Orissa

Rayagada

CC/99/2018

Sri Rakesh Kumar - Complainant(s)

Versus

The Manager, Flip Kart Internet Pvt. Ltd., - Opp.Party(s)

Self

14 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

POST  /  DIST: Rayagada,  STATE:  ODISHA,   Pin No. 765001.

                                                      ******************

C.C.case  No.   99            / 2019.             Date       14.  2.2020

 

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                      President

Sri  Gadadhara  Sahu,                                                       Member.

Smt.Padmalaya  Mishra,.                                                 Member

 

Sri   Rakesh  Kumar S., S/O: Dharma Senapati, New  Colony, Po/Dist:Rayagada,State:Odisha.                                …..Complainant.

Versus.

1.The Manager, Flipkart  Internet  Pvt. Ltd., Ground floor, 7^th. Main, 80 feet  road,3^rd. blockKoramangala, Benguluru, 560034 (India).

 

2. The  Care  Manager,  Intex Technologies (I) Ltd., A 61, Okhla Industrial Area, Phase-2, Delhi, 110020                                        .…..Opp.  Parties.

For the  Complainant:-Sri R.K.Senapati, Advocate, Rayagada.

For the  O.P No.1:- Sri  Rama  Kanta  Jena, Advocate, Rayagada.

For  O.P. No. 2:-  Set Exparte.

 

JUDGEMENT

 

            The  factual matrix of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for non removing the defects during warranty period  towards   Intex Irist Black and orange smart watch  for which  the complainant  sought for redressal of the grievances raised by the complainant. The brief facts  are summarised here  under.

That  the complainant  had  placed order  for  purchase of  Intex Irist black and orange smart watch  through Flipkart i.e. O.P. No.1 in shape of  on line    vide Invoice  No.FABJGE 1900000761  DT.  27.04.2018, of the  O.P. No. 2   and paid  Rs.4,999/- to the  O.P.  In turn  the O.P. No. 1 &2 had sent  above set  through  courier service    which  was received  by the complainant   during the month of  April, 2018.  After  using some months the above set found defective i.e. total non function and un use during the warranty period   so the complainant  had  intimated to the  O.Ps  for rectification of the same but the O.Ps are paid deaf ear. That the battery  of the said  set  get drains automatically without  its usage to extent   and has become defunct. Hence this case filed by the complainant  for redressal of his  grievance before the forum as  he  has  no alternative  then to approach   this forum.                                                                            

On being noticed the O.P. No. 1  have  filed written version through their learned counsel and contended   that  the present complaint is not maintainable and liable to be dismissed against the O.P  No..1.  The O.P. No. 1    is  protected  by the provisions of Section-79 of the Information  Technology Act, 2000. The  O.P. No 1 neither offers  nor provides any assurance and/or offers  warranty   to the     buyers  of the  product.. The  O.P.   No. 1 is  neither  a  ‘trader’ nor a ‘service provider’ and there does not exists any privity of contract   between the complainant and  the O.P. No.1.  The O.P. No. 1 is   only  limited  to providing on  line platform  to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its  website. The O.P  No. 1  taking one and other pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No. 1..The O.P. No. 1   in their written version relied  citations of the apex court. The O.P No.1 `  prays to dismiss the complaint petition against   O.P.  No. 1   for the best  interest   of justice.

On being noticed the O.P No. 2 neither entering in to appear before the forum nor filed their  written version inspite of more than  06 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around one year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps. The action of the O.Ps is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

Heard from the learned counsel for the O.P. No. 1 and complainant.  Perused the record filed by the parties.

The  learned counsel  for the O.P No.1 advanced arguments  vehemently touching the points both on the facts  as well as on  law.

          FINDINGS.

From the records it reveals that, the complainant had purchased a Intex Irist black and orange smart watch  through Flipkart i.e. O.P. No.1 in shape of  on line    vide Invoice  No. FABJGE 1900000761  DT.  27.04.2018, of the  O.P. No. 2   and paid  Rs.4,999/- to the  O.P No.2   with  one year warranty (copies of  Tax invoice are in the file which are marked as Annexure-1 ). But unfortunately after delivery  with in few months the above  set found defective and not functioning. The complainant complained the O.Ps  for necessary repair in turn the OP paid deaf ear.   The complainant further approached the O.Ps for return the money which he spent but for no use.

.           From the records it is seen that, the complainant has filed Xerox copy of purchase bill.  Hence it is abundantly clear that, the complainant has repeatedly approached the O.Ps for the defective of above  set with complaints where in the O.P     knows from time to time.

              It is a cardinal rule and upheld by the Hon’ble Supreme Court and the NCDRC in the catena of  judgements that it is the manufacturer who is  liable for the manufacturing defects in a product and not the dealer/seller or retailer.  Hence, in the  present case in hand the O.P. No.2 (Manufacturer)  is liable to refund  the price of the above set. 

 

Perused the complaint petition and documents filed by the complainant and we accept the grievance of the complainant. The Complainant  argued that the O.Ps have sold a defective   set  to the complainant and claimed that the O.Ps caused deficiency in service and deprived of the complainant of enjoyment of the above set  since the date of  its purchase  which caused mental agony and harassment to the complainant.

Now we have to see whether there was any negligence of the OPs  in providing  after sale service  to the complainant as alleged ?

 

We perused the documents filed by the complainant.  Since the above set found defective after its purchase    and   the complainant  informed the OPs regarding the defect but the  OPs  failed to remove  the defect . At this stage we hold that  if the  set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective  set  is sold to the complainant , the complainant is entitled to get refund of the price of the article or to replace a new  one or  remove the defects  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss  U/S-14 of the C.P. Act, 1986.  In the instant case  as it is appears that the above set  which was purchased by the complainant had developed  defects and the O.Ps were unable to restore its normal functioning during the warranty period. It appears that the complainant invested  a substantial amount and purchased the  set  with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the above set    and the defectes were not removed by the O.Ps who  know the defects from time to time from the complainant.

 

On appreciation of the evidences adduce before it, the forum is inclined to allow the complaint against the O.Ps.

To meet the ends of justice the following order is passed.

                                                            O R D E R

            In  resultant the complaint petition  stands allowed  against the O.Ps.

            The O.P No.2(Manufacturer) is   directed to return back the defective product   from the complainant  by paying the price of the  Intex Irist black and orange smart watch a sum of Rs. 4,999/-  besides  to   pay   an   amount of Rs.1,000/- towards mental agony and  cost of  litigation.

            The O.P. No.1  is  directed to refer the matter to the  O.P. No.2 for early compliance.

            The entire directions shall be carried out with in 60 days from the  date of receipt   of this order. Serve the order  to the  parties free of cost.

Dictated and corrected by me.

            Pronounced in the open forum on       14  ^th.  day of   February, 2020.

 

MEMBER                                             MEMBER                                                                                             PRESIDENT