Ld Advocates are present. Judgement is ready in open commission in 8 pages 4 separtate sheet of papers. 

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case is that the Complainant is a permanent resident of Vill.- Harduachak, P.O.-Gourangachak, P.S.-Moyna, Dist. Purba Medinipur, Pin-721644 and the product in respect of which this complaint is made was delivered at Tamluk, Purba Medinipur and the cause of action lastly arose at Mecheda, Tamluk, Purba Medinipur which is under the jurisdiction of this Commission. The O.P. No.1 & 2 Savan retailers Private Limited are the sellers who sales various electronic goods through Online shopping Platform controlled by the O.P. NO.5 namely Flipkart Internet Pvt. Ltd. The O.P. No.3 Xiaomi Technology India Pvt. Ltd is the manufacturer of the Redmi branded handset and O.P. No.-4 i.e. M.I. Service Center, Mecheda is the authorized service centre of the O.P. No.3. The O.P. No.5 i.e. the Flipkart Internet Private Ltd is a company which controls the Online shopping Platform namely “Flipkart”. The Complainant is a practicing advocate at District Judges’ Court, Purba Medinipur at Tamluk and needed a new mobile handset for his working purpose and as per his necessity; he ordered one Redmi Note 5 (Gold, 32 GB) handset having IMEI/Serial No. 869048034300581 through Online Shopping Platform namely “Flipkart” being order ID- OD112987541994885000 dt. 31.07.2018. As the OP No.1 & 2 were the sellers of the handset in question on the said online platform namely “flipkart”. The Complainant duly paid the entire amount of Rs. 9999/- (Nine thousand Nine hundred Ninety Nine) in favour of the O.P.NOs.1 & 2 through online payment mode. The said handset bears the brand warranty of one year for the mobile and six months for accessories. All on a sudden, the said handset stopped working on 12.05.2019 without any negligence on the part of the Complainant. As the problem cropped up within the warranty period fixed for the handset/mobile the Complainant approached to the office of the O.P. No.4 i.e. the authorised service centre of O.P. No.3 on 13.05.2019. The said M.I. Service Centre i.e. O.P. No.4 informed the complainant that he has found the sign of water within the handset and his company do not cover warranty for the same. The O.P. No.4 was so careless towards the matter that in spite of advising him to communicate the matter to the company, he even did not take any step towards informing the matter to his company and even did not supply any job sheet to the Complainant. The complainant submits that there are so many valuable documents, contract numbers, uploaded cases through e-courts services & Confonet App saved within the handset and as the handset was/is very new, the Complainant did not feel to save them to any other device, as a result, he also suffers professional loss & injury.  Having found no other alternative , the complainant filed a complaint before the Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur Regional Office and the said authority called both M.I. Service Centre I.e. O.P. NO.4 as well as the complainant on 18.07.2019but the said O.P. No.4 did not attend in the course of mediation process. The Assistant Director passed the order dt. 18.07.2019 holding that. “The Complainant want to move to the Forum with ref to our suggestions”. The Complainant submits that the goods i.e. the handset in question supplied by the O.P. No.1 & 2 was defective and O.P. No.4 who is the authorized Service Centre of O.P. No.3 badly neglect to entertain the matter before the appropriate authority which also makes the deficiency in service. Thus the circumstances force the complaint to file this instant case. The cause of action of this instant complaint arose on and from 13.05.2019 when the O.P. NO.4 informed the complaint at Mecheda under Tamluk P.S. that they have nothing to do in respect of this instant matter, which is within this jurisdiction. The Complainant again submits that as a result of the defective goods i.e. the handset in question and also as a result of the deficiency in service on the part of the O.Ps the Complaint also suffers a lot in relation to his profession along with the other. The Complainant further submits that the Opposite parties have been grossly negligent and deficient in service and also supplied defective goods which made him injury, damages in monetary terms and harassment and mental agony.

        In the facts and circumstances of this case, the complainant most humbly prays for the following reliefs; to cure the handset in question as early as possible or to replace the handset of similar type or to return the entire amount of Rs. 9,999/- to the Complainant. Damages amounting to Rs. 1,00,000/- Only be paid by the Opposite parties to the complainant for mental pain, agony, physical suffering of the complainant and for loss in regarding the professional work of the complainant; cost of proceeding amounting to Rs. 10,000/- be paid by the opposite parties to the Complainant. Any other reliefs as the complainant may be entitled to be granted.

Notices of the case have been duly served upon the ops. The ops 1,2,3& 5 contested the by filing joint Written Version by ops 1 & 2 and filing separate written version each by op-3 and op-5. The case proceeded ex-parte against op-4.

