BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.136 of 2021
Date of Instt. 25.03.2021
Date of Decision: 21.04.2023
Sandeep Kumar aged about 37 years, son of Subash Chander, House No.948, Rose Garden Near Rasila Ashram, Basti Danish Mandan.
..........Complainant
Versus
1. Reliance Retail Ltd. C/o Bidalur Village Thyamangondlu Hobli, Nelamangala Taluk, Banglore Rural, District Bangalore KAR 562123.
2. Mahendru Telecom, 2nd Floor, Monika Tower, Milap Chowk, Jalandhar, 144001.
3. Best IT World India Pvt. Ltd. 87, Mistry Inductrial Complex, MIDC Cross Road, ‘A’ Andheri (East) Mumbai-400093, Maharashtra India.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Ashok Kumar, Adv. Counsel for the Complainant.
Sh. Balraj Sharma, Adv. Counsel for the OP No.1.
OPs No.2 & 3 exparte.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the OP is running a digital platform under the name and style ‘Reliance Digital’ for the sale and purchase of the electronic products. The OP had online advertised one of its products as ‘iBall Moviez’ featuring as 25.66.cm (10.1) inch 1920X1200 IPS FHD capacitive Multi touch Display along with 1.6.GHZ + 1.2 GHZ powerful acta core ARM Cortex A55 processor. By going through the advertisement the complainant had booked an order for the same on 17, Jan 2021, which was shipped to the complainant's residence on 20 Jan, 2021 vide order No. RDF09161163. The complainant being a banker opened that product in the evening and plugged it to the charging. After 3 to 4 hours of the charging the products, it did not show any display/battery status on the screen. Even after 8 hours of the charging it did not get booted up as the product was found faulty, because of its incapacity to get charged up. The complainant on finding the fault immediately sent an email to the Reliance Digital on very next day i.e. 21, Jan.2021 at 03.38 A.M in the very early morning showing no delay on his part. On receiving the e-mail from the complainant, respondent sent in response an e-mail to go further in issue resolving process. The complainant when visited the OP No.2 ‘Ball Moviez’ service centre named Mahendru telecom situated at 20 floor, Monika Tower, Milap Chowk Jalandhar, Punjab as per suggestion of the OP No.1, but they did not co-operate and told to receive the (Dead on Arrival) the next day. The cousin brother of the complainant visited the service centre on the next day, they still did not issue (Dead on Arrival) instead kept the tablet for finding the fault and give casual statement at the back of their visiting card wording ‘New Tab replacement’. After almost 15 days on 5th, Feb. 2021, the OP No.2 make an estimation of Rs.5864/- for the repairing of the tablet. Which include of display and sim slot damaged. Despite all this, respondents have not issue (Dead on Arrival) even after so many e-mails, Voice calls, Physical visit and even after co-operation of retaining it with the service centre. The complainant being a reputed bank manager of state Bank of India Kapurthala Branch, Despite the facts he has a busy schedule, he send his cousin brother to the service centre to co-operate with the respondents but their behavior seems very harassing and unprofessional. The complainant sent the multiple email to the OP on different dates and time and telling them to replace the tab or do the necessary, but the respondents just give the computerized response and tried to put all the blame on the complainant. The complainant even on till date is not getting any replacement, nor any (Dead on Arrival) letter and felt so harassed and cheated by the respondents. From all these above facts and depressing scenario, the complainant has suffered from such a mental agony, harassment and felt cheated on by the OPs and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a compensation of Rs.1,41,999/- alongwith interest @ 12% on account of the damages, mental torture, agony and loss suffered by the complainant and Rs.30,000/- as litigation expenses
2. Notice of the complaint was given to the OPs, but OP No.2 refused to receive the notice and ultimately OP No.2 was proceeded against exparte and on the other hand, the OP No.3 did not appear despite service and ultimately OP No.3 also proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the complaint under reply is not maintainable as the complainant has got no cause of action at all U/s. Section 86 of the Act gives immunity to this OP and no relief can be sought against the answering OP. It is further averred that the complaint is liable to be dismissed as the complainant has not impleaded and arrayed as OP, the manufacturing brand of the complained product i.e. M/s Best IT World (India) Pvt. Ltd. owner of the brand iBall in the present complaint while all the allegations in the complaint are in the shape of pointing out a manufacturing defect in the product and the subsequent non-repair thereof by the service center of manufacturing brand at