Orissa

Rayagada

CC/65/2017

Sri Monoj Kumar Senapati - Complainant(s)

Versus

Mobile Galary Sector - Opp.Party(s)

Self

04 Jun 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 65 / 2017.                                              Date.   04      .     6  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri  Gadadhara Sahu,                                            Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Manoj Kumar Senapati, S/O: Debenda Senapati, At: Serikona, Po:Halwa,       Dist:Rayagada  (Odisha). Cell No.9439229733, 9937672333.    …. Complainant.

Versus.

1.The Manager, Mobile Galaxy,  SCO-75,  Secor-12A, Opposite Telephone Exchange, Old Delhi    Road, Gugaon, HR-12201, India, Phone No. 9999453598.

2.The Manager, Shopclues Network Pvt. Ltd., Building No. 112, Sector-44, Gurgaon-122001, Haryana, India.

3.The Manager, F-1   Info solutions  & Services Pvt. Ltd., Door No. 50-50-14/11, Ground floor, Behind Gurudwar, Seetamadhara, TPT Colony,  Visakhapatnam- 530013.    .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Sri  R.K.Padhy and associates, Advocate, Rayagada.

For the O.P No.1 & 3   :- Set exparte.

For the O.P. No.2:-  Sri  Ramesh  Kumar Sana, Advocate, Rayagada.

JUDGEMENT

          The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for   non  refund of  mobile price  a sum of Rs.8,999/- which was defective during warranty period  for which  the complainant  sought compensation  inter alia  for redressal of the grievances raised by the complainant.

        On being noticed  the O.Ps 1 & 3   neither entering in to appear before the forum nor filed their  written version inspite of more than  07 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around one year   for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps. The action of the O.Ps 1 & 3  are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.Ps  1 & 3   are  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

        On being noticed the O.P. No.2 appeared  through their learned counsel  and filed written version.  The O.P. No. 2  submitted that  the present complaint is not maintainable and liable to be dismissed against the O.P.No.2.  As the O.P.No. 2  is protected  by the provisions of Section-79 of the Information  Technology Act, 2000. The  O.P. No.2 neither offers  nor provides any assurance and/or offers  warranty   to the end    buyers  of the  product.   The  O.P. No.2 is neither  a  ‘trader’ nor a ‘service provider’ and there does not exists any privity of contract   between the complainant and  the O.P. No.2.  The O.P. No. 2  is only  limited  liabilities to providing on  line platform  to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its  website.  Therefore  the O.P. No.2 prayed to dismiss the complaint petition against   O.P. No.2 for the best  interest   of justice.

The O.P  No. 2   appeared and filed their written version.  Arguments from the   O.P No.2   and from the complainant  heard.   Perused the record, documents, filed by   the parties. 

 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law                                           

         FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had purchased a mobile set Model No. Asus Zenfone Max ZC550KI black, batch  No. 351976083967766 from the O.P.  No.1   by paying a sum of Rs.8,999/-  on Dt. 12.01.2017 through O.P. No.2 on line  purchase   bearing retail invoice No. SHOPClUES-35319 with  one year warranty (Copies of the  retail invoice of the O.P.No.2 Dt.12.1.2017 and  Bill  copy of the  O.P. No.1  Dt. 11.1.2017  are in the file which are marked As Annexure-I & Annexure-2). But unfortunately after  some  months  of its purchase  the above  set found defective and not functioning. The complainant complained the O.Ps Service centre i.e. the O.P. No.3   for necessary repair 3 Times i.e.  on Dt. 7.4.2017, Dt. 26.6.2017, Dt.11.8.2017 ( Copies of the Service centre report is in the file which are marked as Annexure-3,4,5).  In spite of repeated attempt by the Service engineer of the O.Ps the  above set could  not  run for longer time.   The complainant further approached the O.Ps for return the money which he spent but for no use.  In turn the OPs paid deaf ear.  Hence this  C.C. case            

                   In support of his case the O.P. No.2 cited  citations in their written version  as laid down by the Apex Court as well as Commissions in the following cases.

 

                  The Hon’ble High Court of Delhi in the case of  Kent RO Systems Ltd. and another  Vrs. Amit Kotak &  Ors. CS(COMM) 1655 /2016 vide order Dtd. 18.1.2017 has succinctly  pointed out that the  provisions of the IT Act and the IT Rules framed there under do  not obligate an intermediary to, of its own, screen all the   content being posted on its portal for infringement of any rights or laws. The court stated that an intermediary is not possessed with the prowers nor is mandated by law, to identify every single case of infringement or violation, unless they are expressly made aware of the same.

 

                     The Hon’ble Supreme Court of India in the case  of Shreya Singhal Vrs. Union of India AIR-2015 SC 1523, held that an  intermediary would be liable only  if it  fails  to take down online content despite receipt of ‘actual knowledge’ of infringement or violation through a court order intimating the same. The Hon’ble Supreme Court specifically recognized that in light of the volumes of data  that intermediary deals with, it would not be in a position to verify the genuineness or products being  sold over its online  market and  in any event, an intermediary ought  not  to be adjudicating  disputes between two private parties.

 

                     Further the Hon’ble Delhi State C.D.R.Commission, in the matter of Vinay Narain Vrs. L.G. Electronics India Pvt. Ltd.,  andors., in  case  No.270/2010 decided on  21.05.2015   had held that “the O.P. No.2 is neither  a necessary nor a proper party as it has nothing to do with the quality of the product. It is only a shopping site and the manufacturer is responsible  for the product.”

                       Again the Hon’ble High Court of Kerala in case titled as Flipkart Internet Pvt. Vrs. State of Kerla  on 7^th. January, 2013 has dealt with the issue    of online marketplace and  has stated that the functioning  performed  by  the marketplace model are covered under definition of ‘service provider’ and do not amount to  transaction of sale.

 

                          Further   the Hon’ble Supreme Court in  Civil appeal No. 5168 of 2000 (Sanchayani Savings Investment (I) Ltd. & Ors. Vrs. State  of Bengal   & ors. has  held   thatr “an intermediary within the definition of Section 2(w) of the IT Act, 2000 and also that under Section -79 of the  Act, the intermediary  is exempted from any liability arising out of material that is put up on website. He, therefore, point out that these kind of application will prevent the intermediaries from doing  their business lawfully”.

 

                           Further as per clause 2.3(vii) of the press note 3(2016 series) issued by the Department of Industrial policy & promotion, Ministry of commerce and industries, Govt. of India dtd. 29.3.2016, in a market place model like that of the  O.P. any warranty/guarantee of goods and services sold will be the responsibility of the seller and not that of the   online platform provider like the O.P.  No.2.

 

                         The O.P. No.2 only provides services of an online marketplace where buyers and sellers may interact and complete purchases.  Accordingly, the products  available for  sale in the answering O.Ps marketplace are supplied by the seller and purchased by the consumer.  At no stage in the transaction does the  O.P. No.2 have any affiliation or link with the product(s) and does not  hold out to the purchasing public that the products  are that of the answering  O.Ps manufacture or origin. Thus the complainant’s allegations are completely misplaced and unfounded and do not constitute a valid cause of action.

                          The O.P. No.2 in written version in clearly mentioned that the O.P. No.2  neither  has the knowledge nor the facility to ascertain if the alleged defects in  the product   are due to  manufacturing  flaws or customer and it is only the  manufacturer and the service centre of the manufacturer who can  resolve any such alleged defects with the product. The warranty  is provided by the manufacturer, subject to the warranty terms and condition and the O.P. No.2   has no  role  to play in the warranty terms and conditions and the same is clearly enumerated  under clause -13 of conditions of use- disclaimer.

                         Basing  on the above citation and discussion the  O.P. No.2  has not liable to replace or refund the above mobile amount  but the O.P. No.  1  is held responsible   in this case  and the O.P. No. 1 is liable to pay.

 

Now we have to see whether there was any negligence of the O.P No.1   in providing  after sale service  to the complainant as alleged ?

We perused the documents filed by the complainant.  Since the mobile set found defective after its purchase    and   the complainant  informed the O .P. No.3 (service centre) regarding the defect but the  O.P No.3   failed to remove  the defect . At this stage we hold that  if the mobile set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective mobile set  is sold to the complainant , the complainant is entitled to get refund of the price of the article or to replace a new  one or  remove the defects  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss.  In the instant case  as it is appears that the mobile set  which was purchased by the complainant had developed  defects and the O.Ps were unable to restore its normal functioning during the warranty period. It appears that the complainant invested  a substantial amount and purchased the mobile set  with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the mobile set  for such  and the defects were not removed by the O.Ps who  know the defects from time to time from the complainant.

             On appreciation of the evidences adduced before it, the forum is inclined to allow the complaint against the O.P No.1.

To meet the ends of justice the following order is passed.

                                                            O R D E R

            In  resultant the complaint petition  is allowed in part  against the O.P. No.1  on exparte and  dismissed against the O.P. No.2  on contest..

            The O.P. No.1  is directed to return back the defective product from the complainant  by replacing  new one set with fresh warranty.   There is no  order as to cost and compensation.

            The  O.P No.3  is directed to refer the order to the O.P.No.1 for early  compliance.

             The entire directions shall be carried out with in 45 days from the  date of receipt   of this order. Serve the order  to the  parties free of cost.

Dictated and corrected by me.     Pronounced in the open forum on    4^th.day of  June, 2018.

 

MEMBER                                   MEMBER                                                                   PRESIDENT