Punjab

Ludhiana

CC/16/19

Shubham Kapoor - Complainant(s)

Versus

Micromax Mobile - Opp.Party(s)

sunil kapoor Rep.

22 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 19 of 04.01.2016

Date of Decision            :   22.02.2017 

 

Shubham Kapoor son of Sh.Sunil Kapoor son of Sh.Ram Nath Kapoor, resident of Block-1, House No.631/09, Kundanpuri, Civil Lines, Ludhiana-141001.

….. Complainant

                                                         Versus

 

1.Customer Service Head, Micromax House, 90-B, Sector 18, Gurgaon, Haryana-122015.

2.M/s SP – S.G.S. Communication, Shop No.6, Pearl Palace, Basement, Ghumar Mandi, Ludhiana, Punjab-141001 through the concerned.

3.Customer Service Head, Flipkart.com, 1^st Floor, House No.447/C, 1^st A Cross, 12^th Main, 4^th Block, Opposite BSNL Telephone Exchange, Koramangla, Bangalore-Karnataka-560034.

…Opposite parties

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :          Sh.Sunil Kapoor, Representative

For OP1 and OP2           :          Sh.Rishi Bansal, Advocate

For OP3                         :         Sh.Govind Puri, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant had been pursuing 4^th year degree course in B.Tech (Information Technology). With a view to get optimal online study benefits, the complainant has placed an order for Android phone of Micromax Canvas A-1 with Flipkart.com i.e. OP3 on 23.12.2014. The said phone having IMEI/ESN No.911380456358450/ 911380456858954 was delivered to the complainant at Ludhiana on 26.12.2014 against price of Rs.5700/-. Said phone developed        problem in its power system because it used to go on switch off mode automatically in the month of October 2015. This phone stopped working since October, 2015 and as such, complainant handed over the same to OP2 vide job sheet dated 20.10.2015. OP2 assured the complainant that phone would be returned in a day or two after doing the needful. However, despite repeated requests, OP2 failed to provide the alternate phone to the complainant in lieu of the demised phone, which lying deposited with OP2. Earlier to this, in July 2015, this mobile phone had developed problem with its graphic system and that is why this phone was deposited with OP2 vide job sheet dated 13.7.2015. At that time, Op2 kept the phone for more than two months without any rhyme or reason. Alternative mobile phone at that time even was not provided to the complainant. OP1 and OP3 sold the defective phone to the complainant, due to which, he suffered huge loss in study and underwent immense tension. Email dated 19.11.2015 was sent to OP1, but no response was received. Telephonic request to OP2 was submitted on 26.11.2015, but to no avail. OP1 and OP2 have done nothing for redressing the grievance of the complainant. Reminder-cum-notice dated 29.11.2015 through email was submitted for calling upon Ops to refund the amount of phone in question along with interest and compensation, but to no avail. It is claimed that Ops have indulged in unfair trade practice and restricted trade practice. Compensation of Rs.4 lac along with litigation expenses of Rs.11,000/- and punitive damages of Rs.80,000/- as well as refund of price of phone of Rs.5700/- with interest claimed.

2.                 OP1 and OP2 failed to file the written statement, despite grant of sufficient chance and as such, on failure of Op1 and OP2 to submit the written statement, case was ordered to be proceeded further vide orders dated 24.5.2016 without obtaining written statement of OP1 and OP2.

3.                Op3 submitted the written reply by claiming that the complainant has suppressed the material facts by concocting a story. Besides, it is claimed that relief against OP3 has not been claimed and as such, complaint against OP3 liable to be dismissed. Op3 in fact is Flipkart Internet Private Limited company duly registered under the Companies Act, 1956. OP3 provides online marketplace/platform/ technology over internet through its website for rendering mechanism/services to the sellers and buyers of the products to facilitate  their transactions only. OP3 is protected by the provisions of Section 79 of the Information Technology Act, 2000. Complainant is not a consumer of OP3. There is no privity of contract between the complainant and OP3 and as such, complaint against Op3 is not maintainable. Complaint alleged to be bad due to non joinder of OP3 as party. OP3 has an intermediary role only to provide online platform for facilitating the entire transaction of sale and purchase of goods between the sellers and buyers. OP3 has no right, title or interest in the sold products and as such, OP3 is not responsible for the unsatisfactory condition of the sold products. Each and every other averment of the complaint denied.

4.                Complainant to prove his case tendered in evidence affidavit Ex.CA, the representative along with documents Ex.C1 to Ex.C13 and thereafter, representative of complainant closed the evidence.

5.                On the other hand, counsel for OP1 and OP2 suffered statement that he does not want to lead any evidence. Counsel for OP3 tendered in evidence affidavit Ex.RA3 of Mr.Jatin Gulati, authorized signatory of OP3 and then closed the evidence.

