SMT. MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/s 12 of Consumer Protection Act 1986 for an order directing the opposite parties to refund the value of the mobile phone along with compensation and cost for a total amount of Rs.91,000/- to the complainant for the deficiency of service on their part.
The case of the complainant in brief
The complainant was conducting an invitation card shop for the purpose of earning her livelihood. In order to promote her business she obtain some photos and designs to the cards. Then the complainant had ordered one Lenova P2A42 (gold 32 GB) mobile phone through online from OP No.1 dated 20/03/2018 for an amount of Rs.16,000/- on 27/03/2018 the complainant had received the mobile
phone through parcel delivery. At the time of delivering the box in front of the box mentioned that screen saver and back cover is inside the box. But the complainant
opened the box one side cracked mobile phone in the box and no other items seen in the box. Then the complainant open the mobile phone she could not take videos and photos from the phone and the phone is a defective one. Thereafter the complainant informed the matter to OP1 and 2. Then the complainant send email to OP1 and 2. The mobile phone was not properly working and no screen is opened. Then OP1 and 2 send a reply stating that the complainant must approach OP No.3 for checking the phone. Then the complainant approached OP No.3 checked the mobile phone and states that there is no warranty and this phone contain refurbished one. OP1 and 2 states that they will replace the phone within 10 days. But they could not replace the phone within 10 days. There after the complainant continuously contacted OP No.1 and 2 through phone and sent e-mails. But no reply from the side of OPs. The act of the OPs that complainant caused much mental pain and financial loss. She also lost her business. So there is deficiency of service and unfair trade practice on the part of OPs. Hence the complaint.
After filing the complaint notice issued to all OPs. OPs1 and 3 entered appearance before the commission and submitted their written version. OP2 received the notice and not appeared before the commission and not filed version. So OP No.2 is set ex-parte. OP No.1 contended that Flip Kart International Pvt. Limited is a company only act as an intermediary through web interface www.flipikart.com and provides a medium to various sellers all over India to offer for sale and sell their products to the users of the Flipkart platform. OP No.1 never came in possession of the actually ordered product or the alleged damaged product delivered to the complainant at any point of time. The replacement and refund for the product is responsibility of the manufacturer. The OP No.1 has not caused any financial loss or mental agony to the complainant. So OP No.1 is merely online intermediary cannot be held liable for the same.
OP No.3 contended that who is only the service center and he checked the phone and to state that is “refurbished handset”. So OP No.3 not liable to redress the grievance of the complainant. So the contention of OP No.3 is that there is no deficiency of service or unfair trade practice on the part of OP No.3 and the complaint may be dismissed.
On the basis of rival contentions by the pleadings the following issues were framed for considerations.
- Whether there is any deficiency of service on the part of OPs?
- Whether the complainant is entitled for any relief
- Relief and cost.
The evidence consists of the oral testimony of Pw1 and Ext.A1 to A3 (Series) marked and MO1 mobile phone also produced before the commission. On the OP’s side Dw1 was examined and no documents marked.
Issue No.1 to 3 taken together
The complainant adduced evidence by submitting his chief affidavit in lieu of his chief examinations to the tune of the pleadings in the complaint and denying the contentions in the version. She was cross examined as Pw1 by OP No.1. She relied on Ext.A1 to A3 series. In Ext.A1 the complainant had received the mobile phone on 27/03/2018 and paid Rs.16,000/- to OP No.1. At the time of delivering the box it mentioned the front of the box the screen saver and back cover is inside the box. But open the box the complainant could not see the other items in the box. More over Ext. A2 and Ext A3(Series) to shows that immediately after the purchase of the phone the phone became defective and not working properly. As per Ext.A2 the phone is refurbished one and the warranty is rejected by OP No.2. The complainant have no use for the above said phone.
Immediately the complainant informed the matter to OPs. But the OPs are not ready to cure the defects of the mobile phone. The phone is a refurbished one and having no warranty also. The act of the OPs the complainant caused much mental
agony and financial loss. The OPs are cheated the complainant. There is deficiency of service and unfair trade practice on the part of OPs. Hence the issue No.1 found in favour of the complainant and answered accordingly.
Issue No.2 & 3
As discussed above the OPs are not ready to replace a new mobile phone to the complainant. The complainant produce the Ext.A1 document which clearly shows that the complainant had paid Rs.16000/- to OP No.1. According to the complainant failure to provide a new mobile phone the OP’s are directly bound to redressal the grievance caused to the complainant. Therefore we hold that the OPs (1,2 and 3) are jointly and severally liable to pay the value of mobile phone of Rs.16,000/- along with Rs.4000/- as compensation and Rs.2000/- as litigation cost. Thus the issue No.2 and 3 are also accordingly answered.
In the result the complainant is allowed in part directing the OPs jointly and severally liable to pay Rs.16,000/- the value of mobile phone along with Rs.4000/- as compensation and Rs.2000/- as litigation cost to the complainant within 30 days of receipt of this order. In default the amount of Rs.16,000/- carries 9% interest per annum from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019. After the said proceedings the OPs are at liberty to taken back the mobile phone before the commission.
Exts.
A1 - Cash Bill
A2 - Warranty rejection mail
A3(Series) - E-Mail copies
MO1 - Mobile phone
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
