Orissa

Rayagada

CC/184/2017

Sri Pratap Kumar Korada - Complainant(s)

Versus

M/s Flipkart Sane rETAIL pVT. lTD - Opp.Party(s)

Self

21 Dec 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 184 / 2017.                                Date.      21   .   12    . 2018

P R E S E N T .

Dr. Aswini Kumar Mohapatra,                           President.

Sri  Gadadhara Sahu,                                                                      Member.

Smt. Padmalaya  Mishra,                                                              Member

 

Sri Pratap Kumar  Korada, C/O: Devi Enterprises, New colony, Rayagada 

 Po/ Dist. Rayagada,Odisha.   Cell  No. 94385- 24442.                                                      ………Complainant

Vrs.

1.The Manager, M/S. Flipkart sane Retail Ltd., Retail Ltd., Ware house No. 42/1 & 43 Hoskote Taluk, Bengalore,560067.

 2.The Manager, Sane Retail Pvt. Ltd., 2^nd. floor, New Delhi, 110049.

3.The Manager, Xiomi India, C/O: Lkeva Business Centre, 8^th. Floor, Umiya Business Bay tgower-1, Cessena Business park,  Kadubeesanahalli, Maratheheelli, Sarajpur outer ring road, Bangalore -560103.

                                                                                                ……...Opp.Parties

For the Complainant:-Self.

For the O.P 1 & 2:-Sri R.K.Jena, Advocate, Rayagada.

For the O.P. No.3:-Sri G.S.R.Choudhury, Advocate, Rayagada

JUDGEMENT

                The  present dispute arises out of the complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for non refund of the  sale price  of mobile set which are found defective during warranty period . 

 

Upon  Notice, the O.Ps No.1,2 & 3 put in their appearance and filed  written version through their learned counsels in which  they refuting allegation made against them.  The above O.Ps  taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P  No. 1 to 3. Hence the O.P No.  1 to 3 prays the forum to dismiss the case against  them  to meet the ends of justice.

The O.Ps appeared and filed their written version.  Heard arguments from the  learned counsels for  the  O.Ps  and from the complainant.    Perused the record, documents, written version  filed by the parties. 

The  parties advanced arguments inter alia  vehemently opposed the complaint touching the points both on the facts  as well as on  law.

                                                         FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had purchased a Redmi 3S-prime(Gold 32GB  mobile from the O.P.  No.2 through  on line  flipkart Tax invoice No.  FOYQG00817-00635659 on Dt.30.12.2016  by paying a sum of Rs.8,999/-  with  one year warranty (Copies of the bill is in the file which is marked as Annexure-I. But unfortunately after delivery  with in few months the above  set found defective and not functioning. The complainant complained the O.Ps  for necessary replacement in turn the OPs  had paid deaf ear.   The complainant further approached the O.Ps for return the money which he spent but for no use.  Hence C.C. case.

                 In support of his case the O.P. No.1 & 2 relied  citations in their written version  as laid down by the Apex Court as well as Commissions in the following cases.

 

                  The Hon’ble High Court of Delhi in the case of  Kent RO Systems Ltd. and another  Vrs. Amit Kotak&Ors. CS(COMM) 1655 /2016 vide order Dtd. 18.1.2017 has succinctly  pointed out that the  provisions of the IT Act and the IT Rules framed there under do  not obligate an intermediary to, of its own, screen all the   content being posted on its portal for infringement of any rights or laws. The court stated that an intermediary is not possessed with the prowers nor is mandated by law, to identify every single case of infringement or violation, unless they are expressly made aware of the same.

 

                     The Hon’ble Supreme Court of India in the case  of Shreya SinghalVrs. Union of India AIR-2015 SC 1523, held that an  intermediary would be liable only  if it  fails  to take down online content despite receipt of ‘actual knowledge’ of infringement or violation through a court order intimating the same. The Hon’ble Supreme Court specifically recognized that in light of the volumes of data  that intermediary deals with, it would not be in a position to verify the genuineness or products being  sold over its online  market and  in any event, an intermediary ought  not  to be adjudicating  disputes between two private parties.

 

                     Further the Hon’ble Delhi State C.D.R.Commission, in the matter of Vinay Narain Vrs. L.G. Electronics India Pvt. Ltd.,  andors., in  case  No.270/2010 decided on  21.05.2015   had held that “the O.P. No.2 is neither  a necessary nor a proper party as it has nothing to do with the quality of the product. It is only a shopping site and the manufacturer is responsible  for the product.”

                     Again the Hon’ble High Court of Kerala in case titled as Flipkart Internet Pvt. Vrs. State of Kerla  on 7^th. January, 2013 has dealt with the issue    of online marketplace and  has stated that the functioning  performed  by  the marketplace model are covered under definition of ‘service provider’ and do not amount to  transaction of sale.

