Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 235.
Instituted on : 01.06.2018.
Decided on : 01.01.2019.
Deepak Dua son of Sh. Harish Chander Dua, Resident of 258/24, Ram Nagar, Rohtak.
.......................Complainant.
Vs.
- Flipkart, 447/8, Ist A Cross, 12th Main, 4th Block, Opposite BSNL Telephone Exchange, Koramangla, Banglore, through its Managing Director.
- M/s Swastik Systems, Authorized Service Centre Motorola Mobile, SCF No , Near Heritage Hotel, Near Dena Bank, HUDA Complex Rohtak, through its Authorized person/Proprietor.
- Motorola Mobility, India Private Limited, 12th Floor, Tower D/DLF Cyber Green, DLF Cyber City, Gurugram-122002.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
SMT.SAROJ BALA BOHRA, MEMBER
Present: Sh. Ankur Dua, Advocate for the complainant.
Sh. Kunal Juneja, Advocate for OP No. 1.
OPs No. 2 and 3 already exparte vide order dated 27.07.2018.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant has purchased a mobile set Motorola Moto M of Motorola Company having IMEI No. 358218070282047 vide invoice dated 15.12.2016 for Rs.15,999/- from the respondent No.1 who is authorized dealer of Motorola company. That respondent no.3 is the manufacturer and respondent no.2 is the authorized service center of Motorola mobile. That since the date of its purchase, the mobile phone is creating a lot of trouble as there were problems of charging, hanging and heating problem, on which the complainant went to OP No. 2 and asked to rectify the defect in phone, who said that this set used to have the same problems and with the passage of time the problem will be automatically cured/rectified. It is further alleged that on 18.04.2017, the same problem again created to alleged mobile phone and complainant deposited the said phone with the OP No. 2 but the fault of the mobile phone remain unchanged. That complainant time and again visited the opposite parties for rectifying the above said problems but the official of OP No. 2 conveyed to the complainant that the said mobile phone is having latent manufacturing defect/problem and hence same cannot be repaired or rectified and assured to replace the said mobile phone. On 11.07.2017, OP No. 2 refused to deliver the new mobile phone or to give back the cost of mobile set. That the act of opposite parties of selling a defective mobile is illegal and there is deficiency in service on the part of OPs. Hence, this complaint and it is prayed that opposite parties may kindly be directed to pay an amount of Rs.15,999/- towards cost of mobile alongwith interest at the rate of 18% per annum and also to pay Rs. 50,000/- as compensation and litigation expenses to the complainant as explained in relief clause..
2. After registration of complaint, notice was issued to the opposite parties. Opposite party No. 1 in its reply has submitted that the contention raised by the complainant that the answering OP is the dealer of the “Mobile Phone of the Motorola Company” is vehemently denied. It is further denied that any kind of assurance was given to the complainant at any point of time. It is pertinent to mention that the services of OP are similar to a shopping mall where various shops are rented out to different sellers who independently carry out sale proceedings with the customer/visitors of the shopping mall and in case of any defect in the goods sold by such shop owners/sellers in the shopping mall, it is the shop owner/seller, who is held liable for the consequences and not the owner of the shopping mall where such shops are situated. In the same way, the OP is not involved in the entire transaction except for providing the online platform for the transaction and the concerned contract of sale and purchase is between the seller and the buyer only and hence OP shall not be held liable for any liability owing to such contract. It is further submitted that grievance of the complainant is all against the OPs No. 2 and 3 i.e. authorized service centre and manufacturer and lastly prayed for dismissal of the complaint qua OP No. 1.
3. Notice sent to OP No.2 received back served and notice sent to OP No.3 through registered post not received back in any form. As such OPs No. 2 and 3 were proceeded against exparte vide order dated 27.07.2018 of this Forum.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C3 and has closed his evidence on dated 19.11.2018. Ld. counsel for the OP No. 1 made a statement on dated 06.12.2018 that reply already filed on its behalf be read in evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. Perusal of the record reveals that the complainant had purchased the mobile on 15.12.2016 vide invoice Ex.C2. As per job sheet Ex.C3 dated 17.06.2017 there were issues regarding charging due to jac problem in the alleged mobile for the last 15 days. Complainant sent so many emails to the opposite party as shown in Ex.C3(page no.1 to 11) but neither the mobile was repaired nor replaced within warranty period. On the other hand, opposite party No.1 has only filed reply submitting therein that opposite party No.1 is only a platform for the transaction took place between the complainant(buyer) and seller and it has no role in providing warranty of the product. On the other hand, OP No.2 & 3 have not appeared before this Forum for the rebuttal against the pleadings of the complainant placed on the file and remained exparte in the present case. As such all the allegations leveled against the opposite parties regarding defective mobile set stands proved. As the complainant has lost faith in the company and its product, so it is better to refund the price of mobile phone after deduction of 40% depreciation on it as the complainant has used the mobile set uninterruptedly for 6 months.
7. Accordingly the complaint is allowed and it is directed that opposite party No.3 i.e. manufacturer shall refund the price of mobile set after deduction of 40% discount from the total cost i.e. to pay Rs.9599/-(Rupees nine thousand five hundred ninety nine only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 01.06.2018 till its realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision. However, complainant is also directed to hand over the mobile in question to the OPs at the time of payment by the OP No.3, if the same is in his possession.
8. Copy of this order be supplied to both the parties free of costs.
9. File be consigned to the record room after due compliance.
Announced in open court:
01.01.2019.
.....................................................
Nagender Singh Kadian, President
..........................................
Ved Pal Hooda, Member.
……………………………….
Saroj Bala Bohra, Member
