This complaint petition u/S 12 of the Consumer Protection Act’ 1986 is at the instance of the Complainant on the allegation of deficiency of services on the part of the Opposite parties in a consumer dispute.
The facts of the complaint case in a capsulated form is that the petitioner placed order on 07.12.2015 to purchase a Motorala make mobile phone with Model No.: Moto G (2nd Gen) LTE bearing IMEI / Serial no. 352360071589842 / 352360071589834 as per invoice no. CHN PUZHAL 0120151200047564 (Annexure - A) through online shopping portal of E-Commerce Company Flipkart for an amount of Rs. 9,029/- which was shipped to the complainant on 11.12.2015. The Mobile Phone was covered under 12 months warranty from the date purchase i.e. 07.12.2015 to 06.12.2016 as per warranty card (Annexure - B) on 20.10.2016 the display of the mobile handset went off which did not get restored in spite of charging. Upon searching internet, the complainant could find the authorized service centre (OP 4) of the mobile company on 21.10.2016 when the handset was deposited. In the job sheet no. SRSTE 0001610210054 (Annexure - C), the OP 4 remarked as ‘external, physical abuse’ and ‘out of warranty’ and informed the complainant that the repair work would be chargeable for Rs. 1,575/-, though the handset was under warranty of the original equipment manufacturer i.e. Motorola Mobility LLC who are the OP 1, 2 and 3. The complainant contended that the handset was suffering from manufacturing defect which was refused by the OPs for replacement. The complainant alleged that as per warranty book of the OEM, the equipment would either be repaired or replaced with new or reconditioned parts or to be replaced by a new or a reconditioned product or the purchase price would be refunded. As the complainant did not get response from OP 4, hence he visited their office on 07.01.2017 and got it back on 17.01.2017, when he got the response that the mobile handset got misplaced at the service centre (OP 4). The complainant stated that the OP 4 returned the mobile handset stating that due to expiry of warranty period, the handset could not be serviced free. The complainant also pointed out that some scratches and dent marks took place on the upper right side of the handset and about damaged USB Connector during the handset in custody of the service centre, which had not been present during depositing the handset at service centre. The complainant contended that the handset was received by OP within warranty period, but the OP returned the same after expiry of the warranty period without repairing the same leading to unfair trade practices by claiming service charges as extra. The complainant lodged complaint with OEM and received docket no. 170118-017718 and thereafter received call on 23.01.2017 from the call centre of OEM (OP 1 - 3) simultaneously taking the service centre (OP 4) on conference call when the OP 4 agreed to repair the handset treating the same within warranty period. However, in spite of repeated calling by complainant thereafter at helpline number of OEM and service centre on 13.02.2017, 15.02.2017, 22.02.2017 and 25.02.2017 there was no response. On 17.03.2017 the complainant received again call from service centre asking to deposit the handset once again along with the job sheet being no. SRSTE 0001703020040 which was created during the handset delivered on 21.01.2016 (Annexure - D). However, till date the said handset is lying with the service centre (OP 4) without any progress about repair work. The complainant lodged a complaint with Consumer Affairs and Fair Business Practices dept. Kolkata – 700091 and mediation was conducted on 17.05.2018 (Annexure - E), when the OPs could not provide any cogent reply and hence this complaint petition. Photocopy of the mediation proceeding dated 17.05.2018 is attached (Annexure – F). The complainant filed this complaint petition for deficiency in service and unfair trade practices by the OPs and prays for complete replacement of the mobile handset along with compensation of Rs. 50,000/- from OEM and Rs. 50,000/- from the Service centre for causing mental harassment, agony etc. along with a litigation cost of Rs. 50,000/-. The complainant states that the cause of action arose on 20.10.2016 when the mobile handset got defunct and was deposited at service centre and again was deposited on 17.01.2017 when the handset was returned to him and there was a promise from the OPs allegedly on 17.03.2017 about replacement of the handset.
This complaint petition was admitted on 13.01.2020 and running ex-parte against OP 1 and OP 4 as W/V were not filed. Paper publication was released for seeking appearance of OP 2 and OP 3, but as they did not comply, hence the case is running ex-parte against OP 2 and OP 3 as well. OP 5 and OP 6 have already filed W/V, who are contesting the case. The case was heard on 28.11.2022 in full as per argument advanced by the complainant and OP 5 and OP 6.
