Delhi

East Delhi

cc/419/2013

anil kr. - Complainant(s)

Versus

SYMPHONEY - Opp.Party(s)

27 Feb 2018

ORDER

                 DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

                  CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                  

                                                                                                  Consumer complaint no          419 /2013

                                                                                                  Date of Institution                  20/04/2013

                                                                                                  Order Reserved on                 27/02/2018

                                                                                                  Date of Order                          28/02/2018   

                                                                                                        

In matter of

Mr. Anil Kumar, adult 

R/o-C-27, Pandav Nagar, Delhi 110091….……………….……..…………….Complainant

                                                                  

                                                                     Vs

 

1-M/s Symphony Ltd.

“Samya” Bekari Circle,  

Navrangpura, Ahmedabad, Guj. 380014  

 

2-M/s MNM Trading Solutions Pvt Ltd.

Star CJ Network Franchise

Vill. - Samka Jamalpur, Pataudi Road,

Tah.- Patuadi, Gurgaon Haryana- 123503

 

3-M/s Star CJ Network India Pvt Ltd.

6^th Floor, Star CJ Plaza

Dr DB Gupta Marg, Grant Road East,

Mumbai, Maharashtra, 400007 …………..………………...……………………Opponents

 

Complainant’s Advo.………………………Natwar Rai

Opponent 1 & 2.…………………………….Nemo

Opponent’3 Advo…………………………..Manoj Kumar & Asso. & Mr Abhay Kumar- AR

 

Quorum          Sh Sukhdev Singh      President

                         Dr P N Tiwari               Member                                                                                                   

                         Mrs Harpreet Kaur     Member

 

Order by Dr P N Tiwari  Member 

 

Brief Facts of the case   

Complainant purchased one Symphony Air Cooler model DiET22EROi on 22/05/2012 manufactured by OP1 through online portal OP3/ Star CJ Network for a sum of Rs 6490/-and same was delivered through OP2/ MNM Trading Solutions vide retail invoice no. 201205250942 (Ex CW1/1). It had been stated that the said air cooler worked well for a month and then stopped working, so complaint was lodged to OP1/manufacturer of the cooler on 22/06/2012 vide complaint no NSSA-21F 12038. Complainant received SMS from OP1 on 25/06/2012 that the said complaint had been resolved.  The said cooler was neither checked by service engineer nor replaced the cooler, but OP1 provided two mobile numbers of for further assistance for rectifying his grievances. Despite of repeated calling on the numbers no one attended the complaint  

Complainant purchased a new cooler for his use and sent a legal notice to OPs on 13/08/2012 (Ex CW1/2). OP3/ Symphony replied legal notice regretting for any manufacturing defects in their products (Ex CW1/3), but promised to get resolve his defect, if any. When no one attended to rectify the defects, so finally filed this complaint claimed for refund of the cost of the cooler Rs 6490/-and the cost of new cooler purchased for Rs 9000/-with 24% interest and compensation of Rs 50,000/- for harassment and mental agony and Rs 50,000/-as litigation charges.  

After notices, OP 1 did not file written statement despite of serving number of notices. OP3/ M/s Star CJ Network India submitted written statement putting deficiency in services by OP2 /MNM Trading Solutions. All the contents of complaint pertaining to OP3 were denied as wrong and incorrect. It was stated that OP2 was a “third party retail sellers” (Seller) and all products including schemes and offers on specific products to be offered by their end and orders to be fulfilled by the Sellers/OP2. So, OP3 was no way in or responsible for fulfillment of orders that may be placed by Buyers.

Third party sellers were the sole responsible for any orders placed by the buyers on OP3 portal and if any product had defects at the time of delivery should had to be intimated to the Seller within two days for replacement or refund in case of a refund policy was present. OP3 being a online portal, booking done for various products from number of manufacturing units under strict quality control and all the products whose order was placed on their website, was to be directed to the third party sellers. It was also submitted that all sold items carry standard one year warranty and any problem/defect occur in sold products, after sale warranty and services had to be provided by the “Seller”/ here OP2.

So, OP3 being an online portal, does not sell or provide any warranty of any products. Though every advertised product carry standard warranty of one year from the date of delivery of the product and such warranty was provided by the manufacturer of the product. Seller as third party provide after sale services whenever complaints would arise. So, OP3 regretted to provide service as they have no role in providing services in after sale goods.  

