DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 55 of 2018

Sri Uttam Ghosh,

S/O. Sri Bimal Kmar Ghosh,

Resident of A.K. Road, Ramnagar Road No.1,

Near Pal Bari, Agartala, P.O.-Head Post Office, Agartala, 

P.S.-West Agartala, Pin-799002,

Dist.-West Tripura    .…..............…..........................Complainant.

 

 -VERSUS-

 

1. Genesis Computers,

Represented by its Proprietor, having its office at 172, ARCOT Road,

Basement Shop No.9, Chennai-600026, Tamil Nadu.

 

2. Flipkart Internet Private Limited, 

Represented by its Chief Executive Officer, 

Having his office at Vaishnavi Summit, No.6/B, 7th Main,

80 Feet Road, 3rd Block, Koramangla, Bangalore-560034, India.

 

3. Apple India Private Limited,

Represented by its Chief Executive Officer, Having his office at 19th Floor,

Concorde Towers C, UB City, No.24, Vittal Mallya Road, 

Bangalore-560001.

 

4. B2X Service Solutions India Private Limited, 

CG-08, Ansal Plaza Khel Gaon Marg, New Delhi, India, 

Pin Code-110049 …......................................... Opposite parties.

 

      __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. Dr. G. DEBNATH

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

C O U N S E L

 

For the Complainant : Sri Surajit Chaudhuri,

  Advocate. 

For the O.P. No.-1&4 :  None appeared. 

For the O.P. No.-2 :  Sri Kajal Nandi, 

  Advocate.

For the O.P. No.-3 : Sri Arindam Kar.

  Advocate.                                                                                                                                            

  

JUDGMENT  DELIVERED  ON: 26/04/2019

J U D G M E N T

The complainant Sri Uttam Ghosh, set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act, 1986 complaining deficiency of service committed by the O.Ps. 

  The complainant's case, in brief, is that the Complainant on 21/01/2018 had booked from Agartala an Apple iphone 7 plus mobile set through the online portal Flip kart(O.P. No.2) for a price of Rs.59,450/-. Thereafter, the Flip kart delivered the Apple iphone 7 plus mobile set having IMEI No.356572083284016, product serial No.FYQVL109HFY7 to the Complainant. Along with the product a tax invoice No.FABKSA1800000001 dated 23/01/2018 was also sent to him. From the tax invoice the complainant came to learn that the Apple iphone 7 plus mobile phone was sold by the Genesis Computers, Tamil Nadu(the O.P. No.1) through the O.P. No.2. The complainant found the mobile phone defective after using the same for few days. It was found to be over heating. The complainant conducted search through the Apple website in order to find out the nearest Apple iphone service centre. He did not find any service centre existing in Tripura. So he had to go to Delhi on 08/07/2018 for getting his mobile phone checked by an Authorized service centre. He accordingly visited the Authorized service centre of the Apple iphone namely  B2X Service Solutions India Private Limited, CG-08, Ansal Plaza Khel Gaon Marg, New Delhi(O.P. No.4). After inspecting the mobile phone the O.P. No.4 informed him that the Apple iphone 7 plus mobile phone which was sold to him through Flip kart was a second hand mobile set and that it had no warranty coverage. The mobile phone was initially sold in South Korea on 22/11/2016. As per request of the complainant, the O.P. No.4 gave him a written report indicating the status of the Apple iphone 7 plus mobile set to be a second hand set which was earlier sold in South Korea on 22/11/2016 and its warranty coverage having been lapsed. The complainant in his complaint has alleged that he has been cheated by the O.Ps. and that he has been supplied a second hand Apple iphone 7 plus set and that too was also defective one though he had paid the full amount of the consideration money of Rs.59,450/- for the product. Due to the deficiency of service and unfair trade practice committed by the O.Ps. the Complainant asserted that he has suffered mental agony, hardship and pains apart from financial loss. He thus filed this case praying for cost of the Apple iphone 7 plus mobile set amounting to Rs.59,450/-, Rs.8,000/- being the travel cost to Delhi, Rs.1,00,000/- for deficiency of service, Rs.50,000/- for suffering hardship, agony, distress, pain etc. suffered by him and Rs.10,000/- being the cost of the proceedings, in total  Rs.2,27,450/-.  Hence this case.  

2. The O.P. No.2 has contested the case by filing written objection denying the allegations of the Complainant.  The O.P. asserted that Flip kart internet Private Limited acted as a Electronic Platform. The O.P. is not the seller of the iphone 7 plus mobile set. The O.P. No.2 acts an intermediary to facilitate  sale  transactions between independent third party sellers and independent end customers. All the products on Flip kart platform are sold by third party sellers, who avail of the on line market place services provided by the O.P. Flip kart on terms decided by the respective sellers and that in the instant case the O.P. No.1 was the seller. As such the O.P. No.2 Flip kart can not be held liable for the alleged defective product having been sold to the complainant. The O.P. No.2 further asserted that as he was not involved in the entire transaction executed between the seller and the complainant and since there is no privity of contract between the Complainant and the O.P. NO.2, hence O.P. No.2  can not be held liable for the alleged lapsed that had arisen out of such contract. The O.P. Flip kart further asserted that it has not been involved in any unfair trade practices. The O.P. has thus prayed for dismissal of the complaint against him. 

