BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.175/2015.
Date of instt. 24.8.2015.
Date of Decision: 16.01.2017.
Amit son of Babu Lal resident of Thakur Basti, Fatehabad Tehsil & District Fatehabad.
..Complainant.
Versus
1. WS Retail Services Pvt. Ltd., No.42/1 & 43, Kacherakanahalli village, Jadigenahalli Hobli Hoskote Taluk, Bangalore, Karnataka, India-5602067
2.Amblex Services, MI Exclusive Service Centre 944/11 Laxmi Complex Nehru Road, Arjun Nagar Opposite Defense Colony, New Delhi-110003.
3. Flipkart
Internet Private Limited, 42 & 43 Kacherakanahalli village Jadigenahalli Hobli, Hoskote Taluk, Bengaluru- 560067.
4. Xiaomi Technology India Pvt Ltd Indiqube, 1st Floor, Marathahalli, ORR, Kadubesanahalli, Bangalore 560103, India through its Proprietor.
..Opposite parties.
Complaint under Section 12 of Consumer Protection Act.
Before Sh.Raghbir Singh, President.
Smt.Ansuya Bishnoi, Member.
Present : Sh.Rajender Verma, Advocate for complainant.
Sh. Yogesh Gupta, Advocate for opposite parties Nos.1 & 3.
Opposite parties Nos.2 & 4 exparte.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs) with the averments that he had purchased a mobile MI3 (Metallic Grey) bearing EMI No.865072025308779 through his relative Mukesh Kumar by placing an online order through OP no.1 vide bill No.BLR WFLD20140800263965 dated 05.08.2014 for a sum of Rs.13999/-. The handset in question was having one year warranty. It has been further averred that from the very beginning it developed problems qua heating, hanging and in touch screen, therefore, the complainant lodged a complaint with OP No.1 through internet but on its instructions he visited OP No.2 and got the phone repaired 2/3 times by visiting Delhi. In the month of May, 2015 the touch of the phone went out of order therefore, the complainant visited the OP No.2 on 23.05.2015 and got the same changed but the Op No.2 had charged Rs.8300/- from him under compelling circumstances despite the fact that the phone was under warranty. After that the phone worked properly for some days but it again strated creating problems such as hanging and improper functioning of camera. The complainant again visited the Op No.2 at Delhi and got the same repaired it could not redress his grievance and even the service centre also did not fix the glass of the camera. The complainant got served a legal notice upon the OPs and requested to return the cost of the phone alongwith Rs.8300/- but the OPs did not pay any heed to his request. The act and conduct of the OPs clearly amounts to deficiency in service. Hence, this complaint.
3. On presentation of the complaint, notice of the same was issued to the OPs.
4. OP No. 1 in its reply has asserted in preliminary submissions that complainant has suppressed true and material facts from this Forum. It is a registered seller on the website flipkart.com” and sells products of other manufacturers through the website. It has acquired good market reputation for its range of products offered and for its exceptional customer support. It has been further asserted that it is not engaged in selling of any goods manufactured or produced by its own. As a reseller, its involvement in the entire transaction is limited only to selling the products of various manufacturers. On merits, it has been submitted that its role comes to the end as soon as the product ordered is delivered in good condition at the address provided by the consumer. In the present case, it has delivered the product MI-3 mobile in a sealed box to the complainant in good condition and within the time specified in the order. It is the sole duty of the manufacturer and their authorized service centre to remove the defects, if any to the entire satisfaction of the customer and any warranty and period of warranty is to be provided by the manufacturer of the product. It has been further averred that 30 days replacement warranty provided by Op No.1 also stands expired, therefore, the duty to redress the grievance of the complainant qua any defect in the mobile lies with the manufacturer and service centre. There is no deficiency in service on its part. With these submissions, prayer for dismissal of complaint has been made.
5. OP no.3 appeared and resisted the complaint by filing its separate reply raising preliminary objections that complainant has suppressed the true and material facts from this Forum and that there is no deficiency in service on its part. It has been further submitted that complainant does not fall under the category of consumer of OP No.3 under the provisions of Consumer Protection Act and op no.3 has been wrongly arrayed as a party as the complainant has not paid any consideration to it. There is no privity of contract between the complainant and op no.3, therefore, complaint is not maintainable either in law or on facts and is liable to dismissed against it. It has been further averred that the complainant had purchased mobile in question from OP No.1 seller through online which is separate entity and has not been operated by it though the mobile in question has been purchased through web portal of OP No.3. Other averments made in the complaint have been controverted and prayer for the dismissal of the complaint has been made.