The epitome of joint written version filed by O.Ps 1 & 2 , being one and same legal entity  can be stated as follows: The O.Ps 1 & 2 have denied all the allegations, content, and statements of the Complaint which are inconsistent with what is stated hereinafter The Complainant have suppressed true and material facts before this Hon’ble Forum and approached with unclean hands. He is trying to mislead the Hon’ble Forum by presenting the concocted story; hence, the present complaint is not maintainable and liable to be dismissed on this ground. The O.P. No.1 Savan Retailers Private Limited is a company incorporated under the Companies Act 2013, is a company incorporated under the Companies Act 2013,The Opposite Party No.1 is carrying on the business of sale of goods manufactured/produced by others. The Opposite Party No.1 is a registered seller on the website “flipkart.com” and sells products of other manufactures, traders, etc. under their respective trademarks through the website. The O.P No.1 has acquired good market reputation for its range of products offered and for its exceptional customer support. It is pertinent to mention here that the O.P. No.1 is not engaged in sale of any goods manufactured or produced by its own.  Thus, O.P. No.1 has a separate and distinct identity from that of the manufacturer of the product i.e. Xiaomi, and there is no relation of principal & agent between ‘Xiaomi’ and O.P. No.1. Mr. Arun Dwivedi S/O. Mr. Ram Baboo Dwivedi, The O.P. No.1 submits that the above complaint is wholly false, frivolous and vexatious and has been filed with malafide intention and for harassing the O.P. No.1 .The Complaint is not maintainable either in law or on facts and is liable to be dismissed in limine as it does not show any cause of action against the O.P. NO.1 The present Complaint is devoid of any merits, and the averments made in the complaint are baseless and do not cover the complete facts of the case and are made only with the intentions to defame the O.P. no.1 and extorting money in illegal manner. The Complaint is liable to be dismissed on this ground alone. The O.P. No.1 submits that he products sold by the O.P. No.1 carries manufacturer’s warranty. As a reseller, involvement of O.P. No.1 in the entire transaction is limited only to selling the products of various manufacturers. It is pertinent to mention here that there has neither been any shortage of supply nor any deficiency of service on the part of the O.P. No.1 liability to provide after sale service does not lie upon the O.P. No.1 as the Opposite Party No.1 is not the manufacturer or the service centre engaged by the manufacturer, and hence, no cause of action lies against the O.P. no.1 in the present complaint.  Irrespective of the warranty provided by the manufacturer, as a goodwill gesture the O.P. No.1 provides 10 days return/replacement policy of this customer in case there is any issue with the product which cannot be rectified. However, in the instant matter the complainant had used the product in issue for more than 9 Months and then contacted the Service Centre i.e. Opposite Party No.4 appointed for the purpose of providing after sale during the warranty period by the manufacturer i.e. O.P. No.3 with the alleged issue in the product as the complainant has acknowledged that they are the right concerned authority to address the alleged issue. Moreover, the Complainant never contacted the O.P No.1 for any grievances. As, it is a settled proposition of law that the liability for defects in product or its after sales service issues rests with the manufacturer and its authorized service center only.  Dealer or retailer cannot be held liable for defect in the good/products in view of the legal position laid down by Apex Court in “Hindustan Motor Ltd., and another Vs. No. Sivakumar (2000) 10 SCC 654” and in “AbhinandanVs. Ajit Kumar Verma and Ors. (2008) CPJ336 (NC)” and the hence this complaint is not maintainable against O.P. NO.1

