BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.139 of 2016
Date of Instt. 28.03.2016
Date of Decision: 27.03.2018
Sh. Abishek Jain s/o Sh. Vijay Kumar Jain r/o 166, Shakti Nagar, Jalandhar.
..........Complainant
Versus
1. M/s WS Retail Services Pvt. Ltd. through it's Managing Director having its corporate office at 42/1 & 43 Kacherakanahalli Village, Jadigenahalli Hobli, Hoskote Taluk, Banglore, Karnatka-560067.
2. Solution Mobile Service Through it's Proprietor/Partner, IInd Floor, Above Gulati Opticals, Opposite Josan Market, Hall Bazar, Amritsar.
3. Huawie Telecommunication (India) Company Pvt. Ltd through it's Managing Director, 7th Floor, Tower A, Space I Tech Park, Sona Road, Sector 49, Gurgaon, Haryana-122001.
4. Flipkart Online Services Private Limited through its Director Sh. Sachin Bansal and Sh. Binny Bansal, flipkart.com 447/B, Ist A Cross, 12th Main, 4th Block, Opposite BSNL Telephone Exchange, Koramangala, Banglore-560034, Karnataka, India.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. Nitish Arora, Adv Counsel for the Complainant.
Sh. Vishal Chaudhary, Adv Counsel for OP No.1 and 4.
OP No.2 exparte.
Sh. Jatinder Arora, Adv Counsel for the OP No.3.
Order
Karnail Singh (President)
1. This complaint is filed by the complainant, wherein alleged that the complainant has purchased a mobile handset make Nexus 6P IMEI No.867981020768308 for his personal use and is therefore a consumer as per the 'Consumer Protection Act'. The OP No.1 is the seller/vendor having its arrangement with OP No.4 and OP No.3 is engaged in the business of manufacturing of telephone equipment whereas OP No.2 is the authorized service station of OP No.3. OP No.4 is an ecommerce company providing online shopping service.
2. The complainant has purchased mobile handset make Nexus 6P IMEI No.867981020768308 for Rs.20,000/- from OP No.1 on 09.12.2015 in exchange of his old handset i.e. Apple Iphone 5s having IMEI No.358689054836232 by availing an exchange discount of Rs.20,000/- as per the deal floated and advertised by OP No.4 on its website. The price of the exchange discount was determined by the OP No.4 as per their policies. Therefore, the actual amount of handset purchased by the complainant was Rs.40,000/-. The said order was placed online through the website of OP No.4 on 09.12.2015. The handset purchased was delivered at the address of the complainant. The exchange of the old handset was also done at the address of the complainant by the official of the OP No.4. The payment of the said handset was also received at the address of the complainant by the official of the OP No.1 and 4. The handset in question was carrying 15 months manufacturing warranty, one month screen damage etc. from the original date of purchase. The display of the said handset got broken on 1st Jan, 2016 and the complainant contacted OP No.3 through emails and telephone helpline. The official of the OP No.3 told the complainant that the handset in question needs to be given to their authorized service centre i.e. OP No.2 for repairs. The said handset was shown to the representative of the OP No.2 and they told the complainant that the said handset will be repaired in a week and asked the complainant for an advance payment of Rs.10,000/-, which was paid by the complainant on 11.01.2016. The handset in question was not taken by the representative of the OP No.2. Copy of the receipt of Rs.10,000/- is attached with the complaint. The OP No.2 assured the complainant that he has placed the order of the replacement of damaged screen to the company, which will take a week's time. He further assured that once he receives the part to be replaced, he will contact the complainant and replace the part in the handset in question. The complainant did not receive any response from OP No.2 and since then the complainant has be continuously contacting OP No.2, but he has not received any satisfactory reply from it. The complainant has also contacted OP No.3 and 4 and has sent several emails and facebook reminders regarding the issue, but OP No.3 and 4 have flatly refused to offer any services. Also OP No.3 denied that OP No.2 is their authorized service centre despite the fact that their customer care executive had only given the contact details of OP No.2 to the complainant. It is pertinent to mention here that the name and contact details of OP No.2 is also available on the official website of the OP No.3 and several other places on the web. Copy of the correspondence and contact details of the OP No.2 as an authorized service centre as listed on website is enclosed.
3. That the complainant has purchased the handset of OP No.3 on the faith of its good brand value and has also exchanged his earlier handset, which was done by the OP No.1 and 4 relying on the marketing representations of best in class after sale services made by the OP No.1, 2 and 4. The complainant is entitled to full refund of the amount of the handset, since it has not been repaired by the OPs and the complainant is not able to utilize the said handset because of the damaged screen. The complainant is also entitled to the return of the old handset, which was taken by the OP No.1 and 4. So, there is a negligence as well as deficiency in service on the part of the OPs and thus, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to make a payment of Rs.40,000/- of the price of the mobile handset and further OPs be directed to pay refund of Rs.10,000/- received by OP No.2 for repair of the mobile set and further OPs be directed to pay compensation for deficiency in service including unfair trade practice, to the tune of Rs.1,00,000/-, to the complainant and OPs be also directed to pay litigation expenses of Rs.10,000/-.