Jalandhar. As is apparent from the records of correspondence produced by the complainant along with complaint, the complainant has been in touch with the manufacturing brand and has been having a series of correspondence regarding the alleged defects in the product and as advised by the manufacturing brand, had approached its service center, the OP No.2. So the consumer dispute if any is there, it is between the complainant and the manufacturing brand. It is further averred that the liability if any for the alleged defects in the product is of the manufacturing brand alone and not of the seller. Under section 86 Consumer Protection Act, answering OP cannot be held liable for the manufacturing defects alleged by the complainant in the sold product. It is further averred that from the records of correspondence produced by the complainant, it is clear from the e-mail dated 03.02.2021 that the manufacturing brand had informed after inspection of the complained product by its service center, the manufacturing brand had informed that the tablets sim slot has been physically damaged as such the product was to be considered as out of warranty and repairable on chargeable basis. The same was duly informed to the complainant by the answering OP. It is further averred that the complainant has concealed vital facts from this Commission and had manipulated certain other facts. As is clear from the correspondence produced by the complainant, the service center had reported that the customer or his representative had submitted the tablet and he was apprised about the repairs to be done and the cost of such repairs and a job sheet was also prepared regarding the cost of such repairs. The complainant seems to have manipulated the facts of the service center having written ‘New Replacement’ on the visiting card. As such the complainant has not come to this commission with clean hands and is not entitled to any relief under The Consumer Protection Act. It is further averred that the complainant himself admits introduction of a third person (of his cousin) having been handed over the possession of the product and the product having been in custody of the third party might have been damaged during that period. It is further averred that the answering OP is not guilty of any deficiency in service or of supplying any defective goods as the OP has taken care of all the aspects it out to have and has co-operated with the complainant whenever he approached the answering OP by mail or otherwise. The answering OP has done all that was possible on its behalf by raising the matter with the manufacturing brand as the complaint by the complainant and pursuing the same till its logical conclusion. As such, no deficiency in service can be made out against the answering OP. On merits, the factum with regard to purchasing the Tablet by the complainant 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, the same may be dismissed.
3. Rejoinder not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.
6. The complainant has proved on record the advertisement of the product as ‘iBall Moviez’ featuring as 25.5 cm (10.1 inch) Tablet 2 GB, 32 GB, Gold iT-KSA0003 Ex.C-1. The complainant has alleged that he had booked an order for the same on 17.01.2021 through OPs and on 20.01.2021, the order was shipped to the complainant’s residence. He has also proved on record the tracking detail of the order Ex.C-2, transaction history of the order Ex.C-3, tax invoice/bill Ex.C-5, vide which it is proved that he has purchased the Tablet through Reliance Digital i.e. OP No.1 for Rs.11,999/-. The complainant has alleged that after receiving the order when he opened the product and plugged the same to the charging, after 3-4 hours, he found that the product was not showing any display/battery status on the screen. He waited for 8 hours and again the status of the Tablet was same. He received the product on 20.01.2021 and on 21.01.2021 in the morning at 03:38 AM, he dropped an email to the OPs. He has made a call also and he has proved on record the call details Ex.C-4. He has proved number of emails sent to the OP which is consisting of the pages from 37 to 73 pages Ex.C-6. After receiving the email, the complainant has alleged that the OPs sent an email to contact the OP No.2, but when he contacted the OP No.2, they did not cooperate and asked him to receive the product (dead on arrival next day). He has referred Ex.C-7 and submitted that after 15 days, they handed over an estimate of Rs.5864/- for repairing the Tablet, which include the display and sim slot damaged. The complainant has also proved on record the photographs of the Tablet Ex.C-8 and Ex.C-9. He has alleged the deficiency in service and unfair trade practice on the part of the OPs as they have sent him a defective piece to the complainant. More so, instead of redressing his problem they have demanded Rs.5864/- for repairing the same for no fault of the complainant.
