BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 281 of 2017
Date of Institution : 30.10.2017
Date of Decision : 16.10.2018.
Shyam Lal aged about 36 years son of Shri Chiman Lal resident of Dhani Teja Singh Near Government Women Polytechnic College Hostel, Ward no.26, Sirsa, Tehsil and District Sirsa C/o Dera Jagmalwali, Village Dera Jagmalwali, Mandi Kalanwali District Sirsa-125201.
……Complainant.
Versus.
1. Sane Retails Pvt. Ltd., Rectangle No.180 Survey No.13, 14/1, 17/2, 18, 23/1, 24/1, 26 4th Kilometer Stone, Bilaspur Pataudi Road, Village Nurpur, Gurgaon, Haryana-123503.
2. Flipkart Internet Pvt. Ltd., Vaishnavi Summit, Ground Floor, 7th Main, 80 Feet Road, 3rd Block, Koramangala, Begaluru-560034 Karnataka, India.
3. Flipkart Internet Pvt. Ltd. B-Block, Satita Vihar, Delhi-110076(Sector 25, Badarpur)
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. ISSAM SINGH SAGWAL …… MEMBER.
Present: Sh. Sandeep Khattar, Advocate for the complainant.
Sh. J.S. Sindu, Advocate for opposite parties.
ORDER
The case of the complainant in brief is that on 22.9.2017 vide order ID No.OD110295160888987000, the complainant placed an order for purchase of a Samsung Galaxy on Nxt (Gold 64 GB) Mobile through online service from the ops no.2 and 3 and as per the order placed by the complainant, the said product was delivered to him on 27.09.2017 through the courier service of ECom Express Service Pvt. Ltd. having its office at Desu Road, Ram Bagh, Near Janta Hospital, Kalanwali District Sirsa and a sum of Rs.11610/- were charged directly from the bank account of the complainant on the day of placing the order i.e. on 22.09.2017. An Invoice dated 24.09.2017 was also issued to the complainant in this regard. It is further averred that at the time of delivery of the said mobile to the complainant, the complainant opened the delivery box/parcel in the presence of the delivery boy and to the surprise of the complainant, the display of the ordered mobile was found already broken. The complainant asked the delivery boy to take back the said mobile but he openly refused to do so saying that his duty is only to give the delivery of the ordered parcel and nothing more than that. He further misbehaved with the complainant because he was well aware about the fact that the amount of the price of the mobile has already been charged directly from the bank account of the complainant on the day of placing of the order and the complainant was left with no other option but to take the delivery of the broken mobile. Thereafter, next day i.e. 28.09.2017 the complainant made a complaint to the ops no.2 and 3 through online vide complaint no.11201034191973775422. He further made a complaint in this regard vide complaint no.11101034043746554415 to the ops and brought this fact to the notice of the ops and requested them to take back the delivery of the mobile and to refund the amount charged or to send the fresh mobile to him. In response to the same, the ops promised the complainant to collect back the delivery of the broken mobile from the complainant at their own. But instead of collecting back the delivery of the broken mobile the complaints made by the complainant were cancelled by the ops no.2 and 3 without disclosing any cogent reason behind the same. It is further averred that thereafter the complainant kept on making complaints to the ops no.2 and 3 on 30.9.2017, 11.10.2017, 17.10.2017 and 26.10.2017 through online but inspite of repeated complaints made by the complainant, neither the delivery of the mobile was taken back by them nor the price of the mobile was refunded to his account nor the fresh mobile was sent to the complainant. The mobile sent by the ops to the complainant through courier is still lying useless with the complainant. That such act and conduct on the part of ops clearly amounts to deficiency in service and unfair trade practice. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement by stating that the present complaint has already become anfractuous as soon as the replacement of the alleged damaged product was received by the complainant on 08.11.2017. Thus, the complainant does not have any grievance unresolved and this present complaint is liable to be dismissed straight away. The Op no.1 is carrying on the business of sale of goods manufactured/produced by others. The op no.1 is a registered seller on the website “flipcart.com” and sells products of others through the website. The op no.1 has acquired good market reputation for its range of products offered. It is pertinent to mention here that the op no.1 is not engaged in sale of any goods manufactured or produced by its own. The op no.1 is engaged in selling of goods manufactured and produced by other manufacturers and op no.1 acts as mere reseller of such manufactured goods. It is further submitted that the products sold by the op no.1 are resold by the op no.1 without even unboxing the package. Thus, the products are sold in the same condition as it is received from the manufacturer of the product. For the same reason, the op no.1 provides 10 days return and replacement offer to the buyers. If the buyer encounters any issue with the product within these 10 days