Date of Filing: 25-02-2016 Date of Final Order: 17-04-2017
Smt. Runa Ganguly, Member.
The brief facts of the present case as can be gathered from the case record is that the Complainant being attracted with the lucrative advertisement by the O.P. No.1 & 2 purchased one Micromax Canvas Gold against consideration of Rs.15,940/- under one Invoice bearing No. B37CF/14-15/110192, dated 05/11/2014 through online from the O.P. No.2 for his personal use. The Complainant noticed within the warranty period that the said mobile set was not functioning properly with a problem “Power Does Not Switch On” for which the Complainant faced serious troubles and informed the matter to the O.P. No.1,2,3,4 & 5 over telephone and several time request for services were made and they advised the Complainant to meet with the Authorised Service Centre at Cooch Behar i.e. the O.P. No.6. Accordingly, the Complainant met with the O.P. No.6 and deposited the said handset on 04/11/2015 for repairing under proper receipt. The service centre did not acted like a service provider and elapsing so many dates failed to handover the mobile handset to the Complainant. The O.Ps supplied a defective handset to the Complainant for illegal profit that may be considered as unfair trade practice. The O.P. No.6 behaved badly with the Complainant and none of the O.Ps took any initiative to solve the dispute of the Complainant.
Thus, the act and conduct of the O.Ps certainly be termed as deficiency in service and the Complainant suffered from mental pain & agony for their act, for which the Complainant has filed the present complaint U/S 12 of the C.P. Act, 1986 praying for issuing direction upon the O.Ps to pay Rs.35,490/- in total.
The Notices were sent to all O.Ps. The O.P. No.1 appeared through their Ld. Adv. and contested the case. The O.P. No.2,3 & 4 did not turn up despite receiving the Notice for which this case proceeded with Ex-parte against these O.Ps. The O.P. No.5 was expunged from this case on the prayer of the Complainant.
The O.P. No.1 by filing W/V contested the case contending inter-alia that the O.P. No.1 continuing its business under the brand/trademark “Snapdeal” through its website i.e. www.snapdeal.com which is an online market place. In an online market place, consumer transactions are facilitated by online market place operator and then processed and delivered by the participating sellers. It is also averred that the O.P. No.1 only acts as an intermediary through its website and sell the product of various company all over India to the general public at large. This O.P does not directly or indirectly sells any products on its website, www.snapdeal.com rather, all the products on website are sold by third party sellers who avail of the online market place services provided by this O.P. The sellers directly issued Invoice to the customers for the products sold. The ultimate monetary benefit of such sale proceedings is the seller not the Opposite Party. Thus, this O.P cannot be held liable for any deficiency in service. The O.P. No.1 alleging that the manufacturing defect in Micromax mobile phone which was not sold to the Complainant by this O.P.
The further contention of the O.P. No.1 that if there is any manufacturing defect, the sole responsibility of the others O.Ps not the O.P. No.1. Further this O.P has not charged any amount from the Complainant for using the website for which the present Complainant is not a consumer of the O.P. No.1.
By putting all this, the O.P. No.1 prayed for dismissal of this case with exemplary cost and also praying for passing any other order as this Forum may deem fit and proper.
The O.P. No.6, Mahamaya Enterprise, Service Centre of Micromax, Cooch Behar appeared through the Ld. Adv. But did not turn up further to contest the case. Hence, this case was heard in Ex-parte against the O.P. No.6 also.
In the light of the contention of the both parties, the following moot points are necessarily come up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Heard the argument at a length as advance by the Ld. Adv. For the Complainant and the O.P. No.1. Perused the documents along with evidence on affidavit of the parties.
Point No.1.
It appears from the documents made available in the record that the Complainant purchased a Micromax mobile hand set from O.P. No. 2 i.e. Vardhaman Tele Marketing on payment of consideration Rs.15,490/-. This purchased was made through the O.P. No.1, Snapdeal, Jasper Infotech Pvt. Ltd. The Complainant hired service from the O.P. No. 6 for repairing his Mobile Hand Set within the warranty period. Thus, in our considered view, the Complainant is a bonafied “Consumer” of the O.Ps as per provision of section 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The complaint value of the present case is Rs.35,490/- which is far less than the prescribed limit. The O.P. No.6, the service provider of Micromax Company is carrying on its business within the territorial jurisdiction of this Forum. Thus, this Forum has sufficient jurisdiction to try this case.
Point No.3 & 4.
