DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 7th day of May, 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
C.D Case No. 116 of 2016
Rajesha Sharma
S/o Gyana Chand Sharma
At/Po: Charampa
Ps: Bhadrak (T)
Dist: Bhadrak
Pin: 756101
……………………. Complainant
(Versus)
1. Manager W.S. Retail Services Pvt. Ltd.
At: SND Ware House
SHED No- CI- Door No- 4/195
REDHILLS- AMBATPUR ROAD
PUZHAAL VILLAGE
CHENAI- 600062, TAMILNADU
2. Manager Mottorla
Excellence, Centre- 415/2
At: Mehrauli, Gurugan Road
Sector- 14, Near Moharuna Pratap Chowk
Gurgaon, Harryyana, Pin- 122001
3. Manager Flip-Kart Internet Pvt. Ltd.
At: vaishnavi Sumit, Ground Floor
7th Main, 80 Feet Road
3rd Block, Koramangala
Industrial Layout
Bangalore- 560034 (Karaataka)
4. Manager Smart Services
(Telecom Division)
At: SCK 15/E (666) Bapuji Nagar Lane- 4
Bhubaneswar- 751009
Dist: Khurda, Odisha
…………………………..Opp. Parties
For the Complainant: Sri R.K. Ray & Others
For the O.Ps 1 & 3: Sri C.K. Swain & Others
For the O.Ps 2 & 4: Ex-parte
Date of hearing: 27.11.2017
Date of order: 07.05.2018
SRI RAGHUNATH KAR, PRESIDENT
The complainant has filed the complaint alleging against the O.Ps for deficiency of service, the fact has been disclosed as follows that the OP No. 1 is a mobile retail sales/service center, the OP No. 2 is the mobile manufacturing company and OP No. 3 is one of the online booking supplier and OP No. 4 is one of Authorized Service Center of mobile of OP No. 2 mobile company. The complainant ordered on mobile Motorola-X-Style at OP No. 2 on dt. 15.10.2015 through OP No. 3 and OP No. 1 supplied the mobile being a retailer through Flipkart Com (OP No. 3) on dt. 24.10.2015 to complainant of Rs 31,995/- (Thirty one thousand-nine hundred ninety-five) the IMBI No- 352342070310222 and No- 352342070314729 of that mobile and invoice No- CHIN, PU ZHAL- 0120151000421271 bearing ID- OD204178638105000 and IN No- 336-696318777. After 4 to 5 months the said mobile did not function properly, the battery down 10% per hour without useing the mobile. So the complainant raised allegation on dt. 19.08.2016 within warranty period vide on line allegation work order No- B.H.V/MG/16/01574 and OP No. 1, 2 & 3 advised to deposit the mobile guarantee period and delivered mobile after 4 months i.e. on 19.11.2016 knowingly and intentionally caused unnecessary delay, though the complainant has gone so many times to OP No. 4 for returning back the repair mobile. The same defect was found in the mobile when the complainant uses it, as such he became mental shocked and harassed. The complainant informed to the OP No. 1, 2 & 3 over the phone and they advised to deposit the same in the workshop of the OP No. 4.
The complainant submitted the mobile before the OP No. 4 on 23.11.2016 for repairing, the said OP issued job sheet No- 12427 on 23.11.2016. The said OP repudiated the complaint mentioning that the warranty was over when the complainant protested with this the OP No. 4 said that after making discussion with OP No. 1 & 2 he can extend the warranty period but on 24.11.2016 he intimated to the complainant that he had to pay the repairing charges.
Under such circumstance the complainant was compelled the complainant who has filed this case in this Forum having sought for the reliefs as follows:-
1. The OP No. 1 & 2 be directed to replace a new mobile set in favour of complainant in place of alleged mobile.
2. The OP No. 1, 2 & 3 be directed to return back the purchaser value of Rs 31,995/- with interest of Rs 2,000/- to complainant.
3. All the O.Ps be directed to stop unfair trade practice for which the simple business man complainant sustained a loss his “Synocony Electronics” business of Rs 50,000/- because he could not contact his customers in this period.
4. Damages for harassment, mental agony and cost of pursutting for claim are assessed of Rs 14,000/- and all the O.Ps are liable to pay the same amount.
