SMT. MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by Complainant U/S 12 of Consumer Protect Act 1986, for an order directing the opposite parties to replace the mobile phone and to pay of Rs. 1,08,471 as compensation for the deficiency of service on their part.
The case of the complainant in brief
The complainant had purchased one refurbished Apple I Phone 6S(Gold 64 GB) model mobile through online from OP1 order No. 403-5020846 – 2651530 on 20th October 2018 for Rs. 32,499 and the complainant received the mobile phone on 25/10/2018 with an IMEI No.358563078511602 through courier. As per the warranty card there was warranty of 6 months from 25/10/2018. The warranty which will expire on 19 the April 2019. But after 2 months the complainant noticed that the mobile phone was not working properly and there was call dropping problem also. Then the complainant speaks to network service provider (Vodafone) and they said there is no issue with network service provider. Then the complainant changed the service provider SIM as BSNL instead of Vodafone to cross check. But the problem was repeated and not to network service provider and it is pertains to mobile phone. Then the complainant contacted to OP No.3 over the phone as well as in mail for resolution. Then the OP3’s representative over the telephone advised the complainant to contact OP No.2 since the complainant purchased the mobile phone through online. There after the issue addressed to OP No.1 website as a review of the product defect to get a resolution. But OP No.1 states that the review which was posted in their website could not be published in their webs site due to their internal policy. Then OP No.2 sent a mail to complainant and asked the complainant to sent back (refurbished) Apple I phone 65 (Gold, 64 GB) to OP No.2 office and they will replace the phone within 10 days. Then the complainant send the refurbished I phone through Blue dart courier via pod NO.15543697142 on 10/01/2019 and the consignment was delivered at their office address on 12/01/2019. There after the complainant continuously contacted to OP No.2 through telephone and sent mail. But not got any reply from OP No.2. The act of the OPs the complainant caused much mental agony and hardship. So there is deficiency of service on the part of OPs. Hence the complaint.
After filing the complaint notice issued to all OPs. OPs entered appearance before the commission and submitted their written version. OP1 contended that the website is an online plat form that enables the complainant to purchase products instead on the website at the price indicated there in at any time from any location. Moreover OP1 is only a facilitator and cannot be a party to or control any manner any transaction on the website. OP No.1 is not involved in the contract of sale between the complainant and the seller. So the complaint is reject. So the ASSPl is only a facilitator. The complainant has not bought any product form OPO No.1 is not liable to redress the grievance of the complainant. Any guarantee of the goods sold through the market place is the responsibility of the seller. So there is no deficiency o service and unfair trade practice on the part of OP1. So OP1 is not liable to compensate.
OP NO.3 contended that the second hand electronic goods, including the concerned I phone are specifically barred from being imported. The complainant’s I phone was not imported into India by Apple India Pvt. Ltd; instead it is a device which was originally sold in the U S A. All I phones which are imported by OP No.3 directly to be sold in India can be sold and repaired in India. The Indian import policy makes it clear that no electronic product which is not legally imported by the importer can be sold either directly or indirectly in India. OP No.2 has sold an I phone to the complainant which was not legally imported into India. So OP No.2 has misled the complainant and sold him the illegal product. So OP No.3 is not responsible for the sale and the complainant should make all his claims against OP No.2 OP No.3 is not liable and the complaint is liable to be dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency in service from the part of OP towards complainant?
- Whether the complainant is entitled for any relief
- Relief and costs
The evidence on merit of the oral testimony of Pw1 and marked Ext. A1 to A7. No oral evidence from the side of the OPs and no documents were marked from their side.
Issue No.1
The complainant adduced evidence before the commission by submitting his chief affidavit in lien of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. According to the complainant the I phone was ordered through online as per Ext. A1 invoice dated 20/10/2018 and paid Rs. 32499 to OP2 and received the I phone on 25/10/2018. Ext. A1 to A7 were marked on his part to substantiate his case. The complainant was cross examined as Pw1 by OPs 1 and 3. IN cross examination complainant admits that “warranty തന്നത് OP2 ആണ്. OP3 എനിക്ക് യാതൊരു warranty - യും തന്നിട്ടില്ല. OP1 ൻറെ പ്ലാറ്റുഫോമിൽ OP2 ൻറെ അടുത്ത് നിന്നാണ് ഞാൻ ഫോൺ വാങ്ങിയത്. It is clear that OP2 assure that he had sent a mail to the complainant stated that to send back the iphone to the office address of OP2 and replace the complainant’s i phone within 10 days. So OP2 is bound either to replace the (refurnished) Apple I phone 6S or to refund that value of the mobile phone ie, Rs.32499/- to the complainant. The OPs NO.3 vehemently stated that there is no deficiency of service on their part.
On perusal of the pleadings, documents and evidence we the commission hold that the i Phone was purchased through online from OP1 on 25/10/2018 for Rs. 32,499/- and the phone received on 25/10/2018. As per Ext A2, there was a warranty of 6 months. But after purchase of 2 months the mobile phone become defective. As per Ext. A6 the mail confirmation from OP2 to return the mobile phone with in 10 days to the complainant. So we are of the considered view that OP2 is direct to replace the mobile phone model No. Apple I phone 6S (Gold 64 GB). Since he failed to do so. We hold that there Is deficiency of service and unfair trade practice on the part of OP No.1 and 2. Hence issue No.1 found in favour of the complainant and answered accordingly. OP3 is an unnecessary party and exonerate his liability also.
Issue No.2 and 3
As discussed above the i Phone 6S purchased by the complainant became defective within 2 months after the purchase. So we hold that the OP NO.1 and 2 are jointly and severally liable to redressal the grievance caused to the complainant. It is an evidence, before the commission that the complainant caused much mental agony and financial loss due to the deficiency of service on the part of OP No.1 and 2. There is priority of contract between the 2nd OP and complainant. Therefore we hold that OP No.2 is liable to refund the value of i Phone Rs.32,499/- to the complainant. OP1 and 2 is jointly and severally liable to pay Rs. 5000/- as compensation and Rs.2000 as litigation cost. Thus issue No.2 and 3 are also accordingly answered.
In the result is the complaint is allowed in part directing the OP No.2 to refund Rs.32,499 to the complainant along with OP1 and OP2 jointly and severally liable to pay Rs.5000/- as compensation and Rs. 2000/- as litigation cost within 30 days of receipt of this order. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exhibits for complainant
A1 Invoice
A2 Warranty Card
A3 IME1 No. Image
A4 Courier tracking POD
A5 Reply from Amazon
A6 Mail from Dream Technology
A7 Courier charge bill
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Senior Superintendent