 

                          Further   the Hon’ble Supreme Court in  Civil appeal No. 5168 of 2000 (Sanchayani Savings Investment (I) Ltd. & Ors. Vrs. State  of Bengal   & ors. has  held   thatr “an intermediary within the definition of Section 2(w) of the IT Act, 2000 and also that under Section -79 of the  Act, the intermediary  is exempted from any liability arising out of material that is put up on website. He, therefore, point out that these kind of application will prevent the intermediaries from doing  their business lawfully”.

 

                           Further as per clause 2.3(vii) of the press note 3(2016 series) issued by the Department of Industrial policy & promotion, Ministry of commerce and industries, Govt. of India dtd. 29.3.2016, in a market place model like that of the  O.P. any warranty/guarantee of goods and services sold will be the responsibility of the seller and not that of the  online platform provider like the O.P.  No.2.

 

                         The O.P. No. 1 & 2 only provides services of an online marketplace where buyers and sellers may interact and complete purchases.  Accordingly, the products  available for  sale in the answering O.Ps 1 & 2  marketplace are supplied by the seller and purchased by the consumer.  At no stage in the transaction does the  O.P. No. 1 & 2 have any affiliation or link with the product(s) and does not  hold out to the purchasing public that the products  are that of the answering  O.Ps 1 & 2 manufacture or origin. Thus the complainant’s allegations are completely misplaced and unfounded and do not constitute a valid cause of action.

                        The O.P. No.1 & 2 in their  written version  clearly mentioned that the O.P. No.1 & 2  neither  have the knowledge nor the facility to ascertain if the alleged defects in  the product   are due to  manufacturing  flaws or customer and it is only the  manufacturer and the service centre of the manufacturer who can  resolve any such alleged defects with the product. The warranty  is provided by the manufacturer, subject to the warranty terms and condition and the O.P. No.1 & 2   has no  role  to play in the warranty terms and conditions and the same is clearly enumerated  under clause -13 of conditions of use- disclaimer.

                           Basing  on the above citations and discussion the  O.P. No. 1 & 2  have not liable to replace or refund the above product amount  but the O.P. No. 3  is held responsible   in this case  and the O.P. No. 3 is liable to pay.

 

                             The  O.P. No.3  in their written version contended that  the complainants allegations regarding  deficiency of service  also lack any basis and are entirely  untenable. It is submitted that the complainant has not submitted any evidence  such as a job sheet in connection with any alleged  visits to the authorised service centre  of the O.P. No.3. Additionally, the  complainant has not provided any evidence regarding  manufacturing defects  in the product. It is therefore clearly established that the complainant has provided false information in the complaint to mislead the forum and to unnecessarily harass the  O.P. No.3 by filing this false complaint. On this ground alone, the complaint should be dismissed in limine.

 

                  Admittedly the  purchase of the mobile hand set of  M.I. Company  by the complainant is not denied.  The O.Ps have given an undertaking that they are  ready to  give the free  service as per the conditions of the warranty given to the said  set.  The complainant submitted that  as  per the  warranty condition  he approached  from pillar to post but the complainant  not get any  fruitful  result  till  date from any of  the  O.Ps.

                               It is well settled principle of law that  no consumer will make any such complaint if there is no such deficiency. Hence the action of the O.Ps for not giving the required service  to the complainant is a deficiency in service  on the part of the O.Ps.

                                Further it is observed that the complainant is deprived of enjoyment of the mobile set for such a long time and caused mental torture and harassment to the complainant.  Further more the  mobile is highly essential  for the  complainant  towards  his profession.

                               Now we have to see whether there was any negligence on the part of the O.Ps in treating the complainant as alleged?   We perused  the papers filed by the complainant for replacement of new  set from the very beginning.   Inspite of  services  given by the O.Ps the defects of the  above set of the complainant  could not be rectified(copies of the  service centre  report dt.29.8.2017 is in the file which is marked as Annexure-2).  We hold at this stage if the above set  required frequent servicing then it can be presumed that it is defective. If a defective set is supplied  a consumer is entitled to get refund of the price of the article or to replace a new set and also the consumer concerned  is entitled and has a right to claim compensation and cost to  meet his mental agony, financial loss.

              In the instant case as it appears  that the above set which was purchased  by the complainant  had developed defects and the O.Ps engineers are   repeatedly attempts  to restore  its regular functioning  but  not made perfect running condition    of the above set till  date.

               Hence to meet the ends of justice, the following order is passed.

                                                                                               

                                                                                                ORDER.

                In the resultant the complaint petition  stands allowed in part on contest against the O.P.  No.3 and  dismissed against the O.P. No.1 & 2.

               

                The O.P No.3  (Manufacturer)   is ordered to replace the  Redmi 3S-prime(Gold 32GB)  purchased by the complainant   with a new defect free set  with  higher end model MI-Redmi  Note 6 Pro without charging any extra price or to refund  the price of the  mobile set Rs. 8,999.00.  Parties  are left to bear  their own cost

 

                               

                The O.P No.3 is ordered to comply the above direction within one month from the date of receipt of this order.     Service the copies of the order to the parties.

 

Dictated  and  corrected  by  me.

Pronounced on this               21^st.      Day    of        December,   2018.

 

 

                Member                                                                                                                 President