Delhi

East Delhi

CC/627/2016

PRERANA JHUNJHUNWALA - Complainant(s)

Versus

MOTOROLA - Opp.Party(s)

03 Apr 2019

ORDER

                         CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

                  CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                  

                                                                                                  Consumer Complaint no.        627 / 2016

                                                                                                  Date of Institution                  02/12/2016

                                                                                                  Order Reserved on                 03/04/2019

                                                                                                  Date of Order                          05/04/2019  In matter of

Mrs. Prerana Jhunjhunwala          

w/o Sh Manoj Baser   

R/o  2B/11  Upper Ground Floor   

Ramesh Nagar, New Delhi 110015 ……....……………..…………….Complainant

                                                                   

                                                                     Vs

1-M/s Motorola Mobility India Pvt Ltd.   

R 51 First Floor, Opp Metro Pillar 44     

Laxmi Nagar, Delhi 11009

 

2- M/s Flipkart Internet Pvt Ltd.   

Vaishnavi Summit, 7^th Main 80 Feet Road 

3^rd Floor, Koramangala Industrial Layout 

Bangaluru 560034 Karnatka ………………………………….……………Opponents

 

Complainant’ Advocate                     Mr Gobind Malhotra   

Opponent 2 Advocate                       M Sachin Sharma & Satyavrat Sharma

Opponent 1                                         Ex Parte  

                                             

Quorum          Sh Sukhdev Singh      President

                         Dr P N Tiwari              Member

                         Mrs Harpreet Kaur    Member

 

Order by Dr P N Tiwari  Member 

Brief Facts of the case  -

Complainant wanted to gift handset to her younger sister, so purchased hand set online through Flipkart / OP1. The handset Motorola MOTO X Play handset model no. AP 3534AE7K8 against order no. ID OD2045297046970469386000 was received on 27/1/2015 after paying Rs 18,499/-(Ex CW1/1). Handset had one year standard warranty. After using about 8 months the said handset developed some technical fault so was shown to authorised service centre as Amblex Services R1, First Floor, Main Vikas Marg, opp. Pillar no. 44 on 01/08/2016 who told that SIM Tray got defected which could not be repaired, but only replacement be done.

Complainant alleged that OP1 manufactured faulty product and OP2 sold defective product so the part to be replaced free of cost. When no part was replaced, asked 70% refund of the cost of the product/hand set. When no refund amount was offered, complainant sent various emails as she was a consumer to OPs (Ex CW1/2 to 6). She also sent legal notice for early refund of the cost of the mobile (Ex CW1/7). It was stated that OP2 sent an interim reply of legal notice and stated that no EMEI no. of mobile was mentioned so asked to send it (Ex CW1/7A). Reply containing EMEI and serial no. was sent on 16/11/2016 (Ex CW1/8). Complainant filed this complaint on 02/12/2016 claiming refund of the cost of the mobile Rs 18499/- or replace with new handset with compensation Rs 50,000/- and litigation Rs 22,000/-.

OP 2 submitted written statement and admitted that complainant placed her order for handset through online/ Flipkart which worked well over eight months. It was stated that OP2/Flipkart being an electronic platform acts as an intermediary to facilitate sale transactions between independent third party sellers and independent customers. The third party sellers use the Flipkart Platform to list, advertise and offer to sell their products to the users and offer to sell their products to the users / buyer who visit the Flipkart Platform.  The Op2/answering opposite party/OP2 falls within the definition of an ‘intermediary’ under Section 2(1)(w) of IT Act 2000 and was protected under Section 79 of IT Act,2000. So customers put their demand on www.flipkart.com only so OP2 does not sell any products on Flipkart Platform.

It was stated that product here MOTOROLA MOTO X Play was manufactured by Motorola company and product warranty and services were provided by the manufacturer and not by online platform and the product was sold and delivered by M/s WS Retail Services Pvt Ltd having their office at Chennai and Regd office at Bangaluru . So, OP2 was neither a seller nor a service provider, hence there was no privity of contract between complainant and online platform. Thus there was no deficiency on OP2. All contract / commercial terms were offered by and agreed between buyer and the seller alone. Flipkart does not have any way involved itself in the offering or acceptance of such contractual terms so there could not be any unfair trade practice. Hence OP2 be exempted from any liability. OP1 was proceeded Ex Parte as non appeared despite serving notices.     

Complainant did not file her rejoinder, but filed evidence through her own affidavit and relied on her exhibits as invoice (CW1/1), emails sent to OPs (CW1/2 to 6) and legal notice (CW1/7&8). So her complaint be honored and prayer be allowed.  

OP2 filed their evidence through affidavit of Mr Satyajeet Bhattacharya, AR and supported contentions of their written statement. OP2 relied on terms and conditions of online platform (OPW/1) and as there was no contract of privity. It was also stated that complainant had not made manufacturer as a necessary party and after sales service centre for any defects rather made online platform and seller as party. It was also stated that Hon. Supreme Court in “Sanchayani Saving Investment (I) Ltd & others vs State of West Bengal & others” had observed that e-commerce market role of Intermediary under Section 2(1)(w) of IT Act and protected under Section 79 IT Act. As alleged deficiency in services had been raised against the Manufacturer and Authorised Service Centre and both were not made necessary parties, so this complaint be dismissed.

Arguments were heard from the counsel of complainant and OP2. File perused and order reserved.

We have gone through all the facts and evidences on record. It was observed complainant did not make proper and necessary parties to resolve her defects. Without establishing manufacturing defect, complainant demanded refund of full cost or replacement with a new hand set without any concrete evidence. Also complainant could neither prove privity of contract between OP2/Online portal nor manufacturer or service provider. There was no evidence of OP1 in the complaint. That being so, this complaint has no merit and deserves to be dismissed so dismissed without cost.    

The first free copy of this order be sent to the parties as per the Section 18 (6) of the Consumer Protection Regulation, 2005 ( in short CPR)  and file be consigned to the Record Room under Section 20(1) of CPR.

 

(Dr) P N Tiwari Member                                                                      Mrs Harpreet Kaur  Member

                                                          Sukhdev Singh  President