Punjab

Faridkot

CC/15/21

Navdeep Singh - Complainant(s)

Versus

Sachin Bansal - Opp.Party(s)

Sandeep Handa

08 Jul 2015

ORDER

      DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        21

Date of Institution :  5.02.2015

Date of Decision :    8.07.2015

 

Navdeep Singh s/o Sukhmander Singh, r/o Mohalla Kashmiryan, Old City, Near Kashmiriyan Dharamshala, Ward 8 Kotkapura, Faridkot.

   .....Complainant

Versus

1. Sachin Bansal, C E O cum owner Flipkart.com. Ist Floor No. 444/C, 1^st A Cross 12^th Main 4^th block, Opposite BSNL Telephone Exchange, Koramangla, Bangaluru Banglore, 560034 (Karnatka) India.

2. M D Flipkart.com Flipkart corporate office, shop no. 310/311, C wing, classique Centre, Off Mahakali cave road, Andheri East, Mumbai. 400093.

3. WS Retail Service Pvt Ltd, Warehouse Address, No. 42/1 & 43, Kacherkanahalli village, Jadigenahalli Hobli, Hoskote Taluk, Bangalore, (Karnatka) India, 5600067.

4. C E O, Motorola India Head Office, Motorola Excellence Centre 415/2, Mehrauli, Gurgaon Road, near Maharana Partap Chowk, Sector 14, Gurgaon (Haryana) India.

5. Newrays Enterprises, SCO No. 11, Khukhran Complex, Krishna Nagar near Adarash Nagar Gurudwara, Kanal Road, Adj. Khaira Place, Jallandhar 144002.

                                        ....Opposite Parties(Ops)

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President.

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

   Present:       Sh Sandeep Handa,  Ld Counsel for complainant,

    Sh Vipan Tayal, Ld Counsel for OP-1 to 3,

    OP-4 & 5 Exparte.

    

   (Ajit Aggarwal , President)

                                                Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to replace the mobile phone and for also directing Ops to pay Rs 1,00,000/- as compensation for mental agony and harassment etc and Rs.25,000/-for litigation expenses.

   2                                          Briefly stated, the case of the complainant is that on 15.10.2014, through the website of OP-1, complainant placed an order for purchasing one mobile phone of Moto G (2^nd Gen) worth Rs 12,999/-of Motorola Company and received e-mail with thanks from OP-1 for placing order. On 16.10.2014, complainant received another e-mail from Op-1 that he will receive his order by 30.10.2014 and on 25.10.2014, complainant got the mobile phone and also received bill through on line and paid the full amount of Rs 12,999/- to delivery man as the order was under cash on delivery scheme. Said mobile phone was dual sim and complainant used that mobile by putting one sim in sim slot no. 1 and it worked smoothly for some days with single sim, but after about 10 days, when complainant put second sim in the slot no. 2 of mobile phone, complainant noted that 2^nd sim slot of mobile phone was not working. Complainant complained about this fact on toll free no. of OP-1, who listened his problem and assured to resolve the same within two days and thereafter, complainant called many times on toll free number of OP-1 and heard the same reply, but in the meantime, complainant received e-mails dt 12.11.2014, 15.11.2014, 21.11.2014, 23.11.2014, 25.11.2014 and 11.12.2014, wherein assurance for resolving the problem was given to him and in these e-mails, OPs have clearly admitted the claim of complainant and e-mail dt 25.11.2014 reveals the telephonic conversation between complainant and OP-1. After being harassed by Op-1, complainant again called on toll free number of OP-1, where Customer Care Executive of OP-1 asked complainant to contact Motorola Service Centre on toll free no of OP-1, complainant called on the same number and they gave the number of one Mani of Jallandhar Mototrola Service Centre. Complainant visited the Bathinda Motorola Service Centre of OPs, where he was  entrusted for replacement of mobile, but they did not replace his mobile. Thereafter, complainant called the person Mani of                    OP-5, who asked to give the mobile phone at their Service Centre. Complainant gave his mobile phone to OP-5 on 21.01.2015, but Op-5 is not returning his mobile phone.   Complainant has doubt that all the OPs in connivance with each other are harassing the complainant. On 16.12.2014 and 3.01.2015, complainant got e-mails from Op-4 for replacement of mobile phone, but actually his phone was not replaced or returned by OPs, and all this amounts to deficiency in service and trade mal practice on the part of Ops and has caused much inconvenience, harassment and mental agony to complainant. The Complainant has prayed for seeking direction to Ops to replace the mobile phone and to  pay Rs 1,00,000/- as compensation for mental agony and harassment etc and to pay Rs 25,000/-as cost of litigation. Hence, the complaint.