The sum and substance of Written Version filed by op-3 reflects that the Opposite Party No.3 is a company incorporated under the Companies Act The O.P. No.3 is engaged in the marketing, sale and service inter alia of mobile phones in India under the brands “Mi” and “Xiaomi”. The O.P. No. 4 is an authorized service centre of Opposite Party No.3. The O.P. NO.5 is an e-commerce company in India. It is stated that Complainant Mr. Subrata Hazra has purchased a phone (“Product”) sold under the Mi brand – namely, the Redmi Note 5 Mobile Phone on July 31, 2018, for Rs. 9,999/-. The Product sold and delivered to the Complainant has IMEI NO. 86948034300581. All MI and Xiaomi brand mobile phones sold within India are sold under a set of warranty terms and conditions. A copy of these warranty terms and conditions, as enclosed and delivered to the Complainant along with the Product, is provided as Annexure A. A copy of the same warranty terms as available at the Opposite Parties’ Website http.//www.mi.com/in/service/ is provided as Annexure B. said warranty terms are the specific and limited warranty terms offered in connection with all MI and Xiaomi brand phones sold within India, including the product purchased by and delivered to the Complainant. On May 13, 2019 the Complainant approached the authorized service centre of Opposite Party No.3 with issues related to the product. The Complainant informed the technician of the authorized service centre of O.P. No.3 that the product is having power on fault which was in non-operative condition of the product. The service engineer duly recorded the issue and requested the Complainant to wait until the examination/inspection is completed. After examination and reviewing the product at the service centre, it was ascertained that the product has suffered customer induced/liquid damage. The technician of the O.P. No.3 duly recorded the same in the inspection sheet as can be ascertained from Annexure C. The Photographs highlighting the corrosion/liquid marks (which usually occur when the product comes into contact with liquid/water) on the product is attached as Annexure D. The technicians of the authorized service centre of O.P. No.3 duly informed the Complainant about the customer induced/liquid damage in the product and also requested the Complainant to pay repaid costs since any customer induced/liquid damage is not covered under standard warranty terms & conditions applicable to the product. The complainant however, refused to pay the repair costs and the product was duly returned to the Complainant without repair as can be ascertained from Annexure E. The O.P. No.3 subsequently received a copy of the present complaint, alleging that:  (i). The Opposite Party No.3 have sold handset suffering manufacturing defect, has exhibited deficiency of service, and have caused harassment and mental agony to the Complainant and (ii). The Complainant believes that the Complainant is entitled to receive the replacement/refund of the price of the product along with compensations. It is added that the O.P. No.3 refers to Annexure B of the present pleadings, wherein at paragraph No.5 the warranty applicable to the product clearly states: “Xiaomi will determine whether a product is “Out of Warranty” as the company’s discretion according to the below listed standards. Repair of Out of Warranty products shall be separately quoted by the Xiaomi service centre and respective service shall be provided upon service fee payment. During the warranty period, in the event of violation which is defined as customer induced damage, such as self-repairs, exposure to water, damage cause by misuse, alternation, failure to comply with the product manual, etc…. The O.P. No.3 respectfully submits that there is no deficiency of service on the part of O.P. No.3 or any of its agents. The technician duly requested the Complainant to pay the estimated cost for repair since any kind of customer induced/liquid damage is not covered under the warranty terms and conditions applicable to the Product. The Complainant however, refused to pay the repair costs. Therefore, the technician of the authorized service centre of O.P . No.3 duly returned the product to the Complainant without repair (See Annexure E). It is well established, including by the Hon’ble Supreme Court of India (Maruti Udyog Limited V. Susheel Kumar Gabgotra, (2006) 4 SCC 644, at paragraphs 10 and 11) that where a warranty condition is specifically stated, a contrary implied warranty cannot be imputed. In the present case the applicable warranties accompanying and governing sale of the product to the complainant clearly and specifically exclude any warranty for customer induce/liquid damage/self-repair to the product. In Bharathi Knitting V. D.H.L. Worldwide Express Courier, (1996) 4 SCC 704, the Hon’ble Supreme Court had held that in case of specific term in the contract, the parties will be bound by the terms of the contract. In the present case the complainant’s product was found to have suffered from customer induced/liquid damage in consequence of which the applicable warranty was invalidated (see Annexure D).  It is well established in law that a relief or remedy may not be granted without pointing to a manufacturing defect. (In Managing Person, Sri Sai Ram Motors v. Maggidi Srini vas. FA No. 853 of 2012). In Royal Enfield Motors Ltd. V. Kulwant Singh Chauhan, (2011) 4 CPR 208, held that: “It was the duty of the Complainant to establish his case that the motorcycle was suffering with any sort of manufacturing defect”. In classic automobiles V. Lila Nand Mishra &Ors; I (2010) CPJ 235 (NC), it is held that; “Onus to prove manufacturing defect lies on the Complainant. No expert evidence produced to prove manufacturing defect in vehicle. Alleged defects cannot be termed as manufacturing defect. The Complainant’s allegations are therefore contrary to the applicable position in law and contract, and are not maintainable. In Mahindra & Mahindra Ltd. Vs. B.C. Thakurdesai and Anr., II (1993)CPJ 225 (NC), it is held that: “If a consumer purchases some machinery and some part of it is found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer, if he is asked o replace the whole machinery without sufficient cause.” Similarly, in the matter of Tata Engineering & Locomotive Co. Ltd. And  Anr. V. M. Moosa, 1994 (3) CPR 395, it has been held that he manufacturer cannot be ordered to replace the vehicle or refund its price merely because some defect appears which can be rectified or defective part can be replace. In view of the established position in law, even if the Complainant were entitled a remedy in connection with defects in the product, (which in this case, the Complainant is clearly not entitled to any such remedy) such remedy would be limited to repair or replacement of the defective part of the product and not replacement or refund associated with the entire product. In view of the above, this Complaint may be dismissed in limine.

The OP-5 in its written version  has stated inter alia that its entity falls in the category of intermediary ; it is protected under the provisions of section 79 of the I T Act 2000.It provides online platformto facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers. According to it as the product was having manufacturing defect the responsibility to resolve the matter lies with OPS 1 & 2 ; The allegations against this op is not sustainable. The complainant has got no cause of action against this op. According to this op the case against it is liable to be dismissed.

