Order-12.

Date-26/05/2015.

Complainant Mrs. Puja Bhansali by filing this complaint has submitted that complainant purchased a mobile from Flipkart.com i.e. from op no.4 on 14.08.2013 vide order ID- 0D30814093080, Model No. Xolo Play T1000 (Black), bear IMEI/ Sl. No. 911319450029295 for a sum of Rs. 13,999/- and after purchase at the time of use, the said mobile had manufacturing defects from the day of purchasing and it was unable to use for having problems like noise while doing any phone call.  The said mobile was deposited to the op no.2 and thereafter a new mobile was received on 06.02.2014 in exchange with previous mobile almost after two months.

          But peculiar factor is that the said model of mobile – Xolo Play T1000 (Black), bear IMEI/ Sl. No. 911319450029295 also had manufacturing defect from the date of replacement as it was in the previous mobile and having more additional problems  and it was also found not usable.  Accordingly op no.2 advised that it was sent to Balaji Enterprise, Howrah, the service centre and for having same as well as the said problem was also reported since the replacement of the mobile.  But the problem of mobile was not resolved and so the complainant again got another mobile as per their list Technique Services i.e. op no.1.  But op no.1 gave assurance again that the mobile can be repaired whereas it is still in the hand of op no.1 without solving the problems.

          Complainant made repeated request to the op nos. 1 & 2 to resolve the problems of the mobile or otherwise return back the purchase amount.  But the whole process of repeated request was unsolved and in the meantime more than 13 months have been expired.  But one year manufacturer warranty and six months warranty for in the box accessories are totally expired with expectation for using the mobile and having no other alternative, complainant filed this complaint to CA & FBP, Kolkata Central Regional Office at Brabourne Road and due to non-payments of the op, the said authority directed the complainant to appear before Consumer Forum for redressal and complainant file this complaint for negligent and deficient manner of service and for harassing again and again and ultimately prayed for refunding the entire amount of Rs. 13,999/- including compensation for causing harassment, mental pain and agony.

          On the other hand op nos. 3 & 4 by filing written statement submitted that complainant is not a consumer of the answering op and C.P. Act 1986 does not lie and there is no privity of the contract between the complainant and op no.4.  But fact remains that complainant purchased the product from one online seller being op no.3 and the contract of sale is only between the op no.3 and complainant and so op no.4 cannot be liable for any liability.  But it has been admitted that first set of mobile was defective.  So, it was replaced and company extended warranty for another six months.  But op no.4 did not get any information about lodging a complaint before the CA & FBP, Kolkata Central Regional and op no.4 is neither the seller nor the manufacturer of this product.  The product was sold by the op no.3 not by op no.4 and no doubt the value of the mobile was Rs. 13,999/- whereas op no.3 threatened that he is not the manufacturer and has no knowledge or facility to ascertain whether the product in question is defective because of manufacturing defect or customer abuse and op no.3 is a online3 retail seller and one of the registered seller in the market place and their website is

          So, manufacturer shall have to solve this problem not the seller and he has submitted that for the defect in case of product or others dealer and retailer cannot be liable and for which the present complaint should be dismissed.

          Fact remains op no.1 Technique Service and op no.2 Lava International Ltd. even served notices but did not appear this Forum.  Accordingly the case is heard finally for dispose of.

                                                     Decision with reasons

          On overall evaluation of the complaint and written version including the documents made Annexure by the complainant, it is clear that on 14.08.2013 on payment of Rs. 13,999/- complainant purchased one Xolo Play T1000(Black), bear IMEI/ Sl. No. 911319450029295 mobile from WS Retail Services Ltd. and admitted fact is that on receipt of the same, subsequently the said set was found defective and ultimately it was replaced by the ops.  But again same defect and other problems are found that is noise of the speaker while doing any phone call and other problems and admitted position is that it was submitted to Balaji Enterprise, Howrah, but they also failed to do it and in fact op no.1 took the help of Balaji Enterprise, but they also failed to repair the same and handed over the same and truth is that the said set is in the custody of op no.1.

          But op no.1 or the company did not take such step and failed to remove the said defect in the said set.  Then complainant filed a prayer to the authority of the Technique Services and it is found that both the sets were repaired for seven times in total and subsequently it was found that it was out dated model.

          Most interesting factor is that mobile manufacturing company or the service provider or the seller have not taken any initiative to return the said set or to replace the set on second time.  So, in the circumstances, invariably all the ops are equally responsible for refund of the entire amount or by giving a new up dated set.

          But fact remains that the said set is out dated for which invariably ops are legally bound to pay Rs. 13,999/- to the complainant and further it is proved that complainant after purchase for last one year has been harassed and truth is that defective sets were sold and changed and even after replacing the same defects were found because the said set was out dated.  It is admitted by the op in their reply by e-mail.

          So, considering all the above facts, we are convinced to hold that complainant has suffered much for purchasing the mobile from the op for manufacturing defect and for not getting proper service and in the above circumstances, this complaint succeeds for negligence and deficiency on the part of the ops and for selling defective mobile to the present complainant.  So the present complainant is entitled to get a decree.

          Hence, it is

                                                             ORDERED

          That the complaint be and the same is allowed on contest against the op nos. 3 & 4 with a cost of Rs. 2,000/- and same is allowed against other op nos. 1 & 2 with a cost of Rs. 2,000/- each.

          Ops are jointly and severally refund the entire amount of Rs. 13,999/- (price money of the set) to the complainant within one month from the date of this order and shall have to pay compensation of Rs. 5,000/- for causing mental pain and harassment and suffering and for not rendering proper service and for selling defective set and also for replacement of the same by another defective set.

          Ops are jointly and severally are hereby directed to pay the said amount including decretal amount within one month from the date of this order failing which for non-compliance of the Forum’s order, ops jointly and severally shall have to pay penal damages  at the rate Rs. 200/- per day till full satisfaction of the decree and if ops fail to comply the order within the stipulated time, in that case, penal procedure u/s 27 of C.P. act 1986 shall be started against the ops for which they shall have to impose further penalty and fine.