….Opposite parties.
(Complaint U/S 35 of the Consumer Protection Act).
Present: For the Complainant: Sh. Charanjit, Advocate.
For the Opposite Party No.1: Sh. Avtar Singh Abrol, Advocate.
For the Opposite Party No.2: Sh. Sachin Mahajan, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Rajinder Kumar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act (here-in-after referred to as 'Act') against Motorola Mobility India Pvt. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that complainant had online purchased/order one Motorola One Action Denim Blue, 128 GB with IMEIs 357227101611935/13 and 357227101611943/13 with serial No. ZF6224TPC4 from OP No. 2 vide order dated 21.01.2020. It is pleaded that complainant exchanged his old Redmi 5 IMEI 869783037029544 with new one Motorola One Action Denim Blue, 128 GB for a sale consideration amount of Rs.8,999/- vide invoice dated 22.01.2020. It is further pleaded that the OP No. 2 also gave Complete Mobile Protection Insurance for one year of Rs.549/-. The Complete Mobile Protection Insurance was activated on 26.01.2020 and valid upto 25.01.2021. Thus the above said new mobile is under insurance / protected by the OP No. 2. It is further pleaded that the OP No. 1 is the manufacturer/imported of the said mobile and the OP No. 2 is the authorized agent / seller of the OP No. 1. It is further pleaded that on 21.01.2020, the complainant gone on the site of OP No. 2 for buying the Motorola One Action Denim Blue, 128 GB mobile phone. The OP No. 1 also gave an offer for exchanged an old mobile with the new one. Complainant trusted upon the assurances of the OP No. 2 and exchanged / purchased above said new one Motorola One Action Denim Blue, 128 GB mobile phone. It is alleged that it was almost surprised to complainant on the delivery of above said new mobile that the said mobile has manufactured defect. It is further alleged that after few days from the delivery of the above said new mobile handset it became out of order and started hanging up and stopped working as it was having some manufacturing defect. The above said mobile handset had not been working properly for which the complainant approached the OP No. 2 and the OP No. 2 told the complainant to update the software of new mobile. The above said new mobile was already updated and the mobile set started hanging again. Moreover, the screen started blanking up along with hanging. It is further alleged that the defect of the mobile set was not repaired and mobile set did not work properly. Complainant again approached OP No. 2 and the OP No. 2 directed the complainant to approach to OP No. 1. Then complainant approached OP No. 1 through a telephonic call. The OP No. 1 openly and clearly told complainant that he cannot remove the defect of the mobile and it is beyond the capacity to repair the mobile. It is further alleged that after four months instead of repairing the mobile, another defect of blanking up of the screen of new one Motorola One Action Denim Blue 128 GB. The touch of new one Motorola One Action Denim Blue 128 GB is too hard and touch of mobile is not work properly. The back cover of mobile is also damaged. It is further alleged that the complainant made various request towards the OP No. 1 and OP No. 2 but they did not repair or replace the said mobile set till date. Hence the said mobile set has not been repaired or replaced till date by both the opposite parties. The mobile set started hanging again and again. Moreover, the screen started blanking up along with hanging. The defect of the mobile set was not repaired and touch of mobile is too hard and the touch of mobile did not work properly. It is further alleged that the complainant again made various calls to both the opposite parties for repair/exchanged the mobile set with new one but the opposite parties refused to attend calls. It is further alleged that the opposite parties intentionally and willfully sold the faulty and defective mobile set to the complainant. Due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties for change with the new one said mobile handset of complainant or to repay / refund the amount of Rs.8,999/- alongwith @ 18 % per annum and the opposite parties may kindly be directed to award compensation to the tune of Rs.10,000/- for mental agony, physical harassment and financial loss caused by the opposite parties to the complainant due to deficient service and unfair trade practice on the part of the opposite parties and litigation expenses to the true of Rs.10,000/- may also be awarded to the complainant, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that all the averments and allegations made and contentions raised by the complainant in the complaint are denied, as being false and baseless unless specifically admitted and accepted hereto. The contentions raised and the averments and allegations made in the complaint that are not specifically denied, admitted or replied to shall be deemed to have been denied. It is pleaded that at the outset, the answering opposite party i.e. opposite party No.1 submits that the complainant has approached this Hon'ble Commission alleging that there is an unfair trade practice and deficiency in services from part of answering opposite party. It is further pleaded that it is humbly submitted before this Hon'ble Commission that there is no deficiency in services on part of the Answering Opposite Party. The Answering Opposite Party submits that it always endeavors to provide excellent after sales service and the Authorized Service Centers are established by this Answering Opposite Party with the intent of providing such service. It is pertinent to mention that the Answering opposite party aims at customer satisfaction as its utmost priority. It is further pleaded that the Answering Opposite Party submits that the conversation is transpired between the Complainant and OP No.2 and cannot be commented on it and further submitted that complainant never logged any complaint with the Answering Opposite Party's authorized service center to get the issue resolved. Hence the allegation on Answering Opposite party pertaining to deficiency in service is false and denied. It is further pleaded that the complainant never visited the service center to get the issue resolved and kept on sending emails. This action clearly shows that the complainant has approached the service center with unclean hands. It is further pleaded that the Answering Opposite Party cites the Section "What your Service Provider Will Do to Correct Problems" of Part 1- General Terms of the Lenovo Limited Warranty which states thus;
What your Service Provider Will Do to Correct Problems
"If the Service Provider determines that it is unable to repair your product, the Service Provider will replace it with one that is atleast functionally equivalent.
