BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.

                                                                        Complaint Case no.219 of  2017              

                                                                        Date of Institution:     1.9.2017

                                                                        Date of Decision:     05.03.2018

Dilbag Singh (aged about 31 years) son of Sh. Om Parkash, C/o D.S. Service Centre, Dr. Amar Singh Sidhu Street, Near Parshuram Chowk, Sirsa- 125055.

                                                                                                     ………Complainant.

                                                Versus

1. Sachdeva Sales Corporation, authorized care centre of Lenova Mobile Company, Near Luxmi Sweets, M.C. Market, Sirsa.

2. Shreyash Retail Pvt. Ltd. E-29, Ring Road, South Extension Part-II, Opposite Park, New Delhi- 110049.

                              ……… Opposite parties.

            Complaint under Section 12 of the Consumer Protection Act, 1986.

Before:           SH. R.L.AHUJA ………………. PRESIDENT

SH. MOHINDER PAUL RATHEE ……MEMBER.

Present:          Sh. Ganesh Sethi, Advocate for complainant.

Sh. Rishab Goyal, Advocate for opposite party no.1.

Sh. R.P. Kaswan, Advocate for opposite party no.2.     

ORDER

                        In brief, the case of the complainant is that after carefully analyzing the features, assurances for claiming the best mobile, the complainant was keen to purchase mobile model Lenovo Vive K6Plus 3GB (16 Gold GB). Accordingly, the complainant purchased said mobile from Flipcart product selling platform on the internet. The opposite party no.2 being a manufacturer/ retailer dispatched the above said mobile set on the address of complainant through tax invoice No.#FOYQ103117-00388986 dated 6.10.2016 for the cost of Rs.7499/- including tax. The complainant paid the amount of Rs.7499/- and received the above mentioned mobile for his personal use. The manufacturing company claims one year guarantee/warrantee on their product/ mobile for smooth and comfortable functioning. That the complainant could not use the said mobile in a comfortable manner and after three months the mobile started to give trouble in functioning and hanging during use. The complainant in the middle of January, 2017 contacted with the authorized care centre and requested him for removal of the problems and to issue job card and op no.1 handed over the mobile set after installation of new software approved by the company and assured that all the complaints have been removed, so there is no need for any job sheet. It is further averred that in the month of June, 2017, the complainant faced new problem i.e. mike and touch screen. The op no.1 on 29.6.2017 received the set and sent the same to the manufacturing company, who had returned the same after removing complaints. The op no.1 before handing over the mobile to complainant obtained signatures for satisfaction on the job sheet. But surprisingly there were so many scratches on the main screen and body. The complainant immediately reported the matter to op no.1 who assured and advised to use the mobile set for few months and then within guarantee/ warrantee period he will replace the same with new one. The op no.1 told that as per the general practice during transportation this is a minor problem of scratches on the mobile phone. That the complainant after two months went to the premises of op no.1 with the complaint that the touch screen of his mobile has stopped working, even so many times the complainant could not attend his mobile despite ringing in his hand. The screen of mobile has become totally blank and is not working for dialing and attending the same. The op no.1 after carefully visualizing the mobile, replied that the mobile screen could be replaced after receiving charges. The complainant was shocked to hear such type of words from the mouth of official of op no.1. The op no.1 acting on behalf of op no.2 refused to attend the complaint of complainant during the guarantee/ warrantee period though as per the norms, the manufacturer/ retailer is legally bound to remove the complaint within guarantee/ warrantee period or to replace the same with new one. That the complainant felt handicapped without having mobile, so he had to purchase new mobile set with model Red Mi for a sum of Rs.10,999/-. That the ops have cause deficiency in service and unfair trade practice towards the complainant and have caused harassment to the complainant. Hence, this complaint.

2.                     On notice, opposite party no.1 appeared and filed written statement raising certain preliminary objections. It is submitted that on the perusal of the contents of the complaint, it is transpired that the complainant had purchased his mobile set from the manufacturing company  directly through online transaction. The answering op being authorized care centre holder of the company, immediately attended the complaint of complainant and after removing the same, the mobile set was handed over to him with full satisfaction. Thereafter, the complainant only approached with minor working problem which was removed without any time. The complainant never visited to the premises of answering op in regards to the complaint of his mobile set.