4. Notice of the complaint was given to the OPs, but despite service OP No.2 did not come present and ultimately, OP No.2 was proceeded against exparte. OP No.1 and 4 duly served and accordingly, initially OP No.1 filed its reply, but later on, the counsel for the OP No.1 and 4 suffered a statement, which was recorded on 19.07.2016 that the reply filed by OP No.1 be also read as reply of OP No.4. In its reply, OP No.1 and 4 contested the complaint of the complainant by taking preliminary objection that the complainant has suppressed true facts and is trying to mislead the Forum by presenting a concocted story, hence, the complaint is not maintainable and further submitted that the answering OP is carrying on the business of sale of goods manufactured/produced by others. The answering OP is a registered reseller on the website “Flipkart.Com” and sells product of other manufactures, traders etc. under their respective Trade Marks through the website and further submitted that the answering OP is not engaged in selling of any goods manufactured or produced on its own. The answering OP is engaged in selling of goods manufactured and produced by others and in this case, the manufacturer i.e. OP No.3, which has been impleaded as a necessary party in the present complaint and further averred that the sole grievances of the complainant relates to the after sales service and therefore, approached the OP No.3 and 2 i.e. the manufacturer and the service centre of the product in question, respectively and further submitted that the complainant does not point out any specific grievance, which has been made against the answering OP. Therefore, the complaint filed by the complainant is false, frivolous and vexatious and has been only filed with malafide intention, just for harassing the answering OP and further submitted that the present complaint should have been made only against the manufacturer or its service centre i.e. OP No.2 and 3, respectively as the entire complaint is based upon the grievances in relation to the defect in the handset and after sales service. It is further averred that the complainant himself pleaded in the complaint that the screen of the mobile phone got damaged/broken, due to his own mishandling and misuse and such physical damage in the product cannot be attributed to being inherent/manufacturing defect, therefore, complainant cannot put liability on the answering OP. It is further submitted that as per policy and goodwill gesture, the answering OP provides 30 days replacement warranty to its customer in case of any inherent defect in the product, and it is an admitted fact that the complainant did not face any problems with the product during these 30 days. On merits, it is admitted by the answering OP that the complainant purchased the mobile phone, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. OP No.3 filed its separate reply, whereby contested the complaint by taking preliminary objections that the present complaint is false, incorrect, baseless, malicious, malafide, wholly misconceived and groundless and is nothing but an abuse of the process of law. It is an attempt to waste the precious time of the Forum as the same has been filed by the complainant just to avail undue advantage. The complaint has no merits and deserves to be dismissed by this Forum under Section 26 of the 'Consumer Protection Act' and complainant be directed to pay compensation of Rs.10,000/- to OP No.3 and further averred that the complainant has approached this Forum with un-clean hands and filed the complaint only to vex and harass the OP No.3 unnecessarily and further admitted that the mobile phone i.e. Nexus 6P IMEI No.867981020768308 was purchased by the complainant from OP No.1 and further alleged that the damage was caused to the said product was not a manufacturing defect, the display of the product was broken due to the mishandling by the complainant. There is no warranty cover for display damage within one month of purchase. The complainant has himself stated in the complaint that the handset was not working as the display was broken, which is beyond the warranty terms and hence, OP No.3 is under no obligation to repair the handset. The OP No.3 has tied up with various service centres across the country for carrying repair work of its product, which are within the warranty terms with the help of technical support rendered by OP No.3. The service centre, which is hired on non-exclusive basis by the OP No.3 retained the product of the complainant in its personal capacity to repair the same at cost. The OP No.3 has no role to play in the grievance of the complainant as the Service Centre, OP No.2 had retained the product on personal capacity and not as the authorized service centre of the company. As the company, for any handset, which is beyond warranty terms, OP No.3 only provides support to such service centre in terms of supply of spare parts and other technical support. OP No.3 is under no obligation to repair the handset and as such, there is no deficiency on the part of the OP No.3 and therefore, the complaint of the complainant is liable to be dismissed with cost. On merits, the factum in regard to purchase of the product is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit Ex.CA of the complainant and supplementary affidavit Ex.CB and also produced certain documents Ex.C-1 to Ex.C-20 and closed the evidence.
