IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Tuesday the 20th day of March, 2018
Filed on 06.12.2017
Present
1. Smt. Elizabeth George (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.326/2017
Between
Complainant:- Opposite parties:-
Sri.Vishnu.C.R 1. Sane Retail Pvt. Ltd
Chirayil No.42/143
Thumpoly.P.O, Kachirakanahally village
Alappuzha. Jadigenahally, Hubli
Hoskote Taluk
Banglore, Karnataka
2. Flipcart Internet (P)Ltd
Ozone Manay Tech Park
56/18 & 55/09, 7th Floor
Garvebbhavipalya , Hosar Road
Banglore, Karnataka
Pin 560068
3. Prime sell
Ansons Building
CCSB Road
East or Iron Bridge
Alappuzha-688011
O R D E R
SMT. JASMINE D. (MEMBER)
The case of the complaint in short is as follows:-
Complainant had purchased a mobile phone for an amount of Rs.11,999/- on 16/12/2016 through the 2nd opposite party. The opposite parties assured one year warranty for the product. But immediately after the date of purchase the complainant noticed that the calling sensor is not working and the complainant approached the 3rd opposite party who is the authorized service centre to rectify the defect. Complainant entrusted to the phone to the 3rd opposite party on 22/8/2017. The opposite party rectified the defect the returned the phone to the complainant but there after on 31/10/2017 the phone became again defective and entrusted to the 3rd opposite party. Even though the 3rd opposite party repaired the phone the defect persisted. The complainant approached the 3rd opposite party again on 24/11/2017 entrusted the phone and the 3rd opposite party returned the phone saying that mother board has replaced and the defect was properly cured. But the defect persisted Complainant approached the 3rd opposite party many times but the defect of the phone has not been rectified so far. The complainant sustained much mental agony and hence filed this complaint.
2. Notice was issued to the opposite parties. 1st and 2nd opposite party appeared before the Forum and filed version. Opposite party 3 was set exparte.
3. Version of the 1st opposite party is as follows:-
1st opposite party is carrying on business of sale of goods manufactured by others this opposite party is not engaged any sale of goods manufactured by there on the product sold by the opposite party. That the 1st opposite party submits that the products sold by the 1st opposite party carries manufacturer’s warranty. As a reseller, involvement of 1st opposite party in the entire transaction is limited only to selling the products of various manufacturers. It is pertinent to mention here that there has neither been any shortage of supply nor any nor any deficiency of service on the part of the 1st opposite party. Liability to provide after sale services does not lie upon the 1st opposite party as the 1st opposite party is not the manufacturer or the service centre engaged by the manufacturer who is 3rd opposite party in the present complaint and hence, no cause of action lies against the 1st opposite party No.1 in the present complaint. 1st opposite party is an online reseller registered on Flipkart.com and the products sold by 1st opposite party carries warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms & conditions determined by the manufacturers only. Irrespective of the warranty provided by the manufacturer, as a goodwill gesture the 1st opposite party provides Ten days return/replacement policy to its customer in case there is any issue with the product which cannot be rectified. However , in the instant matter the complainant had used the product in issue for more than 8 months without any problem and then alleged to have contacted the 3rd opposite party for redressal of his alleged grievance as the complainant himself was aware of the fact that 3rd opposite party was the only appropriate party to avail after sale services. Thus, the natural conclusion that follows from the above facts is that the 1st opposite party cannot be made liable for any subsequent defect or damage in the product. Therefore the complaint filed by the complainant is liable to be dismissed against the Answering 1st opposite party. 1st opposite party is not liable to pay compensation to the complainant hence the complaint may be dismissed.
