BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P.V.JAYARAJAN                                           :  PRESIDENT

SMT. PREETHA G. NAIR                                     : MEMBER

SRI. VIJU V.R                                                          : MEMBER

C.C. No. 331/2021  (Filed on 01.11.2021)

ORDER DATED: 27.06.2024

Complainant:

Vishnu M.S., Resmi Bhavan, Tharatta, Malayinkeezhu, Malayinkeezhu P.O., Kattakkada, Thiruvananthapuram.

(Party in person)

Opposite parties:

1. Manager, GEECEL (Mi Authorized Service Centre), First Floor, Vijaya Tower, NH Road, Killippalam, Karamana, Thiruvananthapuram-695002.
   1.  
2. Flipkart Internet Private Limited, Buildings Alyssa, Begonia & Clove Embassy Tech Village, Outer Ring Road, Devarabeesanahalli Village, Bengaluru-560 103, Karnataka.

(By Adv. Sarosh Kattakkalil for OP2)

ORDER

SRI. P. V. JAYARAJAN:  PRESIDENT

This complaint is filed under Sec. 35 of the Consumer Protection Act, 2019 and the matter stood over to this date for consideration.  After hearing the matter this Commission passed an order as follows:

2.  This is a complaint filed by the complainant against the opposite parties alleging deficiency in service on the part of the opposite parties.  After admitting the complaint notice was issued to the opposite parties to appear before this Commission on 09.12.2021.  The notice issued to 1^st opposite party was served on 22.11.2021.  When the case came up for consideration on 09.02.2021, the 1^st opposite party was absent and there was no representation and hence the 1^st opposite party was called absent and set ex-parte.  The 2^nd opposite party entered appearance and filed written version denying the allegations raised by the complainant. 

3.  The case of the complainant in short is that the complainant placed an order for a mobile phone (MI A3) through the 1^st opposite party on 18.09.2020.  The product was delivered to the complainant on 30.09.2020.  After three months from the date of purchase, the display of the mobile phone stopped and hence the complainant approached the 2^nd opposite party which is the authorized service centre.  The 2^nd opposite party refused to repair the product under warranty on the ground that the said product is secondary sales unit and hence warranty was rejected.  The complainant further submitted that he had placed order for new MI A3 mobile phone worth Rs. 13,749/-.  But he was delivered with a secondary sale unit according to the 2^nd opposite party.  As the complainant is in very much need of a mobile phone, he was forced to replace the display of the mobile phone by spending Rs. 5,520/-.  Hence alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant approached this Commission for redressing his grievances.

4.  The 2^nd opposite party filed written version contending that the 2^nd opposite party merely acts as an intermediary through its web interface flipkart.com and provides a medium to various sellers all over India to offer their products for sale.  According to the 2^nd opposite party these sellers are separate entities who are being controlled and managed by different persons/stakeholders.  The 2^nd opposite party further submitted that they are not directly or indirectly sell any product on the Flipkart platform.  According to the 2^nd opposite party all the products on the Flipkart platform are sold by the third party sellers who avail the online marketplace services provided by the 2^nd opposite party upon terms decided by the respective sellers.  The 2^nd opposite party further contended that the seller is responsible for delivery of the goods to the customers.  According to the 2^nd opposite party, the 2^nd opposite party is not involved in the entire transaction executed between the seller and the complainant.  There is no privity of contract between the complainant and the 2^nd opposite party and hence the opposite party does not render any liability arising out of such contract.  The 2^nd opposite party denies the allegation of the complainant that there is deficiency in service on the part of the 2^nd opposite party.  Hence prayed for dismissal of the complaint. 

          5.  The evidence in this case consists of PW1 and Exts. A1 to A5 from the side of the complainant.  Though the 2^nd opposite party filed affidavit, no documents were marked.  The 1^st opposite party being declared ex-parte, there is no evidence from the side of the 1^st opposite party. 

6.  Issues to be considered are:

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite party?
2. Whether the complainant is entitled to the reliefs claimed in the complaint?
3. Order as to costs?

7.  Issues (i) to (iii): Heard.  Perused the affidavit, documents and records.  To substantiate the case of the complainant, the complainant himself sworn an affidavit as PW1 and Exts. A1 to A5 were produced and marked.  Ext. A1 is the invoice for Rs. 13,749/- issued by the opposite party.  Ext. A2 is the service record of the mobile phone in respect of the first inspection.  Ext. A3 is the invoice for repair of the display.  Ext. A4 is the service record regarding the display replacement.  Ext. A5 is the screen shot of Flipkart platform.  Ext. A1 proves that the complainant has paid Rs. 13,749/- to the opposite party towards consideration for the purchase of the mobile phone.  Ext. A2 proves that the complainant approached the service centre with a complaint of display problem.  Ext. A3 proves that the complainant subsequently replaced the display by paying amount.  Ext. A4 service record proves that the defect in display was rectified.  It is pertinent to note that the defect was occurred during the warranty period.  There is no contra evidence from the side of the opposite party to discredit the evidence adduced by the complainant and hence the evidence adduced by the complainant stands unchallenged.  In the absence of any contra evidence from the side of the opposite parties, we accept the evidence adduced by the complainant.  By swearing an affidavit as PW1 and by marking Exts. A1 to A5 documents, we find that the complainant has succeeded in establishing his case against the opposite parties.  Though the 2^nd opposite party has raised serious contentions in the written version, other than filing an affidavit, the 2^nd opposite party failed to adduce any evidence supporting the contentions raised in the written version.  It is well settled legal proposition that mere pleadings alone is not sufficient to discredit the case of the other side.  It is also an approved principle that the party who alleges a fact has to prove that fact.  From the available evidence before this Commission and in the absence of any evidence from the side of the opposite parties, we find that there is deficiency in service and unfair trade practice on the part of the opposite parties.  It is also evident from the available evidence before this Commission that the complainant has suffered mental agony and financial loss due to the act of the opposite parties.  As the mental agony and financial loss to the complainant was caused due to the deficiency in service and unfair trade practice on the part of the opposite parties, we find that the opposite parties 1 & 2 are jointly and severally liable to compensate the loss sustained by the complainant.  In view of the above discussion, we find that this is a fit case to be allowed in favour of the complainant.                In the result, the complaint is allowed.  The opposite parties 1 & 2 are jointly and severally directed to pay Rs. 13,749/- (Rupees Thirteen Thousand Seven Hundred and Forty Nine only) along with Rs. 7,500/- (Rupees Seven Thousand Five Hundred only) as compensation and Rs. 2,500/- (Rupees Two Thousand Five Hundred only) being the costs of this proceedings to the complainant within 30 days from the date of receipt of this order failing which the amount except cost shall carry an interest @ 9% per annum from the date of order till the date of remittance or realization. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 27^th day of June 2024.

              Sd/-

P.V.JAYARAJAN                : PRESIDENT 

               Sd/-

PREETHA G. NAIR           : MEMBER

             Sd/-

                                                     VIJU V.R                          : MEMBER

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C.C. No. 331/2021

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - Vishnu M.S.

II       COMPLAINANT’S DOCUMENTS:

          A1     - Copy of invoice issued by opposite party

          A2     - Copy of service record of the mobile phone.

          A3     - Copy of invoice for repair of the display

          A4     - Copy of service record

          A5     - Screen shot of Flipkart platform

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Sheetal Tiwari, Legal Counsel-II     

 IV     OPPOSITE PARTY’S DOCUMENTS:

                   NIL

                                                                                               Sd/-

                                                                                      PRESIDENT

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