6. The OP Nos.2 & 4 did not appear despite service through registered cover and were proceeded against exparte.
7. The complainant in his evidence has tendered his affidavit as Ex.CW1 and documents as Annexure C1 to Annexure C1 to Annexure C6. On the other hand, appearing OPs have tendered affidavit of Ms.Swati Singh as Annexure R1, affidavit of Mr.Satyajeet Bhattacharya as Annexure R2 and document Annexure OPW1.
8. We have heard learned counsel for the complainant as well as learned counsel for the appearing parties and have perused the case file carefully.
9. There is no dispute that complainant had purchased the mobile MI3 (Metallic Grey) through online from OP no.1 for a sum of Rs.13999/- as is evident through Annexure C4. The OP No.4 is manufacturer of the mobile in question and OP No.2 is customer care centre. The complainant in support of his averments has tendered his affidavit Ex.C1 wherein he has testified all the facts so set out by him in his complaint. According to the complainant, the mobile in question was having warranty of one year, however, it developed problems from the very beginning and due to this it was brought to the OP No.2 –service centre and the repair work was done but the mobile in question again went out of order, therefore, Op No.2 changed the touch of the same by charging Rs.8300/- from the complainant as is evident through Annexure C2. Perusal of Annexure C4 reveals that the mobile in question was purchased on 05.08.2014 and the OP No.2 had charged Rs.8300/- qua replacing of touch of the mobile in question on 23.05.2015 i.e. within one year of the purchase of the handset. The complainant has specifically mentioned in his complaint that time and again the mobile in question went out of order and therefore, he had to visit OP No.2 by visiting at Delhi. The OP No.2/service centre and OP No.4/manufacturer of the mobile in question have not bothered to appear before this Forum rather opted to be proceeded exparte. The complainant is resident of Fatehabad and had to visit many times to Delhi to visit Op No.2 for repair of the mobile in question but despite that his grievances could not be resolved by the OP No.2. Since the OP Nos.2 & 4 have not contested the present complaint despite notice and have not rebutted the averments of the complainant regarding defect in the mobile, therefore, a presumption is to be drawn that the mobile set is having manufacturing defect and the complainant has to suffer financial and physical loss as well as mental harassment for visiting several times to the service centre at Delhi. The complainant has been able to prove his case. The OP Nos.2 & 4 have caused great deficiency in service as well as financial and physical harassment to the complainant. However, complainant has not alleged any deficiency in service on the part of OP Nos. 1 & 3 through whom he purchased the mobile set in question through online website.
10. Keeping in view the facts and circumstances of the present case, we are of the view that complainant is entitled to refund of the price of the mobile in question as prayed for. In this regard, we are fortified with the observations in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others 2014(1)CLT588 wherein Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. Since the OP No.2 had charged Rs.8300/- on account of replacement of the touch of the mobile in question within warranty period, therefore, the complainant is also entitled for refund of the same.
11. Thus, as sequel to our above discussion, we allow the present complaint against the OP Nos.2 & 4 and direct them jointly and severally to refund the price of the mobile in question i.e. Rs.13999/- and Rs.8300/- (charged on account of replacement of touch of the handset) to the complainant subject to depositing of the mobile in question alongwith its accessory, if any, by him with them. We also direct the OP Nos. 2 & 4 to pay a compensation of Rs.3,000/- in lump sum to the complainant for harassment and mental agony etc. This order should be complied within a period of one month, failing which the above said amount of Rs.13999/- and Rs.8300/- will carry interest @9% per annum from the date of order till actual realization and the complainant will be at liberty to initiate legal action against the opposite parties No.2 & 4. File be consigned to the record after due compliance. Copy of this order be communicated to the parties free of costs.
Announced in open Forum:
Dt.16.01.2017. (Raghbir Singh)
President,
District Consumer Disputes
Redressal Forum, Fatehabad.
( Ansuya Bishnoi)
Member