The O.P. Nos.1&4 in spite of receiving notices from the Forum did not turn up to contest the case. The O.P. No.3 although made appearance before the Forum but he did not file written objection. So the case proceeded experte against the O.P. Nos.1,3&4.

3. EVIDENCE ADDUCED BY THE PARTIES:

    The Complainant has examined himself as PW-I and he has submitted examination-in-Chief by way of Affidavit. In this case the complainants produced 05 documents namely Report of the service centre(O.P. No.4), Boarding passes of Indigo Air line showing journey performed by the Complainant from Agartala to Delhi, Copy of Food Bill issued by North Eastern Electric Power Corporation Ltd., Photocopy of Air Ticket & the Copy of tax invoice issued by the O.P. No.1. The documents are marked Exhibit-I series. 

On behalf of the O.P. No.2 one Sri Amarnath Ghosh, Authorized signatory of O.P. No.2 submitted evidence by way Affidavit. But Sri Ghosh did not turn up before the Forum for cross examination. The said O.P. did not produce any documentary evidence.

4. POINTS TO BE DETERMINED:

Based on the contentions raised by both the parties in their pleadings and having regard to the evidence adduced by the complainant the following points cropped up for determination:

(I) Whether the O.P. Nos.-1,2&3 have committed any deficiency of service and are involved in unfair trade practices?

  (II) Whether the complainant is entitled to get cost of the product and compensation/relief as prayed for?

5. DECISION AND REASONS FOR DECISION:

  Now we are to decide the issues on consideration of the materials on record. 

  It is admitted and established fact that the Complainant had purchased the Apple iphone 7 plus mobile set through on line portal Flip kart(the O.P. No.2) on consideration of Rs. 59,450/-  from the Genesis Computers, Tamil Nadu(the O.P. No.1). The product was delivered to the complainant on 23/01/2018. After using of the same for few days the complainant found the mobile phone defective. As he did not find the service centre of Apple iphone 7 plus at Agartala, he had to move Delhi where he approached the O.P. No.4 B2X Service Solutions India Private Limited who is the authorized service centre. From the evidence on record particularly  the report submitted by the service centre(Exhibit-I series) it is evident that the Apple iphone 7 plus set which was sold by the O.P. Nos.1&2 in favour of the Complainant was second hand one and that it was earlier sold in Korea on 22/11/2016. From the report given by the O.P. No.4 it is also established that the O.P. Nos.1&2 were involved in unfair trade practices and as such they are also liable for deficiency of service. It has been contended by the O.P. No.2 that the O.P. No.2 provided on line market place where independent third party can list a product for sale  and that the sellers are slowly responsible for listing of the products. It is further argued that since the O.P. No.2 is not a seller, so no liability can be fixed upon him for the alleged second hand defective iphone 7 plus mobile set having been sold to the Complainant. According to the O.P. No.2 since the complainant is not a consumer to him and as such the complaint lodged by the Complainant deserves to be dismissed against him.  The contentions raised by the O.P. No.2 do not appear to us acceptable. We find that the complainant by adducing evidence has amply proved that he had purchased the Apple iphone 7 plus mobile set through on line portal set up by the O.P. No.2 Flip kart on consideration of Rs.59,450/- and that amount has been received by the O.P. No.1 Genesis Computer. It is further established from the report of the service centre, i.e. the O.P. No.4 that the iphone 7 plus which was purchased by the complainant is a second hand one and it was initially sold in Korea on 22/01/2016. The report of service centre has been proved as Exhibit-I series. We further find that the O.P. No.1 Genesis Computer and the O.P. No.3 the Apple India Private Ltd. even after receiving notices from the Forum did not contest the case. Even the O.P. No.4 the Authorized service centre also did not contest the case though notice sent from the Forum was duly served upon of the same O.P. The conduct of the O.P. Nos.1,3&4 shows that they have admitted the case of the Complainant.    

In our opinion the O.P. Nos. 1&2 who were associated with the sale transaction of the second hand mobile set can not shirk their responsibilities for the lapse. They have indulged in unfair trade practices. The complainant consequently has suffered mental agony, harassment & financial loss. It has been observed by us that despite the O.P. No.2 having knowledge of the incident, the said O.P. did not take any step against the O.P. No.1 who had received consideration amount for the product. 

In view of the discussion made above, we find and hold that the complainant has succeeded in establishing his case U/S 12 of the Consumer Protection Act,1986.

Hence we direct that the Complainant is entitled to get the price of the Apple iphone 7 plus mobile set amounting to Rs.59,450/-. For causing sufferings, mental agony and harassment the Complainant is also entitled to get compensation of Rs.20.000/- & Rs.5,000/- as cost of litigation. Thus in total the Complainant is entitled to get Rs.84,450/-(Rs.59,450/-+Rs.20,000/-+Rs.5,000/-). 

The O.P. Nos.1&2 are jointly and severely directed to pay the amount of Rs.84,450/- to the Complainant  within a period of 2 months from the date of judgment failing which the amount of compensation shall carry interest @ 9% P.A. till the payment is made in full. We further direct that the Complainant shall return the mobile set as and when the O.P. Nos. 1&2 make payment to him the cost of the mobile set.

 

ANNOUNCED

 

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 

 SMT. DR. G. DEBNATH,

 MEMBER, 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA

 

SRI U. DAS

MEMBER,

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.