5. Cost of the present proceeding assessed at Rs 2,000/- be decreed against all the O.Ps.
Documents filed by the complainant (Xerox copies):-
1. Retail invoices/bill- 1 sheet.
2. One affidavit- 1 sheet.
3. Smart services job sheet No- 12427- 1 sheet.
ON the other hand the OP No. 1 & 3 have submitted their written version and the OP No. 2 & 4 have been set ex-parte. The OP No. 1 has submitted as follows:-
That the complainant has suppressed the truth and material facts have not approached to clean hand. The OP No. 1 has challenged the maintainability of this complaint. The OP No. 1, WS Retail Services Pvt. Ltd., is a company incorporated under the companies Act 1956, having its registered office at Ozone Manay Tech Park, No 56/18, “B” Block, 9th Floor, Garvebhavipalya, Hosur Road Bangalore 560068. The OP No. 1 is carrying on the business of sale of goods manufactured/produced by other manufactures. The OP No. 1 is a registered seller on the website “Flilkart.com” and sells products of others through the website. The OP No. 1 has acquired good market reputation for its range of products offered and for its exceptional customer support. The OP No. 1 has also challenged the cause of action of this complaint. The OP No. 1 has denied the entire the complaint story. That there has been no dispute contemplated under the CP Act between the complainant and the OP No. 1 as the OP No. 1 is not the manufacturer of the product sold to the complainant and has no facility or knowledge to ascertain whether the product in issue in the present complaint is defective or has manufacturing defects. That it is reiterated that OP No. 1 is an online reseller registered on “Flipkart.com”. OP No. 1 is not the manufacturer but an online reseller and the products sold by OP No. 1 carries warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms & conditions determined by the manufacturers only. Hence he has prayed for dismissal of this case.
The OP No. 3 filed his written version as follows:-
The OP No. 3 has denied all the allegation made by the complainant against him. He has challenged the maintainability of this complaint and the material facts has suppressed by the complainant. The company is engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (Mob App) (hereinafter collectively referred to as the “Flipkart Platform”). That the said ‘Flipkart Platform’ is an electronic platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers. The independent third party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart platform. That the OP No. 3 only acts as an intermediary through its web interface www.flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the users of the Flipkart Platform. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. The answering OP No. 3 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 the answering OP No. 3, on terms decided by the respective sellers only.
That is further submitted that, any kind of assurance, whether in terms of warranty on the products, Promotional Officers, after sale services or otherwise, are offered and provided by the manufacture of the products sold on Flipkart Platform. That it is pertinent to mention here that no relief sought against the answering OP No. 3 can be granted in the given facts and circumstances. The product purchased by the complainant has not been sold by answering OP No. 3 and answering OP No. 3 has no role in providing warranty of the product sold by an independent seller through the Flipkart Platform of the answering OP No. 3. The OP No. 3 is not involved in the entire transaction except for providing the online platform for the transaction(s) and the concerned contract(s) of sale and purchase is between the seller and the buyer (here complainant) only and hence this OP No. 3 shall not be held liable for any liability owing to such contract. This OP No. 3 is not involved in the entire transaction executed between the seller and the complainant. There is no privet of contract between the complainant and the OP No. 3 and, hence, OP No. 3 does not render any liability arising out of such contract. That the contents of Para No- 2 of the complaint in so far as the complainant ordered on mobile handset Motorola X Style (Here in after known as Mobile/Product) on 24/10/2015 THROUGH OP No. 3 is a matter of record. However, it is pertinent to mention here that the OP No. 3 is neither a seller nor the manufacturer/producer/service center of the product in this case and the same has been admitted by the complainant himself. The product purchased by the complainant was manufactured by OP No. 2 and sold by a third party seller registered on ‘Flipkart Platform’. It is further brought to the knowledge of this Hon’ble Forum that OP No. 3 only provides an online Platform where third party sellers sell their products and visitors/buyers purchase such products from the respective sellers on the website/app out of their own free will and choice. The OP No. 3 does not sell any product at its own either directly or through any third party seller.