   3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 10.02.2015, complaint was admitted and notice was ordered to be issued to the opposite parties.

   4.                                                                   On receipt of the notice, OP-1 and 2 filed reply taking preliminary objections that OP-1 and 2 operates its trading facility platform over the internet under the domain name www.flipkart.com and has developed a website under the said name and is engaged in the business of online marketplace, providing platform.technology and  other mechanism/services to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers, enables dealing in various multiple categories of goods including but not limited to movies, music, games, mobiles, cameras, computers, apparels, footwear, healthcare and personal products, home appliances and electronics, etc. It is submitted that complainant is not the consumer of answering Ops under the provisions of Consumer Protection Act and complainant has wrongly arrayed them as OPs in this complaint and there is no privity of contract between complainant and OP-1 and 2 and therefore , complaint against them is liable to be dismissed in limine. OP-1 and 2 submitted that  complainant purchased Moto G mobile phone from OP-3 for Rs 12,999/-, but their involvement in the entire transaction is very limited as they provide only the online platform and nothing beyond this because they do not sell any  product on their own and there is no dispute between complainant and answering OPs as contemplated under C P Act and therefore, complaint is liable to be dismissed. However, on merits, answering OPs have denied all the allegations levelled by complainant being wrong and incorrect and asserted that OP-1 and 2 are mere marketplace and product was sold by OP-3 and OP-1 and 2 are neither the manufacturer nor the seller of the product and hence, they can not be held responsible for any alleged defect with  the produce. Moreover, they do not have knowledge to ascertain if the alleged defect in the product are due to inherent manufacturing defects or due to customer abuse and dispute regarding any alleged defect with the product can be resolved by OP-4 and its authorized Service Centre. OP-1 and 2 had escalated the grievance of complainant to seller and upon confirmation from seller, the complainant was informed that the Op-3 was willing to refund the amount paid for the product. Complainant was further requested to share the duly filled declaration form for processing refund but the complainant has till date not shared the said declaration form with the details required to process the refund. Answering OPs have denied any deficiency in service on their part and prayed for dismissal of complaint with costs.

    5                                   Op-3 also filed reply taking preliminary objections that OP-3 is incorporated under the Companies Act 1956 and is an online reseller and one of the registered sellers on the marketplace and grievance of complainant should have been only against Op-4 i.e manufacturer as product carries Manufacturer’s warranty and involvement of OP-3 in entire transaction is very limited. However, on merits, Op-3 reiterated the same pleadings taken by Op-1 and 2 in reply and asserted that no cause of action arises against answering OP and complaint filed by complainant is wrong and incorrect and complainant is not entitled to any relief and there is no deficiency in service on the part of answering opposite party. All other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against the answering opposite party.

   6                                           Despite service of notice to the opposite party No.4 and 5 through registered post, no one appeared on their behalf, so, the opposite party No. 4 and 5 were proceeded against exparte vide order dt 10.04.2015 of this Forum.

   7                                                  Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1/A and documents Ex C-1 to C-19 and then, closed the evidence.

   8                                                                     In order to rebut the evidence of the complainant, Counsel for OP-1 to 3 tendered in evidence affidavit of Panduranga Acharaya as Ex OP-1,2/1 and affidavit of Anushree Saxena as Ex OP-3/2 and closed the evidence on behalf of OP-1 to 3.

