BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-89/2016

Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).

Mr. Rajesh Mahanty,

S/O- Binod Bihari Mahanty,

Muthoot Finance Ltd,Gaeity Talkies Road,

Beside Bank of Maharastra, Golebazar

Sambalpur-768001.                                                                          …..Complainant

Vrs.

1. Managing Director Through ,

Customer Satisfaction Manager,

Motorola Mobility India Pvt. Ltd,

Build No-74,12 th Floor,Tower-D,Dif Cyber Green,

2. Flipkart Internet Pvt. Ltd,

Mr. Krishna Salunke, Vaisnavi Summit,

Karnataka, India.

3. M/S WS Retail Services India Pvt. Ltd,

Tapas Jagadesh Rudrapatana,

Ozone Manay Tech Park, No-56/18,

Hosur Road,Banalore,560068,

4.  Smart Services,

Sector-15/E(666),In front of Lane -4,

Bapuji Nagar, Bhubaneswar, Odisha-751009.

Counsels:-

1. For the Complainant:-    Self
2. For the O.P-1       :-          None
3. For the O.P-2 & 3:-          Sri A.K.Sahoo, Advocate & Associates.
4. For the O.P-4       :-          None

DATE OF HEARING : 01.03.2021, DATE OF ORDER : 22.03.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant on dtd 21.10.2014 ordered a Motorola MOTO-E from the O.P-2 who is an online market place  on payment of Rs.6,299/- vide cash memo receipt no- 301075905743768500 having IMEI serial No-353317066108847 manufactured by the O.P-1. The said phone abruptly stopped functioning in January-2014 and the matter was reported to Motorola Customer care. The Customer Care centre advised the Complainant to make contact with the nearest authorised service station who is the O.P-4 in this case. The Complainant visited the O.P-4 narrated all the problems and handed over the mobile phone to him. The O.P-4 issued a general receipt and asked to come on the next day. On the next day the Complainant reached at the O.P-4 received the mobile phone from him and found that all the downloaded software in the mobile was deleted and battery was fully charged. On reaching home he plug –in the charger to his mobile found that the battery  fell to 20% charge  and after few minutes the battery signal was red  and dropped to 5% and finally the phone became switched off. As per the advice of Motorola support team the Complainant again visited the O.P-4 and requested him to prepare a job card but he denied and advised the Complainant to come on the next day. I reported the matter to Motorola Customer support centre on dtd.05.02.2015 at 10.47 a.m from his mobile who after one hour assured me to solve the problem very soon. After several visits the O.P-4 said that he has fixed the problem but when the Complainant requested him to check it in front of him he denied and finding no option he (The Complainant) returned home without checking its functioning. But when the mobile has shown the same problem, on contact with the support team they advised me to deposit the charger. Later on he replaced the original charger with a different model charger MOTO-SSW2285  but problem is still continued. The Complainant on dtd. 14.04.2015 sent a mail to the customer care centre with a request to replace the defective mobile but received no response for which the Complainant alleged that the services provided by the O.Ps are deficient hence finding no alternative he filed this case to sought certain relief from this Commission.EU

The O.P-2 is a company engaged in providing trading/selling facilities over the internet through its websites www.flipkart.com and mobile application collectively referred as Flipkart Platform. The Flipkart Platform is an electronic which acts as an intermediary to facilitates sale transaction between independent third party sellers and independent end customers. The independent third party sellers use the platform to list ,advertise and offer to sell their products to the users/buyer who visit the said platform. The O.P-2 is an intermediary here. The O.P-2 does not directly or indirectly sells any products on Flipkart platform rather those are sold by third parties. The O.P-2 is neither a trader nor a service provider. The Complainant has purchased the product from one of the sellers listed on Flipkart Platform which is evident from the copy of seller tax invoice which clearly states that the order is THRUOGH Flipkart. Hence the present complaint is not maintainable for which it deserves to be dismissed.

The O.P-3, M/S WS Retail Services Private Ltd is carrying on business  of sale of goods through the website” flipkart.com”  and sells the goods/products  of other manufacturer or producer through the website. The O.P-3 sells products carry’s manufacturer warranty only and in the present case the O.P-1 is the manufacturer. Liability to provide after sale service does not lies on the O.P-3 and he has no opportunity to ascertain whether the product in this case is defective or has manufacturing defects. As there is no disputes between the Complainant and O.P-3 the case deserves to be dismissed.