replacement offer period from the date of purchase and he raises his grievance within the 10 days replacement policy, the seller duly provides return or replacement facility to the buyers. In the present complaint as well, the buyer (complainant) had raised his grievance with the product within the policy period and thus, his request had duly been accepted and entertained by the seller by providing replacement to the complainant on 8.11.2017. The op no.1 has delivered the product in a sealed box to the complainant(as it was received from the manufacturer/brand) within the time specified in the order without unboxing the product. The op no.1 had received the alleged grievance of the complainant through op no.2 and timely acting upon the request of the complainant, the op no.1 carried necessary investigation into complainant’s grievance and after being completely satisfied, the op no.1 duly accepted the replacement request of the complainant and supplied replacement of the product on 8.11.2017. It is further submitted that replacement of the product has already been provided to the complainant on 8.11.2017 and thus, the very question of product lying with the complainant or the complainant still making request to the op no.1 does not arise at all. Thus the complainant does not have any cause of action against the answering op no.1.
3. Ops no.2 &3 have also filed separate written statement and denied all the facts of the complaint. It is submitted that the present complaint pertains to alleged damage in display of the product found upon delivery. However, the fact needs to be recorded here that replacement of the product has already been provided to the complainant on 8.11.2017 and thus, the complainant is left with no grievance to continue this complaint. It is further submitted that the op no.2, Flipkart Internet Private Limitted is a company duly registered under the provisions of the Companies Act, 1956 and having its registered office at Vaishnavi Summit, Ground Floor, 7th Main, 80 Feet Road 3rd Block, Koramangla Industrial Layout, Bangalore 560034, Karnataka. The company is engaged, among others, in providing trading/selling facility over the internet through its website 4. The parties then led their respective evidence by way of affidavits and documents.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. During the course of arguments, learned counsel for complainant has conceded to the fact that he has received replacement of the mobile in question on 8.11.2017 from the ops after filing of the present complaint but however learned counsel for complainant has contended that replacement was given after 40 days though they were supposed to give replacement of the same within 10 days of the delivery of the mobile. Further more, they have caused harassment and humiliation to the complainant and he has also suffered costs of litigation.
7. On the other hand, learned counsel for ops has contended that after receiving due intimation and during reasonable time, process of the replacement was made and thereafter replacement was given. There is no delay on the part of ops in giving replacement.
8. We have considered the rival contentions of the parties. It is undisputed fact between the parties that complainant has purchased mobile through online by passing order on 22.9.2017 and the mobile was delivered on 27.9.2017 and on the same day the complainant found that the mobile is defective. The complainant informed to the ops regarding supply of defective mobile with no lapse of time but however as per plea of the ops they took certain days in order to process the replacement and replacement was given on 8.11.2017. It is also admitted fact that thereafter there is no complaint of the complainant regarding working of the mobile set.
9. The only claim of the complainant is qua compensation qua pain and suffering and costs of litigation. No doubt, the ops were supposed to give replacement within 10 days, however, same was supplied after 40 days as such there is deficiency in service on the part of ops. It is undisputed fact between the parties that present complaint was filed by complainant on 30.10.2017 whereas replacement was given on 8.11.2017 after filing of the present complaint. Had the ops supplied mobile well in time, the complainant could avoid the expenses of litigation. So, the complainant is entitled to compensation and litigation expenses. However, the claim of complainant qua replacement of the mobile has become anfractuous as the ops have duly replaced the mobile in question and as such same is declined.
10. In view of the above, we partly allow the present complaint and direct the opposite parties to pay a sum of Rs.3000/- as compensation for harassment to the complainant. We also direct the ops to further pay a sum of Rs.2000/- as litigation expenses to the complainant. The ops are liable to comply with this order within a period of 30 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest on the total amount of Rs.5000/- at the rate of 9% per annum from the date of order till actual realization. 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:16.10.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