   9                                          The ld Counsel for complainant argued that on 15.10.2014, complainant purchased a mobile set manufactured by OP-4 model Moto G (2^nd Gen) online through website of OP-1 for total price of Rs 12,999/-. On 16.10.2014, he received an e-mail from OP-1 that his order is shipped and will be received by him by 30.10.2014. On 25.10.2014, complainant received the mobile phone through courier and a bill of mobile phone issued by OP-3 is also received by him through e-mail. Complainant paid the entire amount of Rs 12,999/-i.e the price of mobile phone at the time of delivery.  The mobile phone was dual sim. Initially, complainant used the mobile by putting one sim in slot no. 1 and mobile phone worked smoothly with single sim. After some days, he put second sim in slot no. 2 and found that the second slot of the phone is not working. Complainant approached OP-1 through toll free helpline number and Executive of OP-1 assured complainant that his problem would be resolved within 2 days but complaint of the complainant was not resolved. Complainant called many times on the toll free number of OP-1 and received the same reply from them. Complainant received e-mail from OP-1assuring him that his complaint will be resolved within some time. Complainant produced copy of the bill Ex C-1 and e-mails received from OP-1 as Ex C-8 to 15. Executive of OP-1 advised complainant to contact the Service Centre of the OP-4 on their toll free number. He called the Service Centre number of OP-4 and they gave number of one Mani of Jallandhar. Complainant visited the Service Centre of OP-4 at Bathinda. They also assured the complainant to replace the mobile phone but they did not replace the mobile phone. After  that complainant called the person Mani, who told him to give the mobile phone at their Service Centre, which is OP-5. Complainant gave his phone to OP-5, who assured him to replace the mobile phone and issued a job sheet, which is Ex C-19. On 23.01.2015, complainant received an e-mail from OP-4 that his phone is replaced and the same is Ex C-17, but his phone is neither replaced nor his old phone is returned to him after repair till today by the OPs. This act of the OPs amounts to deficiency in service and unfair trade practice on the part of OPs. Complainant has prayed for compensation and has also prayed for accepting the complaint.

   10                                            To controvert the arguments of complainant, ld counsel for OP-1 to 3 argued that the OP-1 and 2 are operating their trade facility platform over the internet and are engaged in the online business of all types of products. The complainant is not the consumer of OPs. OP-1 and 2 have nothing to do with the mobile phone and its warranty. They do not sell any product at their own. Their services are similar to shopping mall where number of shops are rented to various sellers and in case of any issues with the goods sold by such shop owners in the shopping mall, it is the shop owner who is responsible for the deficiency in service and not the shopping mall. They are not involved in entire transaction except for providing the platform and the contract is only between the seller and the complainant and they would be held liable for any liability owing to such matter/contract. OP-3 is only a reseller of the products manufactures by the other Companies. OP-3 is not the manufacturer of the mobile phone. Op-4 is the manufacturer of the product and the guarantee and warranty given on the product is given by the manufacturer and the manufacturer is responsible for the same. Reseller is not responsible for any guarantee and warranty given by the manufacturer on the product.  It is only the manufacturer who is responsible for the manufacturing defect and warranty of the product. Moreover, the complainant gave his mobile phone for inspection and repair to the OP-5, who is Service Centre of the OP-4. OP-1 to 3 have no knowledge regarding any defect in the said phone as they never inspected the mobile phone. Mobile phone has to be replaced by OP-4 and 5. They have no liability to replace the phone and there is no deficiency in service on their part and requested for dismissal of present complaint against them.

   11                                    We have heard the arguments advanced by ld counsel for all the parties and have carefully gone through the file and evidence led by the parties. It is admitted case that complainant purchased the mobile phone in question through OP-1 to 3, which is manufactured by Op-4 and paid its price. It is also proved from the e-mails Ex C-8 to 17 that there is a manufacturing defect in the said mobile phone. Complainant gave his mobile phone to Op-5 vide job sheet dt 21.01.2015 Ex C-19 for inspection by OP-4 and 5, who are manufacturer of the said mobile phone. Vide e-mail dt 21.01.2015 Ex C-17, OP-4 admitted that the said mobile phone had defect and it is replaced but the complainant has not received the mobile phone after replacement from Op-4 and 5. Therefore, it is observed that there is a clear cut deficiency in service and unfair trade practice on the part of OP-4 and 5 and hence, the present complaint is allowed against Op-4 and 5. OP-4 and OP-5 are ordered to deliver a new mobile phone of same model with fresh warranty to the complainant within one month of the receipt of the copy of this order. Op-4 and 5 are also directed to pay Rs 6,000/-to complainant as compensation for harassment and mental agony suffered by him besides Rs 3,000/-as litigation expenses. Compliance of this order be made within prescribed timed, failing which complainant shall be entitled to proceed under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

   Dated: 8.07.2015

   Member                Member            President (Parampal Kaur)         (P Singla)             (Ajit Aggarwal)