PRESENT:      SHRI SATISH KUMAR PANIGRAHI, PRESIDING MEMBER

                        SMT. SARITRI PATNAIK, MEMBER (W)

Through the Advocate Sri Awanish Kumar & Associate for the O.P.No.1; Advocate Sri A.B. Sinha, Advocate for the O.P.No.2 and None appears for the O.P.No.3: EXPARTE           

Sri Satish Kumar Panigrahi, Presiding Member:

The fact of the case in brief is that the complainant has filed this Consumer complaint Under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the Opposite Parties  (in short O.Ps.) and for redressal of his  grievance before this Commission. 

The fact of the case as averred by the complainant is that, the complainant was a customer of the O.P.No.1 who is the Retailer of Lenovo Mobiles and the O.P.No.2 is the authorized service center of the company.  The complainant intended to purchase a mobile set and approached the O.P.No.1 and made an order through online of Flip Card on 12.01.2015 vide Order ID No. OD101786050337435300. The company has delivered the handset of Lenovo Vibe X2 4G to the complainant accordingly the complainant paid the cost of the Handset through online at the time of order dated:12.01.2015. The cost of the handset was Rs.19,999/- only. After few days of purchase and delivery, the handset did not functioned properly, so the complainant immediately intimated the same to the O.P.No.1 over telephone about the defect of his handset. The O.P.No.1 advised the complainant to use the handset as usual, the same defect was minor. After continuous use, the handset will be rectified. Since the said handset is a defective one for the second time, the complainant reported the matter to O.P.No.1 and as per his instruction, the complainant took the said defective handset to the O.P.No.2 for repairing the defect and handed over his Lenovo Vibe X2 4G handset on 29.10.2015.  The O.P.No.2 returned the said handset with an assurance that the handset is corrected but again on 14.01.2016 the same defect arose to which the complainant rushed to the O.P.No.2 and told about the defect, handed over his handset on the same day. The O.P.No.2 returned the handset to the complaint after some days telling the handset is been corrected and the defect is no more. But after some days of use, the defect again started, as such the complainant went to the O.P.No.2 for make the good or otherwise to provide a replaced handset on 02.03.2016 but the O.P.No.2 intentionally kept the handset with him and on repeated approach also, the O.P.No.2 deliberately not returned the handset to the complainant for which the guarantee period of the mobile was lapsed and thereby on the plea of out of warranty, the O.P.No.2 returned the handset to the complainant which is not in time. It speaks the deficiency of service on the part of the O.Ps. Inspite of several approaches made by the complainant, neither both the O.Ps have taken any interests to repair nor have taken any steps to provide a new handset in due replacement of the defective one. The complainant sent legal notice on 08.08.2016 to O.Ps but the O.Ps gave evasive reply and did not comply the legal demand of the complainant.  The complainant has been suffering from 15.01.2015 and for these inactions of the O.Ps the complainant suffered serious mental agony resulting several ailments leading to hypertension for which the complainant has spent a considerable amount for his treatment.  Hence the complainant prayed to direct the O.Ps to pay compensation of Rs.30,000/- towards physical and mental agony in the best interests of justice.

              3.  Notices were issued to the Opposite Parties. Only the O.P.No.1 & 2 appeared through their advocate and filed written version.  The O.P.No.3 neither appeared nor filed any written version. Hence the O.P.No.3 was declared exparte on dated 26.02.2017.

              4. The O.P.No.1 filed written version through his advocate. It is stated that the complainant has suppressed true and material facts before this Hon’ble Commission and has approached with unclean hands. He is trying to mislead the Hon’ble Commission 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 is carrying on the business of sale of goods manufactured/produced by other manufacturers. The O.P.No.1 is a registered seller on the website “Flipkart.com” and sells products of others through the website. This O.P. is not engaged in selling of any goods manufactured or produced by its own. This O.P. is engaged in selling of goods manufactured and produced by others. Mr. Anil Gupta S/o Mr. Chidda Lal Gupta, Authorised Signatory of the Company is authorized to sign and verify the Reply/Written statement, vakalatnama etc. appoint advocate on behalf of the O.P.No.1 vide resolution dated 02.05.2017. The above complaint is wholly false, frivolous and vexatious and has been filed with malafide intention and for hearing 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 product 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 and in the present complaint, the manufacturer has not been impleaded as an O.P. despite being the necessary party. 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 services does not lie upon the O.P.No.1 as the O.P.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. It is reiterated that the Authorized service centre of the product is O.P.No.2 herein and not the answering O.P.No.1.   The manufacturer in the present complaint is the necessary party for justified trial of the complaint.  But the complainant has failed to impleaded the manufacturer as an Opposite Party in the present complaint and thus the present complaint is liable to be dismissed on the ground of non-joinder of necessary party. The dealer or retailer cannot be held liable for defect in the good/products in view of the legal position laid down by Apex Court. Hence this complaint is not maintainable against O.P.No.1. Hence the O.P.No.1 prayed to dismiss the complaint with exemplary cost.  

