BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.663/2015

DATED ON THIS THE  27^th October 2017

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                B.E., LLB., PGDCLP    - MEMBER

Sri DEVAKUMAR.M.C,

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act 1986, against the opposite parties, alleging deficiency in service and seeking a direction to replace the defective mobile by defect free mobile and to pay Rs.40,000/- towards the loss suffered and compensation for a sum of Rs.50,000/- for the mental agony with such other reliefs.
2.    The complainant purchased a mobile phone through online, by placing an order through opposite party No.4 for a sum of Rs.16,715/-.  The said mobile was sold by opposite party No.2, manufactured by opposite party No.1.  The phone developed problem with touch screen.  The mobile was handed over to the authorised service centre, i.e. opposite party No.3 on 10.08.2015, for rectification of the defects.  The opposite party No.3 issued a job sheet and assured to rectify the defects and to return the phone after a week.  But, failed to do so.  On demand for return of the mobile phone, or to replace the phone, the opposite party No.3 expressed a minimum of 8 months needed to replace the phone.  Thereby, the aggrieved complainant alleged that, opposite party Nos.1 and 2 are selling defective mobile without any checks, as such committed unfair trade practice.  The opposite party No.3 the authorised service centre of opposite party No.1 is also alleged to be liable for not providing adequate services and the opposite party No.4 is liable for promoting such an unworthy mobile from the manufacturers, such as opposite party No.1.  Hence, the complaint seeking reliefs.
3.     Except opposite party No.4, other opposite party Nos.1 and 3 remained absent.  Hence, placed exparte.  Opposite party No.4 filed their version denying the allegations and submitted that, it provides only a platform by facilitating online sale of products of various sellers.  As such, strongly submits that they are not liable to indemnify the loss suffered due to sale of defective items/products by the third party sellers.  So opposite party No.4 prays for dismissal of the complaint against them, with exemplary cost.
4.     To establish the facts, the complainant filed affidavit in lieu of his examination and relied on several documents.  Opposite party No.4 lead evidence and relied on judgements rendered by the Hon’ble National Commission, in support of their contention.  Perusing the material on record, matter posted for orders.
5.     The points arose for our consideration are:-

1. Whether the complainant establishes the deficiency in service and unfair trade practice by the opposite parties, in selling a defective products and failure to rectify the defects as alleged and thereby he is entitled for the relief sought?
2.  To what order?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- The complainant purchased micromax mobile phone manufactured by opposite party No.1 and sold by its authorised dealer opposite party No.2.
8.    The complainant was lured by the advertisement and purchased a micromax canvas knight A350 black and gold and placed an order through opposite party No.4 on 06.02.2015.  The mobile phone was delivered on 11.02.2015 on payment of Rs.16,715/-.
9.    The retail invoice disclosed the address of the seller i.e. opposite party No.2.  The said mobile developed problem in its touch screen after the lapse of about six months from the date of its purchase.
10. The mobile phone was submitted to the authorised service centre i.e. opposite party No.3, on 10.08.2015, for rectification of the defects.  A job sheet was issued by opposite party No.3 and assured to return the mobile phone duly rectifying the defects.  The opposite party No.3 failed to return the mobile phone as promised, despite of repeated demands.  The opposite party No.3 informed that, the touch screen is damaged and the same cannot be repaired.  Exchange of the defective mobile requires more than 8 months period.
11. The complainant alleged that, the opposite party No.1, sold the defective mobile without proper quality inspection, thereby the aggrieved complainant alleged the deficiency in service and unfair trade practice.  Hence, the complaint and sought for the reliefs.
12. The opposite party No.4 contended that, it is an online marketing platform under the brand name/trademark “snapdeal”.  It act as intermediary to facilitate sale transactions between independent 3^rd party sellers and independent customers.  The opposite party No.4 enables the 3^rd party sellers to list, advertise and offer to sell their products and services to the users / buyers.  The opposite party No.4 does not directly/indirectly sells any products.  The seller directly raises the invoices to the buyers in respect of the product sold and the buyers directly make the payments for the items they received.  The assurances with respect to product quality, warranty etc., are provided either by the manufacturer or by the sellers only.  Thereby, opposite party No.4 contended that, the present complaint against them is based on misconceived baseless assumptions, as such, the complaint is not maintainable against them and hence, prayed for dismissal of the complaint with cost.
13. Considering the pleadings and the contention of both sides, the mobile phone suffered with touch screen problem and the same could not be rectified, even by the authorised service centre of the manufacturer.  An inordinate delay was caused, thereby, the complainant was made to suffer.  The opposite party No.4 herein, has provided a platform to sell the products manufactured by opposite party No.1, marketed through its authorised dealers at various cities across the country.  Therefore, we opine that, opposite party No.4 is not liable for any defects found in the mobile phone.  Only the opposite party No.1 and opposite party No.3 who are the manufacturer and the authorised service centre, are liable to rectify the defects found in the product or to replace the defective products with new defect free product.  Accordingly, only opposite party Nos.1 and 3 are held liable to pay the compensation to the complainant for his sufferings.  Hence, point No.1 is answered partly in the affirmative.
14. Point No.2:- In view of the above discussions on point no.1, we proceed to pass the following

:: O R D E R ::

1. The complaint is partly allowed.
2. The opposite party Nos.1 and 3 are jointly and severally hereby directed to rectify the defects found in the mobile phone, free of cost within 60 days of this order, from the date of submission of the mobile phone by the complainant

OR

In the alternative to replace the defective mobile phone by new mobile phone with similar feature of the mobile phone sold, within 60 days of this order

OR

In the alternate, the opposite party Nos.1 and 3 jointly and severally shall pay the value of the mobile phone i.e. Rs.16,715/-, by collecting the defective mobile phone from the complainant, within 60 days of this order.

3. The opposite party Nos.1 and 3 are jointly and severally shall pay Rs.5,000/- towards the deficiency in service and Rs.2,000/- towards cost of the litigation to the complainant within 60 days of this order.  Failing to pay, the opposite party Nos.1 and 3 are liable to pay interest at 10% p.a. on the said total sum of Rs.7,000/- until payment made.
4. If the opposite parties failed to comply this order, opposite party Nos.1 and 3 are liable for prosecution under section 27 of the C.P.Act.
5. Complaint is dismissed against opposite party No.4.
6.  Give a copy of this order to both parties, as per Rules.

 (Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 27^th October 2017)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT      

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER