Delhi

North East

CC/107/2016

Madan Jit Kr. - Complainant(s)

Versus

Motorola Mobility India Pvt. Ltd. - Opp.Party(s)

17 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.107/16

 

In the matter of:

 

	Madanjit Kumar R/o B-73/G-2, Dilshad Colony, Delhi-110095.	Complainant
	Versus
1.       2.             3.	Motorola Mobility India Pvt. Ltd Tower D,12th floor, DLF Cyber Green DLF Phase-III, Gurgaon-122001, Haryana.   Flipkart Internet Pvt Ltd 405A & 405B, 4th Floor, Rectangle 1, Gate No.3, Plot No.D-4, Saket District Center, Saket, New Delhi-110017. Corporation ward no. 68, Koramangala, Bangalore-560034, Karnataka, India.   B2X (Authorized Service Centre of Motorola Phones) Vanshika Electronics, WA-118, Shakarpur, Mother Dairy Road, Delhi-110092.	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

13.04.2016 17.11.2018 17.11.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant as narrated in the present complaint in brief is that the complainant had purchased a mobile phone bearing no. U96158/ Motorola (Moto G2-XT 1068) manufactured by OP1 through Web domain / On line portal, owned and managed by OP2 on 03.06.2015 for a sum of Rs. 10,999/- paid to OP2 vide Cash on Delivery (COD) on invoice no. BLR-W11D20150600060467. The said mobile came with a guarantee/ warrantee of one year from the date of purchase but started giving problems soon after its usage for which the complainant contacted the customer care of OPs which offered him short term solutions to the problem by repeatedly switching on/ off of the mobile and the subject mobile phone stopped working completely by 22.09.2015. The complainant took the subject mobile phone to OP3, the authorized service centre of OP1 for rectification of defect where he was informed by OP3 executives that the internal display of the phone was broken and was not covered under warrantee guarantee and was repairable on chargeable basis and the complainant paid a sum of Rs. 4367/- vide tax invoice dated 21.09.2015 to OP3 for the said repairs under protest questioning the brakeage of internal display since there was no physical damage to the mobile phone or scratches on the mobile phone.  After few days OP3 handed over the mobile phone to complainant and on checking the handset in front of OP3, the complainant found another defect in the mobile phone in form of unprecended stoppage of speakers to work and therefore, deposited the said mobile phone again with OP3 on 05.10.2015. However, after 10 days the complainant received an email from OP3 informing that the subject mobile was irreparable and OP3 never returned the said handset to the complainant till date. Thereafter, the complainant followed up with OP3 vide emails exchanged between them from 18.10.2015 to 21.11.2015 regarding rectification of defects in his mobile phone and seeking replacement there against alongwith refund of Rs. 4000/- paid by complainant to OP3 for repairs but no response came forth from OP1 or OP3. Complainant then issued a legal notice dated 25.12.2015 to the OPs through his counsel demanding refund of cost of mobile phone with interest alongwith refund for the amount paid for repair and other damages. The OP2, vide reply / response dated 20.02.2016 to the above mentioned Legal Notice called upon the complainant to withdraw his notice instead of addressing his grievance. Lastly, the complainant was constrained to file the present complaint alleging deficiency in service against the OPs for having sold a defective mobile phone and having failed to repair and return the same despite having charged for the same. Thereby indulging in unfair trade practice causing mental agony and harassment to the complainant for which the complainant has prayed for directions against the OPs to refund the amount of Rs. 10,999/- towards the cost of mobile phone alongwith interest thereon @24% from date of payment i.e. 03.06.2015 till realization, refund of Rs. 4,367/- alongwith interest @24% from date of payment till realization and Rs. 5,00,000/- as compensation for mental agony and harassment. Complainant has attached copy of retail tax invoice of purchase of mobile through OP1, copy of service note/ job sheet dated 21.09.2015 alongwith tax invoice of Rs. 4,367/- issued by OP3, service note / job sheet dated 05.10.2015 issued by OP3, copies of emails exchanged between complainant and OP1 between 18.10.2015 to 21.11.2015, copy of legal notice dated 25.12.2015 from complainant to OPs with courier receipt and PODs and copy of reply dated 20.02.2016 by OP2 to the legal notice of the complainant.
2. Notices were issued to OPs vide order dated 18.04.2016. None appeared on behalf of OP3 and OP1 and were therefore, proceeded against ex parte vide order dated 29.09.2016 & 03.11.2016 respectively. OP2 filed its written statement on 26.07.2016 in which OP2 took the preliminary objection that it provides online market place / platform / technology and / or other mechanism / services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods and it falls within the deficiencies of ‘intermediary’ u/s 2(1)(w) of the Information Technology Act, 2000 (IT Act) and is protected under section 79 of  IT Act. OP2 submitted that the complainant  was not its consumer and there was no privity of contract between complainant and OP2 has been wrongly arrayed in present complaint since its role was only to provide online platform to facilitate the entire transactions of sell and purchase of goods by respective sellers and buyers on its website registered with it and itself was not engaged in selling of any goods on / of its own similar to a shopping mall which rents out various shops to different sellers who in turn are liable for the consequences towards their respective customers. OP2 further took the defence that all the transactions done over its website are governed by Terms of Use as mentioned on its website (as detailed in para 10 of preliminary submission of written statement of OP2 and not being reproduced here). OP2 objected to the complainant having failed to implead the seller as necessary party and that since the complainant had time and again contacted OP1 & OP3 for redressal of the alleged defect in the mobile phone, he cannot press the present complaint against OP2 for not providing after sales service since the complainant had himself admitted to having visited OP3 with respect to the defects in the mobile phone knowing fully well that his grievance could be redressed by OP1 or OP3 for non rectification of which, he had sent several emails to OP1 but never contacted OP2 for any redressal of the problem. OP2, while admitting the factum of purchase of the subject mobile phone in question by complainant, denied having provided any guarantee / warrantee which was provided by OP1 and to be honoured by OP3 since OP2 was an online platform to facilitate the sale transaction and denied the complainant ever having contacted its customer care for rectification of the defects in the mobile. The OP2 denied the contents of legal notice dated 25.12.2015 issued by complainant and reiterated the reply given thereto dated 20.02.2016 by OP2 in which it categorically stated that OP2 was only intermediary and not the manufacturer and therefore had no liability towards the complainant. Lastly, the OP2 urged that the present complaint has been filed to extort money in an illegal manner  aimed at achieving undue benefits against OP2 and therefore, prayed for dismissal of present complaint at the threshold against OP2.
3. Rejoinder to the written statement of OP2 was filed by complainant in rebuttal to the defence taken in which the complainant submitted that all three OPs have jointly fooled the complainant and therefore, liable to compensate him. The complainant further submitted that the OP2 sells goods on line, ships them and collects payment through cash on delivery from the customer and therefore, an actual seller of the product in question to the person who is paying the cash to it as a buyer (complainant herein) and therefore, is not an ‘intermediary’ to take protection under section 79 of IT Act.  The complainant further submitted that OP2 had actually sold mobile phone in question and shipped the same to complainant and collected the invoice value from him and therefore, OP1 was the manufacturer, OP3 service centre and OP2 the seller as per the basic rules of buying and selling. The complainant further negated the defence taken by OP2 of no privity the contract on ground that the complainant had ordered the subject mobile through the web site of OP2 and OP2 had taken generated invoice their against and therefore, there was contract between them which is why OP2 had shipped the said product to the complainant as actual seller of the product and cannot wash its hands off after providing a defective item to the complainant for which it is liable to pay damages.
4. Evidence by way of affidavit was filed by the complainant as well as OP2 in reiteration of their respective grievance / defence.
5. Written arguments were filed by the complainant in which the complainant argued that the OPs cannot deny the basic fundamental right of natural justice provided under Consumer Protection Act by taking shelter under IT Act and cannot escape its liability for supplying a defective item to the complainant by all three OPs. The complainant further argued that the OP2 was selling the subject mobile online by issuing a bill, shipping the same and collecting cash of delivery and therefore was a seller to the complainant and liable to compensate him for selling him a defective item and not honouring the guarantee/ warranty terms and cannot be allowed to claim itself  as an ‘intermediary’ since the subject mobile was advertised by it on its website for which it had not only generated the invoice but also delivered the same through its agent / employee at the residence of the complainant after collecting its sale consideration and therefore prayed for relief sought against all the OPs.