6                 Written arguments not submitted by any of the parties. Oral arguments of representative of complainant and counsel for Ops heard and records gone through carefully.

7.                Invoice Ex.C4 produced to show that the mobile phone in question i.e. Micromax Canvas A1 was purchased by the complainant online from Super Saver E-Commerce Pvt. Ltd. Perusal of affidavit Ex.RA3 of Mr.Jatin Gulati establishes that function of OP3 is to facilitate the online transactions between the customer and seller and it has no role in the matter of sale otherwise. As per Section 79 of the Information Technology Act, 2000, intermediary provides the platform in initiating the transmission of sale and purchase and is not liable to 3^rd party. As the information or data or communication provided by OP3 to the complainant paved way for the purchase of the mobile phone in question from Super Saver E-Commerce Pvt. Ltd and as such, certainly OP3 neither being retailer and nor manufacturer or the service centre not liable in respect of the defects in the mobile phone purchased by the complainant through invoice Ex.C1. So, by accepting the submissions of Sh.Govind Puri, Advocate for OP3, it is held that complaint against OP3 is not maintainable.  

8.                Perusal of job sheet Ex.C2 of date 20.10.2015 reveals that the mobile phone was deposited by the complainant with OP2, the service centre because of problem of power does not switch on. It is the case of complainant that OP1 and OP2 have not returned this phone after repair, despite the same being deposited on 20.10.2015. That fact not denied by way of filing any written statement or any evidence produced by OP1 and OP2. This mobile phone not returned to the complainant despite issue of reminder Ex.C5 dated 19.11.2015 through email and as such, certainly submissions advanced by representative of complainant has force that mobile phone in question retained by OP2 without any rhyme or reason. Though through Ex.C5, refund of price or the replacement of the mobile phone with new one was sought, but despite that response was not received from Ops and as such, certainly there is deficiency in service on the part of OP1 and OP2.

9.                If earlier the mobile phone in question was deposited with OP2 on 13.7.2015 qua problem of display black line as revealed by contents of Ex.C3,        then in view of return of the mobile after repair, it has to be held that no deficiency in service on the part of Ops was at that time. Sometime in repair time bound to be taken particularly when in case of need, spare parts to be replaced because same to be fetched from the manufacturer and as such, if delay earlier occurred in return of the repaired mobile, then the same cannot be termed as a deficiency in service on the part of Ops.

10.              Though, it is the case of complainant that mobile phone in question was purchased by him for getting the optimal online study benefits, but despite that mention of the same not made in the affidavit Ex.C1 or any other documents like as Ex.C2 to Ex.C5. So, virtually the purpose of this purchase was not disclosed by the complainant to Ops at the time of purchase. In case, complainant had to purchase another mobile phone of Rs.20,999/- through invoice Ex.C6 on 3.1.2016, then the same was purchased for sake of his convenience by the complainant only. Document Ex.C8 shows that the complainant is studying and is away for practical training w.e.f.January 2016 to June 2016. As the purpose of purchase was not disclosed to the Ops or any of them and as such, virtually remote damages claimed due to mobile phone going nonfunctional after 20.10.2015. Remote damages cannot be provided because Consumer Law is not meant for giving undue benefits to the consumers. Consumer Fora have not been established for earning profit cell is the law laid down in case Sushil Kumar vs. Madan Mobile Gallery and others-2015(2)CLT-574(Haryana State Consumer Disputes Redressal Commission, Panchkula). Ratio of this case is fully applicable to the facts of the present case in view of the above pointed circumstances and as such, in view of non return of the repaired mobile phone w.e.f.20.10.2015 onwards, complainant entitled for new mobile phone in lieu of old one, but of equal             worth of Rs.5700/- only. As compensation for remote damages not to be provided and as such, keeping in view the worth of the mobile phone as Rs.5700/-, complainant entitled for meager compensation for mental harassment and litigation expenses, particularly when no Advocate engaged for filing this complaint at any stage.

11.              As a sequel of the above discussion, complaint against OP3 is dismissed, but same allowed against OP1 and OP2 in terms that OP1 and OP2 will hand over the new replaced mobile set in lieu of old one, of worth of Rs.5,700/- within 30 days  from date of receipt of copy of this order. That replaced mobile will carry extended warranty of two months only from the date of delivery to complainant. Compensation for mental harassment of Rs.1,500/- (Rupees One Thousand Five Hundred only) and litigation expenses of Rs.1,500/- (Rupees One Thousand Five Hundred only) more allowed in favour of complainant and against OP1 and OP2, whose liability held as joint and several. Payment of these amounts be also made to complainant within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

12.                        File be indexed and consigned to record room.

         

                   (Param Jit Singh Bewli)                                        (G.K. Dhir)

                                                Member                                                President

Announced in Open Forum                                                              Dated:22.02.2017

Gurpreet Sharma.