7. The counsel for OP No.1 has submitted that OP No.1 has just forwarded the complaint to the manufacturing brand and the complainant was advised to approach the service centre of the manufacturing brand, which he did. He has referred the certificate and submitted that there is no endorsement on the certificate dead on arrival. So, it cannot be said that the product was defective at the time when the same was received. The product was physically damaged. The matter is between the complainant and the OP No.2. The OP No.1 is not liable as the complaint is regarding the manufacturing defect in the product and if it was so, then it is the fault of the manufacturer and not the OP No.1 He has sought the exemption under Section 86 of the Consumer Protection Act.
8. Perusal of the documents filed and proved by the complainant show that the product was advertised by the OP No.1 and the delivery was also to be made by the OP No.1 as per the document Ex.C-1, additional services and warranties was also offered by the OP No.1 as per Ex.C-1 and it was one year manufacturer warranty. The specifications and details were also described by the OP No.1. The order was placed through OP No.1. The product was sent by the OP No.1 as per Ex.C-3 the transaction history. The Invoice has also been issued by the Reliance Digital i.e. OP No.1. This clearly shows that throughout till the sending of the product, the transaction and the packaging etc. was done by the OP No.1. The exemption of Section-86 of Consumer Protection Act, 2019 is not available to the complainant as he has made an express warranty of a product and the product has been sold by him. Perusal of the Invoice Ex.C-5, nowhere shows the name of the manufacturer and the exemption of Section-86 is not available if the product has been sold by the product seller and the identity of product manufacturer of such product is not known. Section-86 of Consumer Protection Act reads as under:-
A product seller, who is not a product manufacturer, shall be liable in a product liability action, if—
(a) he has exercised substantial control over the designing, testing, manufacturing, packaging or labelling of a product that caused harm; or
(b) he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or
(c) he has made an express warranty of a product independent of any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or
(d) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot be enforced against him; or
(e) he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.
Perusal of Ex.C-6 shows that on 21.01.2021 at 03:38 AM, the complainant has dropped an email to the OP No.1 mentioning and informing about the defect, he has faced and has received the reply also. In the email dated 22.07.2021, the complainant has specifically mentioned that the faulty product was issued by the OP No.1 and as per the suggestion given by the OP No.1, the complainant has visited the Mahendru Telecom, Jalandhar. The emails sent by the complainant alongwith the photographs of the product clearly show that the product was of very poor quality and was defective on the very first day when the same was received by the complainant. The OP No.2 is service centre of iBall service centre and the name of the manufacture has not been mentioned anywhere even in the reply to the emails. Perusal of the Ex.C-7 shows that the warranty status has been mentioned as out warranty and physical condition has been mentioned as liquid damage, but how this damage occurred on the same day without using the product is not explained by the OP No.1 when he received the email regarding the faulty product after few hours of the receipt of the product by the complainant. Therefore, the contention of OP No.1 that as per Section-86 of Consumer Protection Act, he is not liable, is not tenable. This is clear cut deficiency in service as well as unfair trade practice on the part of the OP No.1.
9. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP No.1 is directed to refund the amount of Tablet i.e. Rs.11,999/- to the complainant with interest @ 6% per annum from the date of purchasing till its realization. Further, OP No.1 is directed to pay a compensation, to the tune of Rs.5000/- for causing mental tension and harassment to the complainant and Rs.4000/- as litigation expenses. The entire compliance be made within 45 days 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.
10. 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 Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
21.04.2023 Member Member President
