex parte against them as they did not appear before the forum below and did not file any written version and evidence.
In the impugned judgment the OPs were directed to replace their I Phone concerned with free delivery costs within 45 days. There was further direction upon the OPs to pay compensation of Rs. 5000/- and litigation costs of Rs. 3000/-. There was also a provision for refund of Rs. 18,999/- with an interest @ 10% p.a as a default clause if the aforesaid mobile set is not repaired.
It appears from this discussion that the complainant is consumer. There is also deficiency in service on the part of the OPs and the complainant is entitled to relief as prayed for.
So, we are of the view that appeal is devoid of merit and there is no scope to interfere with the impugned judgment.
The, A/343/2018 is dismissed. Impugned judgment is upheld. There shall be no order as to the costs.
Let a copy of this order be sent to the Ld. Forum Below.
Joint Registrar of this Commission is directed to do the needful in this regard.
ORDERED ACCORDINGLY