3.                     Opposite party no.2 in its separate reply asserted that 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 other manufacturers. In the instant case, the manufacturer of the mobile in question has not been impleaded as party though op no.1 is the authorized service centre appointed  by its manufacturer. It is further submitted that it transpires that the entire grievance of complainant relates to the defects in the product and after sale service and complainant satisfactory has used the product for about eight months. It is a settled proposition of law that the liability for defect in the product or after sales service issues rests with the manufacturer and its authorized service center only. It is an admitted fact that the product in question sold by answering op was manufactured by Lenovo India Pvt. Ltd. carrying manufacturer’s warranty as provided by the manufacturer under its terms and conditions and the manufacturer had appointed the service centre i.e. op no. 1 on which the answering op has no control. It is further submitted that answering op is merely a reseller registered on Flipart.com and the product bought by complainant carries warranty issued/ provided by the respective manufacturers against manufacturing defects subject to the terms and conditions determined by the manufacturers only. Irrespective of the warranty as provided by the manufacturer, as a goodwill gesture the answering op provides ten days return/ replacement to its customers i.e. if there is any  issue in the product within 10 days of the purchase which cannot be rectified, then the product will be replaced or amount is refunded. However, in the instant case, the complainant used the product in issue for more than eight months and did not approach the answering op at any point of time, which leads to the irrefutable conclusion that the product in question was working fine. It is further submitted that purchase of product through Flipkart.com from answering op is admitted. However, the role of answering op is only limited to reselling the products of various manufacturers and its role comes to the end as soon as the product ordered is delivered at the address provided by the customer. The answering op has delivered the product in a sealed box to the complainant as it was received from the manufacturer within the time specified in the order. Remaining contents of complaint are also denied.

4.                     The complainant produced his affidavit Ex.CW1/A and copy of invoice Ex.C1 and postal receipt Ex.C2. On the other hand, op no.1 produced affidavit Ex.RW1/A. Op no.2 did not produce any evidence.

5.                     We have heard learned counsel for the parties and have perused the case file carefully.

6.                     It is an admitted fact that complainant purchased the mobile in question through online service of opposite party no.2 for a sum of Rs.7499/- as is evident from copy of invoice dated 6.10.2016 Ex.C1 and mobile in question was delivered to the complainant at his address. The complainant has also furnished his affidavit Ex.CW1/A wherein he has reiterated all the contents of his complaint. Though, the complainant has not produced any reliable and cogent evidence to prove any manufacturing defect or evidence regarding scratches on the mobile after handing over to the op no.1 for repair but it is the legal obligation of the opposite party no.1 i.e. authorized care centre of the manufacturing company and also of the op no.2 i.e. service provider through whom the mobile in question was purchased by complainant to provide after sales services of repair etc. if the mobile in question suffers from any defect. No doubt, the manufacturer of the mobile in question has not been impleaded as a party but it is admission of the op no.2 that it is reseller of the product in question and therefore, op no.2 is equally responsible to provide after sales services as that of manufacturer.  Reliance in this regard can be placed on the observations of the Hon’ble National Commission in case titled as M.Subba Rao Prop. M/s. Sri Krishna Seeds Versus Avula Venkata Reddy passed in Appeal No.135/99 decided on 22.3.2007 wherein it was held that “However, learned counsel appearing on behalf of the petitioner submits that petitioner is a dealer and he is not personally liable for defective seeds and therefore order ought not to have been passed against him without joining manufacturing firm as party, namely, Hindustan Seeds Corporation. In our view, no doubt, the manufacturer would have been a proper party but at the same time the Petitioner is a person who has supplied and sold the seeds to the complainant, therefore, complaint was maintainable against the petitioner. If petitioner has any grievance, it is open to the petitioner to recover the amount ordered from the manufacturer by filing appropriate proceedings, but it cannot be said that the petitioner, a dealer, who has sold the seeds, is not liable.”

7.                     In view of the above, we allow the present complaint and direct the opposite parties to carry out necessary repairs in the mobile in question to make it defect free even by replacing parts, if any free of costs within a period of 30 days from the date of receipt of copy of this order. In case it is found that mobile in question is not repairable, then the ops shall be liable to replace the mobile with a new one of same make and model and in case it is found that mobile of same make and model is not available, then the ops shall be liable to refund the amount of Rs.7499/- i.e. price of mobile in question to the complainant within a further period of 15 days. Both the ops are also directed to pay a sum of Rs.1000/- as composite compensation and litigation expenses to the complainant. Both the ops are jointly and severally liable to comply with this order, failing which the complainant will be at liberty to initiate proceedings under Sections 25/27 of the Consumer Protection Act, 1986 against the ops. The complainant is directed to hand over the mobile in question to op no.1 well in time against proper receipt. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.   

Announced in open Forum.                                                                        President,

Dated:5.3.2018.                                            Member                     District Consumer Disputes

                                                                                                            Redressal Forum, Sirsa.