BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint no.38/17.
Date of instt.: 30.01.2017.
Date of Decision: 26.09.2017.
Vikas Kumar s/o Shri Kuldeep Singh, r/o H.No.1000, Ward No.23, New Peoda Road, near Gas Godown, Kaithal-136027.
……….Complainant.
Versus
- M/s Snapdeal Customer Service, Head Building No.249, ASF Tower, Udyog Vihar, Phase No.4, near India Post Office, New Delhi-110020.
- Reliance Retail Ltd., H-KTHL-JC-01, 77/10 & 78/10, Karnal Road, near Pehowa Chowk, Kaithal.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Shri Vikas Kumar, complainant in person.
Shri Vishal Digani, Advocate for Op No.1.
Shri Sanjeev Moudgil, Advocate for Op. No.2.
ORDER
(RAJBIR SINGH, PRESIDING MEMBER).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased a mobile set make LYF
Wind 1 (16GB), Item Code DW107808 bearing IMEI No.911507952774448 for the sum of Rs.6,699/- from Op No.2 vide Invoice No.SBD23B/19-17/2683 dt. 21.09.2016. It is further alleged that the said mobile set started creating problems regarding net working, battery etc. and the complainant contacted Op. No.1 and they sent engineer, who after checking the mobile, also confirmed the same problem and advised to visit the service centre of LYF Care and made a job-sheet for the same problems. It is further alleged that Op no.1 asked to send the full product for replacement and after doing so, Op no.1 sent back the mobile without battery and ear phone. It is further alleged that the complainant made several requests to Ops to replace the said defective mobile set with new one, but they did not take any action. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite parties No.1 and 2 appeared before this forum, and filed their replies separately. Op No.1 filed reply raising preliminary objections with regard to maintainability; mis-joinder of parties; jurisdiction; non-joinder of necessary parties and cause of action. On merit, it is submitted that Op No.1 arranged for the reverse pick up for the Quality Check of the product and complainant was asked to repack the disputed product as per instructions provided to him, but when the product was received from complainant, the battery and earphone was missing in the package sent by him and the said product was returned to the complainant. It is further submitted that Op No.1 cannot be held liable for a default made by complainant and so, prayed for dismissal of complaint. Further, Op No.2 filed reply raising preliminary objections with regard to maintainability and jurisdiction. On merit, it is submitted that on 12.10.2016, complainant visited Op No.2 ‘authorized service center, to report the problem of slow charging, network, handing, battery backup in the product and after verification and inspection, Op No.2 updated the software of the product. It is further submitted that on 27.12.2016, complainant again visited Op No.2 regarding problem of slow charging and Op No.2 replaced the data cable and resolve the problem of complainant. The rest of contents of complaint are denied and prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A; documents Mark C-1 to Mark C-8 and closed evidence on 01.06.2017. On the other hand, Op. No.1 tendered in evidence affidavit Ex.RW1/A; documents Ex.R-1 and closed evidence on 08.08.2017. Further, Op. No.2 tendered in evidence affidavit Ex.RW2/A; documents Mark R-1 to Mark R-3 and also closed evidence on 08.08.2017.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. The complainant reiterated all the points mentioned in the complaint. He argued that mobile set purchased from Op. No.2 started creating problems regarding network, battery etc. and he contacted Op. No.1 and they sent engineer, who after checking the mobile set, also confirmed the same problem. He further argued that on advice of the engineer, he visited the service centre of LYF Care, where a job sheet for the same problems was issued and respondent no.1 asked the complainant to send the full product for replacement. He further argued that accordingly the complainant sent full product to the Ops for replacement, but respondent no.1 sent back the mobile without battery and ear phone. It is further argued that the complainant made several requests to Ops to replace the said defective mobile set with new one, but they did not take any action.
6. On the other hand, ld. counsel for Op No.1 argued that Op No.1 is neither the manufacturer nor the seller of the product in question and the Op No.1 operates its online marketplace platform under the brand name/trademark “Snapdeal”. It is further argued that in view of the policy of serving its customer best and in order to facilitate replacement, the Op. No.1 arranged for the reverse pick up for the Quality Check of the product and complainant was asked to repack the disputed product as per instructions provided to him but when the product was received back from the complainant, its battery & earphone was missing in the package and the said product was returned to the complainant. Ld. counsel for Op No.2 argued that on 12.10.2016 complainant visited its authorized service center to report the problem of slow charging, network, handing, battery backup in the product and after verification and inspection, Op No.2 updated the software of the product. It is further argued that on 27.12.2016, complainant again visited Op No.2 regarding problem of slow charging and Op No.2 replaced the data cable and resolve the problem of the complainant.
7. From the pleadings and evidence of the case, it is admitted case of the parties that complainant purchased the mobile set in question through Op. No.1 having item Code DW107808 bearing IMEI No.911507952774448 for a sum of Rs.6,699/- from Op No.2 vide Invoice No.SBD23B/19-17/2683 dt. 21.09.2016. There is also no dispute that the said mobile set was having defect and the same could not be removed. The dispute between the parties is with regard to the battery and earphone as complainant alleges that he sent the entire product including the battery and earphone, whereas, according to Op No.1, the battery and earphone was missing from the package sent by the complainant. There is no doubt that the Op No.1 asked the complainant for reverse pickup of the product and the same was received by the opposite party from the complainant, but after receiving the same, the opposite party No.1 alleged that the battery and earphone was missing from the package sent by the complainant. It was the duty of the Op No.1 to check the entire articles of the product at the time when the same were received by him from the complainant, but the Op No.1 has not do so. The contention of Op No.1 that when he received the package of the product from the complainant and on checking the same, the battery and earphone were found missing, has no force, because as already stated above, it was the duty of Op No.1 to check the product at the time when it was taken from the complainant. Moreover, it can be said that the earphone can be used by the complainant, but the battery of the mobile set was of no use of the complainant, then why the complainant will kept the same with him. In the facts and circumstances of the case, we are of the considered view that the Op No.1 has not done his duty properly and carefully and later on, the OP No.1 cannot say that the battery and earphone were missing from the package sent by the complainant. It is pertinent to mention here that Op No.2 sells the product through Op No.1, therefore, both the Ops are liable for the battery and earphone of the mobile set of the complainant as well as for the replacement of the same. Hence, both the Ops are deficient while rendering services to the complainant.
8. Thus, in view of above discussion, we allow the complaint and direct the Ops to replace the defective mobile set of the complainant with new one of the same model, as purchased by the complainant vide Invoice No.SBD23B/19-17/2683 dt. 21.09.2016. However, it is made clear that if the said mobile as purchased by the complainant, is not available with the Ops, then the Ops shall refund Rs.6,699/- as the cost of mobile set to the complainant. The Ops are also burdened with costs of Rs.1100/- as compensation for harassment, mental agony and costs of litigation charges to the complainant. Both the Ops are jointly and severally liable. Let the order be complied with within 30 days from the date of communication of order. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.26.09.2017.
(Harisha Mehta), (Rajbir Singh),
Member. Presiding Member.
Present: Shri Vikas Kumar, complainant in person.
Shri Vishal Digani, Adv. for Op. No.1.
Shri Sanjeev Moudgil, Adv. for Op. No.2.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is allowed. File be consigned to record-room after due compliance.
Dated: 26.09.2017. Member Presiding Member.