              5. The O.P.No.2 filed written version through his advocate. It is stated that the complaint petition against this O.P. No.2 are not all true and the O.P.No.2 do not admit the same and the complainant is put to strict proof of the same. On dated 29.10.2015 the complainant visited the service station of O.P.No.2 and complained about his handset with complain regarding “No Net work service/connection”. The service station after receipt of the handset as per procedure entered the online feeding of “IMEI” number on Lenovo website and after getting confirmed that the set is “under warrantee” accepted the mobile handset for repair and rectification of defects. Thereafter work order dated 29.10.2016 was issued to the complainant. It is a usual procedure with service centre is that after receipt of the handset the service engineer open the set and find out which part is defective, causing the problems with handset and inform the manufacture company for replacement of the said part with new replacement of parts and in this case the said information was passed to “Lenovo” the manufacturer of the set and “part claim requisition” was placed with company. After receipt of the said required part the said set was attended to and after replacement of the said part and when the set was ready for use, the service station informed the “customer to receive the said set”. The repair process starts after receipt of good parts from the company and in this case the said process has been followed. The said set was delivered to complainant on dated 13.11.2015. On dated 14.01.2016 the complainant visited the service centre with complaint in “Earpiece speaker” problem in said mobile. The Service centre o.P.No.2 followed the usual procedure of acceptance of the handset and after getting spares from the company rectified the defect with replacement of part and informed the complainant who received the set on dated 30.01.2016. The complainant came to O.P.No.2 on 02.03.2016 with complain and this O.P. kept the handset and make the complainant believe that they will provide a new handset in place of defective one. This O.P.No.2 refutes the allegation and humbly beg to state that on dated 02.03.2016 the complainant visited the service centre of O.P. No.2 presented the handset with the “Ear piece Defect”. The service personal opened the battery in presence of the complainant to know the “IMEI NO” so as to lodge the complaint on Lenovo website after lodging complain it was found that the set is out of warranty. Thereafter the set was returned to the complainant as it was out of warrantee. The allegation of the complainant is that O.P.No.2 kept the handset is false and baseless. The service station cannot entertain any complaint after warrantee period is over and can only render service within warranty period. The service period of one year was over as on 02.03.2016 which this O.P. verified with manufacturer’s website and when found “out of warranty” he immediately returned the handset regretting their inability receive the set for repair and defect rectification on the same time. The service station has got no authority to accept the set for repair when there is “No warranty” as such the allegation of complainant is false and baseless.  This O.P. has been authorized for after sales service within warranty period and for that service the company pays a consolidated amount of Rs.70/- per set. The allegation of unruly behavior by this O.P. to the complainant is false and bears any truth in it.  The claim of the complainant for replacement of the mobile set is concerned this O.P. have nothing to do with that matter. The manufacturing company can replace the set. This O.P. is authorized for service purpose only that to within warranty period. This O.P. can not in any way replace the handset. This O.P. is a Franchise for service of Lenovo handset, but not authorized for replacement etc. It would be appropriate for the complainant to add the Manufacturing Company i.e. Lenovo for redressal of his grievances. It would be appropriate for the complainant to add the manufacturing company i.e. Lenovo for redressal of his grievance. In the reply to legal notice to this O.P. and this O.P. has also advised the complainant to proceed the matter with LENOVO, but in this case the manufacturer has not been a party to it.  Hence the O.P.No.2 prayed to dismiss the case with cost.

6. On foregoing discussion, and for the interest of justice, we hold that there is deficiency in service on the part of the O.P no.2 and dismissed against the OP no.1 & 3.

7. In the result, the complainant’s case is allowed against the op no.2 on contest. The complainant is directed to hand over the defective mobile to the opposite party no.2 to repair and in the said event, the opposite party no.2 is directed to repair the defective mobile free of cost and provided the extension of the warranty for further period of one year. The opposite party no.2 is not provided the appropriate services to the complainant and unnecessarily constraint the complainant to knock the door of the Commission as such the opposite parties are directed to pay litigation cost of Rs.5000/- to the complainant within 45 days of receipt of this order, failing which all the dues shall carry 12% interest per annum till its actual date of realization and the complainant is at liberty to take appropriate steps in accordance to the consumer protection Act for realization of all dues. This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. A copy of this order be also sent to the Secretary, State Consumer Disputes Rederssal Commission, Odisha, Cuttack for information.

The file is to be consigned to the record room along with a copy of this Judgment.

PRONOUNCED ON: 03.04.2023