Undisputedly, the Complainant purchased a Micromax mobile handset from the O.P. No.2 through online Platform, Snapdeal, Jasper Infotech Pvt. Ltd. Against the payment of Rs.15,490/-.
The point of the dispute is that the said handset was not functioning properly and the dispute appears within the warranty period. The Complainant handed over the handset to the O.P. No.6 on 04/11/2015 for repairing but till filing the present case the O.P. No.6 did not return the alleged set in working condition.
It is the case of the O.P. No.1 that the O.P. No.1 only acts as an intermediary through its web interface. It does not directly or indirectly sells any products on its web site. The dispute of the present case in respect of manufacturing defect in Micromax mobile phone which was not sold by the O.P. No.1. In case of any manufacturing defect, it is the sole responsibility of seller or manufacturer and the authorized service centre to rectify the defect in the mobile set.
On perusal the documents made available in the record, it appears that the Complainant purchased one mobile phone of Micromax Company on payment of Rs.15,490/- from the O.P. No.2 (Annexure-2). The said set started problem within the warranty period. The reported problem as per Job Sheet (Annexure-1) is power does not switch on. The Complainant handed over the said set to the O.P. No.6 i.e. the service centre on 05/11/2015 i.e. one day before completion of warranty period.
The Complainant in his complaint petition as well as in evidence on affidavit clearly stated that till filing the present case, he did not receive the set in working condition from the O.P. No.6.
The handset in question has been purchased from the O.P. No.2. In this case, the O.P. No.2 is the seller and the O.P. No.6 is the service provider of Micromax Company. The O.P. No.3 & 4 are the manufacturing company of Micromax. None of the above O.Ps came forward before this Forum for contested the case which seems to us that they have nothing to challenge the allegation by the Complainant.
The responsibility to sell a defective handset goes to the seller, manufacturer as well as the service provider. For not rendering any service within the warranty period and by non-returning the set to the Complainant in working condition, the deficiency in service of the O.P. No.6 is squarely proved.
Besides, the manufacturing company and the seller did not bother to appear before this Forum. By supplying/selling disputed goods by the manufacturing company/seller, they adopted the arm of Unfair Trade Practice and are liable to give proper reliefs to the Complainant.
The O.P No.1 is only a platform, from where various goods of various companies have been placed/sold to the general public. The products of the companies are booked by using this platform through internet. It is not the case of the Complainant that the booked item has not been delivered to the Complainant. The allegation of the Complainant is the dispute in the handset that was not repaired by the service provider. Thus, in our considered opinion, the O.P. No.1 delivered the goods properly to the Complainant and it has no liability to remove the defect in the mobile handset in question and the O.P. No.1 has no deficiency in service. Furthermore, this case is not maintainable against the O.P. No.1.
The Complainant purchased the mobile handset from the O.P. No.2. He handed over the set to the Micromax Service Centre on 04/11/2015 but the Complainant did not get the said set with working condition till filing the case. The conduct of the O.P. No.6 is negligent which amounts to deficiency in service on his part. Except the O.P. No.1, the all O.Ps did not contest the case which seems that they have nothing to challenge the allegations made by the Complainant. The O.P. No.2 as a seller cannot evade his liability by selling a disputed set. Besides, the Micromax Company also liable to sort out the problem.
It is well settled that replacement of any goods is not the ultimate solution. Refund of the price of the disputed goods only will met the proper justice to avoid second bout of litigation.
In the light of foregoing discussion and consider the materials to its entirety, we have no hesitation to hold that the present case be dismissed against the O.P. No.1 and the O.P. No.2,3,4 & 6 are jointly liable for removing the dispute of the Complainant.
All the points have been decided in favour of the Complainant and the present complaint deserved to be allowed.
Hence,
Ordered,
That the present Case No. CC/12/2016 be and the same is allowed in Ex-parte against the O.P. No.2,3,4 & 6 and dismissed on contest against the O.P. No.1. The Complainant do get an amount of Rs.6,000/- as litigation cost from the O.P. No.2,3,4 & 6.
The O.P. No.2,3 & 4 are directed to refund Rs.15,490/- as the price value of the mobile set to the Complainant with compensation of Rs.5,000/-. The O.P. No.6 is hereby directed to make payment of Rs.5,000/- as compensation for harassment that caused mental pain and agony of the Complainant. The entire order shall be complied by the O.Ps jointly and/or severally within 45 days from the date of this order failing of which both O.Ps shall pay Rs.50/- for each day’s delay and the amount so accumulated will be deposited to the Consumer Legal Aid Account.
Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