7. Similarly, counsel for OP No.3 tendered into evidence affidavit Ex.OP3/1 and one document Ex.OP3/2 and closed the evidence on behalf of the OP No.3 and similarly, counsel for the OP No.1 and 4 tendered into evidence affidavit Ex.OP1&4/A and closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. After taking into consideration the entire pleading of both the parties, we find that the OP No.1 and 4 are the seller of the product as well as providing service for delivery of the said product and accordingly, in this case, the mobile phone in question was purchased by the complainant from OP No.1 and the same was delivered to the complainant at Jalandhar by OP No.4 and payment was also received from the complainant at Jalandhar and as such, if any defect later on occurred in the mobile set, the same is not required to rectify by the OP No.1 and 4 rather it is the duty of the manufacturing firm to get it repaired from its authorized centre, so, accordingly, we come to conclusion that the claim of the complainant against OP No.1 and 4 is not directly or indirectly made out and as such, the complaint of the complainant against the OP No.1 and 4 is not maintainable.
10. So for the concern of the relief claimed by the complainant, in this complaint is that he purchased the mobile phone, vide Invoice Ex.C-1, for a total price of Rs.40,000/-, out of which old mobile phone in exchange price of Rs.20,000/- adjusted and then complainant has paid only Rs.20,000/-and delivery of the mobile phone is made by the Flipkart/OP No.4, vide delivery letter Ex.C-2 and thereafter, the complainant sent numerous email messages, which are Ex.C-3, Ex.C-5 to Ex.C-9 and when complainant asked the OP No.3 for repairing of the mobile, then the OP No.3/manufacturing firm gave a reference of the service centre at Amritsar is OP No.2 i.e. Solution Mobile Service and this was obtained by the complainant from a website and copy of the same is available on the file Ex.C-10, then notice was given by the complainant to the OP, but the mobile phone of the complainant did not repair till today by the OP No.2, who is authorized service centre of OP No.3/manufacturing firm.
11. OP No.2 in this complaint is proceeded against exparte, whereas the OP No.3/manufacturing firm appeared and took a simple plea that the mobile in question Nexus 6P was purchased by the complainant from the OP No.1 and the said mobile is manufactured by the OP No.3 and further alleged that there was no manufacturing defect in the said mobile phone rather as per version of the complainant, the display of the product was broken due to mishandling of the complainant and mobile phone of the complainant is broken due to the fault of the complainant himself and as such, the same is not under warranty terms and further alleged that the mobile phone of the complainant had retained by OP No.2 on personal capacity and not as authorized service centre of the company and even the company supplied the spare parts of the mobile set/product if the same is within warranty period and the warranty terms.
12. We have considered the plea taken by the OP No.3 and find that when any company manufactured any product, then the said company is legally bound to supply the spare parts of that product till the life of that product and similarly, in this case, the mobile phone of the complainant was broken due to fall and the same was produced by the complainant with service centre/OP No.2, as per document, the OP No.2 is authorized service centre of OP No.3/manufacturing firm, each manufacturing firm open their authorized service centre across the country under the responsibility of the company for any damages caused to the customer and similarly in this case, the complainant had deposited an advance amount of Rs.10,000/- for repair of the mobile phone, the said advance amount of Rs.10,000/- was deposited by the complainant with service centre i.e. OP No.2, vide bill Ex.C-4. It is categorically mentioned in the aforesaid bill that the said amount is an advance, if any service centre of the manufacturing company received the amount and failed to repair the product or failed to return the product, then all the responsibility is casted upon the said manufacturing firm because each and every service centre is running the business under the supervision or as an agent of the manufacturing firm. Whenever, any fault is committed by the agent or employee, then the principal is liable to fulfill the said damage and accordingly, in this case, if the mobile phone of the complainant had not repaired by the OP No.2, despite getting an advance amount of Rs.10,000/- for repair of the said mobile and later on, the OP No.2 is not available, then it is the duty of the OP No.3 to indemnify the complainant in all manner, there is no dispute that the mobile in question was damaged due to the fall and the complainant is not entitled for free service or free spare parts because the same is not under warranty and moreover, admittedly the complainant himself paid the charges of the repair or the price of the display and then the question for warranty is not coming in the way. So, with these observations, we are of the considered opinion that there is a clear cut deficiency in service on the part of the OP No.2 and 3 and they are liable to indemnify the complainant.
13. In view of the above detailed discussion, the complaint of the complainant qua OP No.1 and 4 is dismissed, whereas the complaint of the complainant qua OP No.2 and 3 is partly accepted and accordingly, OP No.2 and 3 are directed to repair the mobile phone of the complainant on charges basis, replaced the display system after getting its price whatsoever and then returned the mobile phone to the complainant in properly working condition. However, in this case, the OP No.2 and 3 make a delay for providing a service of repair the mobile phone, therefore, the complainant is entitled for compensation as well as litigation expenses and accordingly, the OP No.2 and 3 directed to pay compensation of Rs.7000/- for harassment to the complainant and also directed to pay litigation expenses of Rs.3000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
27.03.2018 Member President