If the Service Provider determines that it is unable to either repair or replace your product, your sole remedy under this Limited Warranty is to return the product to your place of purchase or to Lenovo for a refund of your purchase price."
It is further pleaded that it is amply clear from the above cited Warranty Clause that the replacement of the product shall be granted only if the product cannot be repaired. If the product is neither repairable nor replaceable, only then the question of refund of cost of the product arises. In the instant case, the complainant never approached the authorized service center. It is further pleaded that as for the compensation claimed by the complainant, the Answering Opposite Party states that the complainant has failed to place on record and prove the basis for claiming compensation and has merely instituted this complaint only with the intention of harassing the Answering Opposite Party and to derive undue and unfair advantage.
On merits, the opposite party No.1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that at the very outset, it is submitted that the entire complaint is nothing but specific and centric to the manufacturer and its authorized service center in the present complaint and the same is evident from bare reading of entire complaint. Thus, the Complainant has wrongfully impleaded the Opposite Party No.2 under present complaint and hence, the Present complaint deserves to be dismissed against the Opposite Party No.2 at the first instance. The seller in the present complaint is "Konde Product & Services Private Limited" and the alleged mobile protection insurance purchased from the third party service provider i.e. Jeeves Consumer Services Pvt. Ltd. whom the Complainant has not impleaded as an Opposite Party. The Complainant shall be directed to implead the seller of the product as an Opposite Party in the present Complaint for proper and justified adjudication of her grievance. It is pleaded that the Complainant has suppressed true and material facts from this Hon'ble Commission and trying to mislead this Commission. Hence, the present complaint is not maintainable and liable to be dismissed against this Opposite Party No.2. It is further pleaded that the fact needs to be recorded here that the complainant might have mistakenly considered the answering Opposite Party No.2 as the seller of the product and this is complete negligence on the part of the complainant. The answering Opposite Party No.2 is not the seller of any product (including the product under present complaint) but mere an online intermediary providing a common platform to the buyer & independent third party seller. It is further pleaded that the Opposite Party No.2, Flipkart Internet Private Limited is engaged, among others, in providing trading/selling facility over the internet through its website www.flipkart.com and mobile application (Mob App) (hereinafter collectively referred to as the "Flipkart Platform"). The Opposite Party No.2 is an online marketplace e-commerce entity as defined under Consumer Protection Act, 2019 and Consumer Protection (E-commerce) Rules, 2020. It is further pleaded that the business of the Opposite Party No.2 falls within the definition of an "intermediary' under Section 2(1) (w) of the Information Technology Act, 2000, which is reproduced hereunder:
"intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online- market places and cyber cafes;"
It is further pleaded that the Opposite Party No.2 only acts as an intermediary through its web interface 'www.flipkart.com' and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the users of the Flipkart Platform. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. The answering Opposite Party No.2 does not directly or indirectly sells any products on Flipkart Platform. Rather, all the products on Flipkart Platform are sold by third party sellers, who avail of the online marketplace services provided by the answering Opposite Party No.2, on terms decided by the respective sellers only. It is further pleaded that no relief sought against the answering Opposite Party No.2 can be granted in the given facts and circumstances. The product purchased by the Complainant has not been sold by the answering Opposite Party No.2 and answering Opposite Party No.2 has no role in providing warranty of the product sold by an independent seller through the Flipkart Platform of the answering Opposite Party No.2. It is further pleaded that the user(s) of the Flipkart Platform are bound by the Terms of Use enumerated on the Flipkart Platform which clearly state that the contract of sale is a bipartite contract between the buyer and the seller only and the Opposite Party No.2 is not a party to it. On the Flipkart Platform i.e. http://www.flipkart.com/s/terms, it is clearly mentioned that "All contractual/commercial terms are offered by and agreed to between the buyer and the seller alone. The contractual/commercial terms include without limitation price, shipping cost, payment method, payment terms, date, period and mode of delivery, warranties related to products and services and after