Hence the OP No. 3 has sought for the dismissal of this complaint. The OP No. 2 & 4 have been set ex-parte. Documents filed by the OP No. 1 & 3.
1. Certified true copy of the resolution- 2 sheets.
OBSERVATION
We have gone through the facts of the complaint and the written versions as well as the documents filed by both the parties. We have found that the OP No.1 is a mobile retail sale/service center, the OP No. 2 is the mobile manufacturing company and OP No. 3 is one of the online booking supplier and OP No. 4 is one of authorized service center of mobile of OP No. 2 mobile company. The complainant ordered one mobile Motorola-X-Style at OP No. 2 on dt. 15.10.2015 through OP No. 3 and OP No. 1 supplied the mobile being a retailer through Flipkart.com (OP No. 3) on dt. 24.10.2015 to complainant Rs 31,995/- (Thirty one thousand- nine hundred ninety-five) the IMBI No- 352342070310222 and No- 352342070314729 of that mobile and invoice No- CHIN, PU ZHAL-0120151000421271 bearing ID – OD204178638105000 and IN No- 336696318777. After 4 to 5 months the said mobile did not function properly, the battery down 10% per hour without use the mobile. So the complainant raised allegation on dt. 19.08.2016 within warranty period Vide on line allegation work order No- B.H.V/MG/16/01574 and OP No. 1, 2 & 3 advised to deposit the mobile before OP No. 4 for repairing, the OP No. 4 repaired under guarantee period and delivered mobile after 4 months i.e. on 19.11.2016 knowingly and intentionally cause unnecessary delaying, through the complainant has gone so many times to OP No. 4 for return back the repair mobile.
Accordingly the complainant deposited the said mobile before the OP No. 4 . The said OP has repaired the mobile within guaranty period and delivered the same to the complainant after 4 months on 19.11.2016 which caused unnecessary delay. When the complainant used the mobile the same defects were found. Once again the complainant deposited the mobile on 23.11.2016 before OP No. 4. The documents filed by the OP which is the “product warranty” for 1 year. So it is evident that the complainant purchased the said mobile at OP No. 2 through OP No. 3 on 15.10.2015 i.e. within the warranty period. After repairing the OP No. 4 should have return back the mobile to the complainant in time but he caused inordinary delay and delivered the same on 19.11.2016 knowingly but it was found that the said mobile was out of order and could not be function properly. The complainant submitted the said mobile before the OP No. 4 who charged the repairing cost on 24.11.2016. The complainant was heavily socked with the odd behavior. The allegation made by the complainant is just and proper. It is not beyond the limitation because it has been clearly mentioned that the warranty period was for one year. The said mobile was defected within one year. The same cause of action was continued till the last date of the repudiation. According to the written versions filed by both the O.Ps No. 1 & 3 are that No- 1. Limitation, 2- Maintainability, 3- lack of cause of action etc are meaningless. The O.Ps have taken the false plea the avoid claim of the complainant. All the O.Ps should have maintained the honesty, the fairness and the sanctity of their business. On the other hand they have caused deficiency of service and unfair trade Patrice towards the complainant.
The OP No. 2 & 4 have avoided the appearance before the learned Forum so also failed to file their written versions. If they would have appeared and filed their respective written version, the truth should have been elicited. It is well proved that both the O.Ps Vide No- 2 & 4 have hidden themselves as well as they have played hide and seek with the learned Forum. The O.Ps have not come to this Forum clean handed because the OP No. 1 & 3 have suppressed the truth and described some fictions and exaggerated story. Hence it is ordered;
ORDER
The complaint be and the same is allowed on contest against the OP No. 1 & 3 & ex-parte against the OP No. 2 & 4. The OP No. 1 & 2 are here by directed to replace a new mobile set in favour of the complainant in place of the alleged mobile. Or all the O.Ps are here by directed to return back purchase value of the mobile set which is amount to Rs 31,995/- along with 9% interest per annum. All the O.Ps be directed to pay Rs 5,000/- towards mental agony as well as Rs 1,000/- for cost of the litigation to the complainant within 30 days from receipt of this order.
This order is pronounced in the open Forum on this day of 7th May, 2018 under my hand and seal of the Forum.