In the written arguments filed by OP2, OP2 reiterated its disclaimer as being a mere online seller having no privity of contract with the complainant and the contract of sale having entered into between the complainant and the seller of the mobile in question which was not made a party herein by the complainant. OP2 further argued that it was the sole duty of OP1 and OP3 to remove the defects, if any in the subject mobile to the satisfaction of the complainant and not that of the OP2 which was not answerable for any guarantee / warrantee against the said mobile.

6. We have heard the rival contentions of both complainant as well as OP2 and have given our thoughtful consideration to the documentary evidence placed on record by both the sides.

OP1 and OP3 failed to appear or rebut the allegations levelled against them by the complainant of selling a defective mobile which stopped working within 3 months of its purchase and was never returned by OP3 after having being submitted on 05.10.2015 by the complainant for repairs against payment of Rs. 4,367/- made by the complainant to OP3 for the same which in our view is a classic example of deficiency of service against OP1 and OP3.

We are therefore of the considered opinion that the allegation of the complainant against OP1 and OP3 regarding selling a defective mobile phone and failing to return it repaired have since goneun-rebutted by OP1 and OP3, the same is proven from the documentary evidence placed on record by the complainant. We therefore hold OP1 and OP3 guilty of deficiency of service.

As for OP2, notwithstanding the defence taken by it as a mere online facilitator between the buyer and vendor and not a party to any dispute arising between them for any deficiency of service, OP2 acts as a medium of communication between the buyer and seller and since this is a business interest, it cannot be said or construed as a gratuitous service to its consumers since OP2 brings into existence contracts of sale and purchase of moveable goods and therefore it cannot be permitted to claim that such services are without are consideration since OP2 is clearly not a charitable organization involved in e-commerce with no business returns for itself.

7. We therefore, holding OP2 as agent who sold the Moto G2 mobile in question, duty bound to ensure its quality and if the product was found defective which it was, agent i.e. OP2 shall be vicariously liable for the loss caused to the purchaser i.e. the complainant herein, alongwith the liability of the manufacturer of the product i.e. OP1. This view was held by the Hon’ble NCDRC in the case of Emerging India Real Assets Pvt Ltd Vs Kamer Chand and Anr. in RP no. 765/2016 decided on 30.03.2016. Screening the entire transaction, it appears that OP2 is a facilitator / mediator asking the seller to supply the required article to the complainant who booked to purchase the said mobile through website of OP2 and therefore cannot be absolved of the role played by OP2 to facilitate the transaction in capacity of a service provider under Section 2(o) of CPA and therefore is a necessary party to the present complaint.
8. We therefore direct OP1 and OP3 jointly and severally to refund  Rs. 10,999/- as cost of the mobile in question and Rs. 4,367/- towards cost of repairs paid by complainant to OP3 to the complainant alongwith interest on the cumulative amount of Rs. 15,366/-@9% p.a. from the date of institution of complaint till realization. We further direct all the OPs i.e. OP1, OP2 and OP3 jointly and severally to pay a sum of Rs. 5,000/- to the complainant as compensation for mental agony and harassment since it was on the website advertisement /exhibition of OP2 with respect to the subject mobile that the complainant was induced to order / purchase the same from OP1 which later turned out to be defective and never got repaired by OP3.  Let the order be complied with by the OPs within 30 days from the date of receipt of copy of this order.       
9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.  File be consigned to record room.
11.  Announced on 17.11.2018 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member