 

Complainant submitted rejoinder and denied all the replies given by OP3. It was stated that the product as cooler had manufacturing defect and OP3 was responsible for the defective goods supplied to him and all OPs were responsible for their act of negligence in supplying defective goods to him.  OP3 was responsible for making advertisement on their online channel and thus earning profit for others too.  As number of complaints were done to all OPs, but his grievance was not rectified.  Hence all OPs were jointly responsible for damages occurred to him. Complainant also filed his evidence on affidavit and reaffirmed himself on oath that all the facts and evidences were correct and true and all correct facts had been stated in his complaint. He had also submitted that due to deficient services of OPs a new cooler was purchased by him for a sum of Rs 9000/-(Ex CW1/4) with number of complaint made to OPs (Ex CW1/5).

 

OP3 also submitted their evidences on affidavit through Sh Abhay Sharma, Authorised Representative of OP3 and stated on oath that he was authorized to depose evidences on affidavit. It was stated that OP3 had engaged OP2 as a seller of different products online and all products orders received online were transferred to third party sellers who send ordered products to retail end customers and all schemes and offers were the discretion of third party seller for which OP3 had no role. Here in this case the product “Symphony” Air cooler was sold by OP2/MNM Trading Solutions Pvt Ltd. whose order was received online (www.starcj.com) from the complainant. So the said cooler was neither sold directly nor service was provided by OP3. All the services had to be provided by OP2 hence there was no contract of privity between complainant and OP3. It was also stated that no complaint was received within 2 days pertaining to manufacturing defect, deemed that the product was received in good working condition and if any defect or problem occurred OP2 was responsible to rectify the defects.  

 

Here complaints of complainant were received under ‘After Sale Service’ terms, so OP3 was nowhere involved and thus liability to provide service or refund remains with the domain of OP2 and OP1.  

OP3 had also submitted citations from NCDRC as Maruti Udhyog Ltd vs Avadh Kishore Singh & other, RP 677/2004 decided on 04/05/2009, where it was held that dealer was responsible for providing after sale services through their authorised workshop as their agent and not the manufacturer except had any manufacturing defect.

Here dealer was OP2/MNM Trading services who had to provide after sale services, but violated the agreement.   

Arguments were heard from both the party’s counsels at length and after file was perused, order was reserved.   

We have gone through all the facts and evidences on record. It was admitted by OP3 that the order of said air cooler was received online and was transferred to OP2 for delivery of the said product and the same was delivered too. OP1 had neither submitted written statement nor evidence despite of serving notices. But complainant had annexed reply of his legal notice sent to OP1/Symphony which was on record who has admitted that the said product was manufactured by them. Under manufacturing defect, they were liable to replace the parts or product otherwise under after sale services had to be provided by their authorised seller/OP2. Still it was admitted that their service engineer would visit and inspect the product. The complaints were received by OP2 pertaining to problem in cooler and product was under standard warranty tenure, so OP2 has violated the terms of ‘After Sale Services’ agreement between OP3.

There is no liability on OP3, but complaint has merit on the points mentioned below as—

Point 1- Defects occurred in warranty tenure and manufacturer/Symphony/OP1 had replied to Legal notice under point 13 & 14 that OP2 would rectify defects and if product had manufacturing defect, part/s would be replaced after proper inspection by their service engineer, but did not repair the cooler nor filed written statements or evidences till arguments.  

Point 2-OP2 was deficient in providing services to complainant under After Sale Service agreement with OP1.

Point 3- Complainant suffered harassment due to deficient services of OP2.

 

So we are of the opinion that complainant has succeeded in his case by proving deficiency of OP2 hence we pass the order as under—

1. OP2 shall rectify the defect/s within 30 days from receiving this order and shall hand over in good working condition to complainant with warranty of six month through OP1/Symphony from the date of handing cooler.
2. If order is not complied in stipulated duration, OP2 shall refund the cost of cooler with 6% interest from the date of order till realized.
3. We also award compensation Rs 2000/-for harassment with Rs 1000/-as litigation charges.
4. There shall be no order to cost.

The copy of this order be sent to the parties as per Regulation 18(1) of the Consumer Protection Regulation, 2005 (in short the CPR) and file be consigned to the Record Room under Regulation 20 of the CPR.

 

(Dr) P N Tiwari Member                                                                              Mrs Harpreet Kaur  Member                                                                            

                                                

                                                    Shri Sukhdev Singh President