The O.P-4, despite of service of notice he did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose the case as well setting the O.P-4 as ex-parte in this case. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has placed an ordered to purchase a new Motorola mobile on dtd 21.10.2014 of model MOTO-E with the  O.P-2 who is an online market place. The said mobile was delivered to the Complainant by the O.P-3 who received the payment of Rs.6,299/- vide Tax Invoice no-DEL20141000441422 dtd. 22.10.2014 . Again it is seen that the O.P-2 is a company engaged in providing trading/selling facilities over the internet through its websites www.flipkart.com and mobile application collectively referred as Flipkart Platform. It provides an electronic Platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers. Also it is inferred that the business of the O.P-2 falls within the definition of an intermediary under section 2(1)(w) of the Information and Technology Act,2000. As an intermediary the O.P-2 is protected by the provisions of section 79 of I.T act-2000. The role of the O.P. No.2 is limited to that of a facilitator, and the products available on the Website of the O.P. No.2 are sold by third party sellers.  The complainant placed an order for the Product, manufactured by the O.P. No.1, from the website of the O.P. No2  on 21.10.2014 and the said product was delivered to the complainant. The product in question was delivered to the complainant in a sealed box as it was received from the manufacturer and/or the seller.  Again there is no privity of contact between the Complainant and the O.P-2. The Complainant has purchased the product from one of the sellers listed on Flipkart Platform which is evident from the copy of seller tax invoice which clearly states that the order is THRUOGH Flipkart.   Similarly the O.P-3, M/S WS Retail Services Private Ltd is carrying on business  of sale of goods through the website” flipkart.com”  and sells the goods/products  of other manufacturer or producer through the website. It has no liability to provide after sale service and he has no opportunity to ascertain whether the product in this case is defective or has manufacturing defects.  The complainant has specifically pleaded that the  mobile handset was giving problem and it was not working properly and battery was becoming discharged. The  mobile was replaced and another mobile charger of some other model was given by the O.P-4 . The same problems were also existed in the second mobile charger. Accordingly the problems were not cured. And the mobile was functioning. The O.P. No.1 & 4 did not appear before the District Commission and even before this Commission, therefore, allegations made by the complainant regarding selling defective mobile hand set is reliable. The complainant was provided defective mobile hand set by the manufacturing company. The O.P. No.1 sold the mobile hand set to the complainant and the complainant received mobile handset from the O.P. No.3. As the defect in the mobile hand set is continuing from the beginning and the defect had occurred in the mobile set within the warranty period but Ops were at least required to repair it. Neither they repaired it nor did they return the mobile phone to the complainant, which amounts to deficiency in service on the part of Op-1 & 4. This matter has been well settled in the case of Pallavi vs. Apple India Pvt. Ltd. decided by the State Consumer Disputes Redressal Commission ,Punjab , Chandigarh on 7^th  September, 2017.Hence we order as under-:

ORDER.

Complaint filed by the complainant is accepted and O.P-1 & 4 are jointly and severally directed as under:-

1. to repair the hand set/mobile phone Motorola MOTO-E having IMEI serial No-353317066108847of the complainant to his satisfaction within a period of 30 days from the date of receipt of the order passed by this Commission with fresh warranty of one year of the repaired parts;

OR in case the mobile is not repaired to the satisfaction of the complainant then O.Ps will refund a sum of Rs. 6,299/- to the complainant along with interest @ 9% p.a. from the date of filing the complaint till payment.

2. O.Ps are further directed to pay Rs. 8,000/- (Eight Thousand) as lump sum amount for compensation and litigation expenses.

            Order pronounced in the open court today i.e, on 22^nd day of March-2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

         I agree,

       -sd/-(22.03.2021)                                                                           -sd/-(22.03.2021)

        Smt. S.Tripathy                                                                          Sri. D.K. Mahapatra

        MEMBER.(W)                                                                             PRESIDENT

                                                                 Dictated and Corrected

                                                                             by me.

                                                                        -sd/-(22.03.2021)

                                                                       Sri. D.K. Mahapatra

                                                                         PRESIDENT