The complainant in their BNA contended that the Motorola Mobile Phone was purchased by complainant by placing order dated 07.12.2015 and the Invoice was raised on 11.12.2015. The handset got defunct on 20.10.2016 which was deposited with service centre on 21.10.2016 i.e. within 12 months from the date original purchase as per warranty condition. The OP no. 5 i.e. the e-Commerce Company Flipkart contended in their W/V that being only pro-forma OP, all allegations are denied and no prayer of complainant exists against them. The OP 5 also submitted that they are mere online market place platform/technology provider and not connected with the disputes by and between the respective buyer and seller. Being an intermediary who facilitated sell transaction between third party sellers and end customers, both of whom are independent and being termed as “intermediary” u/S 2(1)(w) of the IT Act, 2000, they are not directly connected to the instant dispute, neither they are service provider to the complainant regarding the particular commodity, having a limited role. The OP 6 i.e. M/s WS Retail Services Pvt. Ltd. also contended in the similar line in their written version that no specific allegation is resting against them who are mere resellers of the handset and not liable for any alleged manufacturing defect and hence the instant complaint is not maintainable against OP 6. The reseller as a goodwill gesture use to replace handset if any defect crops up within 10 days. But the instant handset was invoiced on 11.12.2015 and no defect was reported by that period. Moreover the OEM is the provider of the warranty as per Warranty Card and nor the reseller i.e. OP 6. No iota of complaint is resting against the OP 6 in the instant petition. Hence there is no liability on the part of OP 6, a reseller, whatsoever in the matter of instant complaint.
As the case had been running ex-parte against OP 1 to 4 hence the instant dispute was examined in light of evidences and available records and documents as annexed along with evidences of complainant and OP5 and OP6.
The main points for determination of this case are that whether the complaint is a consumer or not, whether there are deficiencies in services and unfair trade practices on the part of the OPs and whether the complainant is entitled to the reliefs as prayed for or not. The decisions with reasons on all the points are taken up together for the sake of brevity and avoidance of repetition of facts.
It is found that the OP Company through their authorised agents issued cash receipt in favour of complainant for delivering product with 12 month warranty. Hence the Complainant is a Consumer under the scopes and meaning of the Consumer Protection Act falling under the pecuniary and geographical jurisdiction of this forum. Upon scrutiny of evidences and exhibits, it appears that the petitioner placed order on 07.12.2015 and invoice was issued on 11.12.2015 for sale of 1 no. mobile handset of make : Motorala bearing IMEI / Serial no. 352360071589842 / 352360071589834 as per invoice no. CHN PUZHAL 0120151200047564 dated 11.12.2015 ordered through online shopping portal of e-Commerce company M/s Flipkart for an amount of Rs. 9,029/-. As per annexure B, the limited warranty cover by OEM is for 12 months from purchase date and if repaired in between, then extended to another 90 days from the date of such repair. Accordingly, this mobile phone was covered under 12 months warranty from 11.12.2015 to 10.12.2016. As per job sheet no. SRSTE 0001610210054 dated 21.10.2016, the customer complained about “charging/battery issue’, when the service centre recorded their observation as ‘external physical abuse’. It is also recorded therein that the handset was ‘out of warranty’ which is not getting established though signed by both the service centre and the complainant cum customer. In another exhibit no E the complainant in a letter addressed to the service centre complainant recorded that the handset was received back by him on 17.01.2017 which is taken on record in absence of any contra document and being unchallenged by OPs. As per warranty book of the OEM, the equipment would either be repaired or replaced with new or reconditioned parts or to be replaced by a new or a reconditioned product or the purchase price would be refunded. As per job sheet no SRSTE0001703020040 the handset was again deposited to service centre by complainant on 2.3.2017 with further defects. The job sheet also records that the mobile handset is dead but there is no conclusive proof that such damages took place caused by the complainant being the proceeding going ex-parte with OP 1,2,3 and 4 that includes OEM or their service centre. Hence, the OP1 to OP 4 have failed to discharge their duties to provide services even though the handset was within extended warranty as they left the job without repairing the same leading to unfair trade practices and by claiming service charges as extra. As the Invoice was raised on 11.12.2015, handset received by service centre on 21.10.2016 for repair, got returned to complainant on 17.01.2017 and again deposited by complainant on 02.03.2017 for malfunctioning, therefore the extended warranty period works out to be 90 days after initial repair dated 17.01.2017, which works out to be 16.04.2017. Since the complainant deposited the handset for recurring malfunction on 02.03.2017, therefore the OPs are liable to repair the handset free of cost being within extended warranty period as per limited warranty clauses vide annexure B as exhibited.
As such, the complaint petition succeeds. Hence, the instant case be and the same is allowed partly on contest with cost.
All the OP no 1, OP no 2, OP no 3 and OP no 4 are directed, jointly and severally, to replace the mobile handset with a new mobile handset of equivalent model OR will refund the purchase price of Rs 9,029/- to the complainant within 45 days from the date of this Order.
All the OP no 1, OP no 2, OP no 3 and OP no 4 are also directed, jointly and severally, to pay a compensation of Rs. 3,000/- (Rupees Three Thousand only) for the mental pain and agony that the complainant suffered and a litigation cost of Rs. 2,000/- (Rupees Two Thousand only) within 45 days from the date of passing the Final Order.
The complainant is at liberty to put this order into execution after expiry of 45 days from the date of Order, in case the same is not complied with by the respective OPs.
Let a copy be sent / supplied free of cost to both the parties. The Final Order shall be available in the website at Dictated and Corrected by
[HON'BLE MR. Partha Kumar Basu]
MEMBER