Points for determination are:

1.  Is the case maintainable in its present form and in law?  

2.   Is the complainant entitled to the relief(s) as sought   for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the Complaint on affidavit of the complainant, evidence of complainant along with documents questionnaire and reply by ops-1,2& 3 jointly and questionnaire by op-5 and evidence ( opws ) by  ops-1,2, 3 & 5. We have also anxiously gone through the joint written arguments submitted by  ops-1,2, 3 & 5.

Having regards had to the facts and circumstances of the case it is evident that  the complainant being a consumer has alleged deficiency in service against the ops; the bundle of facts indicate that this case is maintainable in its present form and in law.

There is no dispute that the Opposite Party No.3 is a company incorporated under the Companies Act the O.P. No.3 is engaged in the marketing, sale and service inter alia of mobile phones in India under the brands “Mi” and “Xiaomi”. The O.P. No. 4 is an authorized service centre of Opposite Party No.3. The O.P. NO.5 is an e-commerce company in India. Indisputably, Complainant Mr. Subrata Hazra has purchased a phone (“Product”) sold under the Mi brand – namely, the Redmi Note 5 Mobile Phone on July 31, 2018, for Rs. 9,999/-. The Product sold and delivered to the Complainant has IMEI NO. 86948034300581.

 It can also be ascertained from the above written versions that the ops -1,2,3& 5 have almost supported the averments made in the complaint. Now, let read those versions’ On May 13, 2019 the Complainant approached the authorized service centre of Opposite Party No.3 with issues related to the product. The Complainant informed the technician of the authorized service centre of O.P. No.3 that the product is having power on fault which was in non-operative condition of the product. The service engineer duly recorded the issue and requested the Complainant to wait until the examination/inspection is completed. After examination and reviewing the product at the service centre, it was ascertained that the product has suffered customer induced/liquid damage. The technician of the O.P. No.3 duly recorded the same in the inspection sheet as can be ascertained from Annexure C. The Photographs highlighting the corrosion/liquid marks (which usually occur when the product comes into contact with liquid/water) on the product is attached as Annexure D. The technicians of the authorized service centre of O.P. No.3 duly informed the Complainant about the customer induced/liquid damage in the product and also requested the Complainant to pay repaid costs since any customer induced/liquid damage is not covered under standard warranty terms & conditions applicable to the product. The complainant however, refused to pay the repair costs and the product was duly returned to the Complainant without repair as can be ascertained from Annexure E.

 Now, the crux of the dispute is that according to contesting ops in the present case the complainant’s product was found to have suffered from customer induced/liquid damage in consequence of which the applicable warranty was invalidated (see Annexure D) .In this context it is worthy to be mentioned that the contesting ops, despite direction given by this commission, have not filed Annexures A to E ; particularly Annexures C to E to support the their versions. From order dated 10.02.2021 and 24.02 2021 it appears that as per prayer of the op 3  the questioned product was produced by the complainant  for inspection by their own expert but the said op did not prefer to inspect the same. So, it can not be held that  complainant’s product was found to have suffered from customer induced/liquid damage in consequence of which the applicable warranty was invalidated.  The principles of law settled by the Hon’ble Apex Court and decisions of other Hon’ble Commissions as referred by the contesting ops are not applicable in this case as the facts and circumstances of this case are different from that of the referred cases. The ops 1,2,3 & 5 should have taken appropriate steps to address the grievances of the complaint in respect of the product sold within warranty period. We do not find any deficiency on the part of the op-4, the service centre .The ops 1,2,3 & 5 ,who are jointly and severally liable, set instances of deficiency in service and of unfair trade practice by their fore noted inaction. The complainant is entitled to get refund of Rs. 9999/-, the purchase value of the mobile set Rs.7001/- as compensation for harassment and litigation costs of Rs.3000/ from the ops-1,2,3 & 5.

Both the points are decided accordingly.

Thus, the complaint case  succeeds.

Hence, it is

O R D E R E D

That the CC/506 of 2019 be and the same is allowed on contest against the ops-1,2,3& 5 and dismissed ex-parte against the OP-4.

The ops 1,2,3& 5 ,who are jointly and severally liable, are directed to refund Rs. 9999/-, the purchase value of the mobile set , Rs.7001/- as compensation for harassment and Rs.3000/ towards litigation costs to the complainant within 45 days from the date of this order ; in default , the said total amount of Rs.20,000/- shall carry simple interest @ 10% per annum from the date of filing of this case till realisation.

On compliance of the above direction by the  ops 1,2,3 & 5 ,the complainant will hand over the disputed product/mobile phone ,as it is basis, to any of the said  ops 1,2,3 & 5 as nominated by them immediately.

Let a copy of the judgment be supplied to each of the complainant and the contesting OPs free of cost.