3. Version of the 2nd opposite party is as follows:-
Complaint is not maintainable before the Forum. That the 2nd opposite party. Flip kart Internet Private Limited is a company duly registered under the provision of the companies Act.1956 and having its registered office at Vaishnavi Summit, Ground Floor, 7th main, 80 Feet Road3rd Block, Kormangala Industrial Layout. Bangalore 560034, Karnataka. The company is engaged, amount others. In providing trading/ selling facility over the internet through its website www. Flipcart.com and mobile application (Mob App) (hereinafter collectively referred to as the “Flipkart Plat form”) The 2nd opposite party provides online market place platform/technology and or other mechanism/ services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camera, computers, watches clothes, footwear, healthcare and personal products home appliances and electronics etc. That the 2nd opposite party only acts as an intermediary through its web interface www. Flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the users of the Flip kart Plat form. It is submitted that these sellers are separate entity being controlled and managed by different persons/ Stake holders. The answering 2ndopposite party does not directly or indirectly sells any products on flip kart Platform. Rather all the products on flip kart platform are sold by 3rd party sellers, who avail of the online market place services provided by the answering 2nd opposite party on terms decided by the respective sellers only. The ultimate monetary beneficiary of such sale proceedings is the seller. It is further submitted that, any kind of assurance whether in terms of warranty on the products, Price, Discounts, Promotional offers, after sale services or otherwise, are offered and provided by the manufacturer of respective product on Flip kart Platform. The 2nd opposite party neither offers nor provides any assurance and /or offers warranty to the end buyers of the product. Complainant does not fall under the category of consumer of this opposite party. The 2nd opposite party is not a trader nor a service provider and there is no privity of contract between the complainant and this opposite party. It is pertinent to note that no relief is sought against this opposite party the product purchased by the complainant has not been sold by this opposite party. Complainant had purchased the product from one of the seller listed on the Flip kart. The complainant has failed to establish any cause of action under the provision of the Consumer Protection Act, against the 2nd opposite party in the present complaint, and hence the relief claimed under the present complaint is not maintainable against the 2nd opposite party. It is further submitted that the relief claimed under the present complaint is untenable and unreasonable and the 2nd opposite party under the circumstances and for the reasons stated above, is not refund price of the product or pay any compensation to the complainant, hence the complaint may be dismissed.
4. The documents produced by the complainant marked as Ext.A1 to A5
5. Considering the allegations of the complainant the forum has raised the following issues.
1) Whether there is any deficiency in service on the part of the opposite party?
2) Whether the complainant is entitled to get any relief?
6. Issues:-
The case of the complainant is that the complainant had purchased a mobile phone through 2nd opposite party on 16/12/2016 for an amount of Rs. 11,999/- the product became defective during the warranty period and entrusted to the 3rd opposite party. Even though the 3rd opposite party repaired it many times defect persisted and complainant could not use the same. Hence filed this complaint.
Complainant produced 5 documents Ext.A1 to A5. Ext.A1 is the invoice dtd. 17/12/2016. Ext.A2 is the service record dtd. 22/08/2017. Ext.A3 is the service record dtd. 10/11/2017. Ext.A4 is the service record dtd.24/11/2017. Ext.A5 is the Job sheet dtd. 4/12/2017. From the documents it can be seen that the product became defective on many times during warranty the period. According to the complainant he had purchased Redmi- Note 3 mobile phone and 3rd opposite party is the authorized service centre. From the documents it is clear that the defect noticed in almost all the job sheets are one and the same that its sensor fault. According to the complainant time add again he approached the 3rd opposite party but they failed to rectify the defect. The product purchased by the complainant has inherent defect. From the documents it is clear that the product is under warranty. Since the opposite parties filed to rectify the defect properly or to replace the product they have committed deficiency in service and complainant is entitled to get it replaced. The opposite parties are jointly and severally liable for the same.
In the result the complaint is allowed the opposite parties are jointly and severally directed to replace the mobile phone with new one of the same model / price. The opposite parties are further directed to pay an amount of Rs. 2000/- (Rupees Two thousand only) towards compensation and Rs.1000/- (Rupees Thousand only) cost. The order shall be complied within one month from the date of the receipt of this order, failing which the opposite parties are directed to refund the price of the mobile phone Rs.11,999/- (Rupees Eleven thousand nine hundred and ninety nine only) with 9% interest from the date of order till realization. On compliance of the order the complainant is directed to return the disputed product to the opposite parties.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 20th day of March 2018.
Smt. Jasmine.D. (Member) : . Smt. Elizabeth George (President):
Sri. Antony Xavier (Member) :
Appendix:-
Evidence of the complainant:-
Ext.A1 - Invoice dtd.17/12/2016
Ext.A2 - Service record dtd. 28/08/2017
Ext.A3 - Service record dtd.10/11/2017
Ext.A4 - Service record dtd. 24/11/2017
Ext.A5 - Job Sheet dtd. 4/12/2017
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- Br/-
Compared by:-