sale services related to products and services. Flipkart does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such contractual/commercial terms between the buyer and the seller. These Terms of use clearly shows that the Opposite Party No.2 has not been involved in any unfair trade practices. It is further pleaded that the whole grievance of the Complainant pertains the product i.e. Motorola One Action (Denim Blue, 128 GB) (herein after referred as the said product) manufactured by the Opposite Party No.1 and sold by the third party seller from the website of the Opposite Party No.2. It is relevant to note that the Opposite Party No.2 is electronic marketplace model E-commerce platform which acts as an intermediary to facilitate sale transactions between independent third- party sellers and independent end customers. It is further pleaded that therefore, the Opposite Party No.2 has no role or liability towards the Complainant' grievance. The fact needs to be recorded here that the Complainant is making all false stories. The complainant is cooking all crooked stories based on whims and fancies. It is pertinent to note here that the product was purchased from the third party seller (i.e. Konde Product & Services Private Limited in the instant matter) who had sold the product to the Complainant and supplied it to the complainant through third party Logistic service provider and the warranty against accidental damage was purchased from Jeeves Consumer Service Pvt. Ltd. It is further pleaded that the Complainant was provided all possible assistance by giving due intimation of information received from the seller. Hence, in view of the above mentioned submissions, there is no cause of action against the Opposite Party No.2. Any grievance which the complainant has is only against the manufacturer or its authorized service center of the product as it is the responsibility of manufacturer and its service center to provide after sales services in case of any manufacturing defect.
On merits, the opposite party No.2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. The Complainant has filed Self – Declaration of Sh. Rajinder Kumar, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-9.
6. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Mr. Paneer Gunasheelan, (Authorized Representative of opposite party No. 1) as Ex.OPW-1/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/3.
7. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Ms. Sheetal Tiwari, (Authorized Signatory of opposite party No. 2) as Ex.OP-2/1 alongwith other documents as Ex.OP-2/2 to Ex.OP-2/3.
8. Rejoinder not filed by the complainant.
9. Written arguments filed by the complainant and also filed by the opposite party No.1, but not filed by the opposite party No.2.
10. Counsel for the complainant has argued that complainant had purchased one mobile hand set for Rs.8,999/- vide tax invoice Ex.C3 under exchange scheme launched by opposite parties and since the said mobile hand set was having inherent defects in it and complainant made request to the opposite parties to replace the mobile set but opposite parties failed to repair or replace the mobile phone which amounts to deficiency in service on the part of the opposite parties.
11. Counsel for the opposite party No.1 has argued that complainant never approached the service centre of opposite party No.1 and only indulged in sending E-mails to opposite party No.1 and as such there is no deficiency in service on the part of the opposite party No.1 and complaint is liable to be dismissed.
12. Counsel for the opposite party No.2 has argued that opposite party No.2 is only having online platform which provides facility to the sellers and buyers of the product for sale and purchase and in the present case since the mobile phone had some problem the same is required to be rectified by opposite party No.1.
13. We have heard the Ld. counsels for the parties and gone through the record.
14. It is admitted fact that complainant had purchased mobile hand set from opposite party No.1 through website of opposite party No.2 vide tax invoice Ex.C3. Complainant has placed on record correspondence Ex.C9 which clearly proves that complainant had lodged complaint with the opposite party No.1 regarding defect in the mobile and since the defect in the mobile has not been rectified by the opposite party No.1 being within warranty and as such complainant is within his right to have replacement of mobile hand set and act of opposite party No.1 of having failed to repair or replace the mobile hand set amounts to deficiency in service.
15. Accordingly, present complaint is partly allowed and opposite party No.1 is directed to refund the amount of Rs.8,999/- to the complainant without interest after receiving the old hand set. However it made clear that if amount is not refunded within 30 days of the receipt of copy of this order the amount of Rs.8,999/- shall carry interest @ 9% P.A. from the date of filing of the complaint till realization.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
17. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Nov. 08, 2023 Member.
*YP*
