Tamil Nadu

North Chennai

CC/37/2015

A.Raman, S/o.Annamalai - Complainant(s)

Versus

The Manager, Flipcot Internet Pvt Ltd, Ozone Manay Tech Park, - Opp.Party(s)

R.Vetrivel

28 Apr 2017

ORDER

                                                            Complaint presented on:  16.02.2015

                                                                Order pronounced on:  28.04.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

FRIDAY THE 28^th DAY OF APRIL 2017

 

C.C.NO.37/2015

 

 

Mr.A.Raman,

S/o.Annamalai,

Working at high Court Bill Section,

High Court Madras Campus,

Chennai – 600 104.

                                                                                    ….. Complainant

 

..Vs..

1. The Manager,

Flipkart  Internet Pvt. Ltd.,

Ozone Manay Tech Park,

No.58/18, 55/09, 7^th Floor,

Garveb Havipalya,

Hosour Road, Bangalore – 560 068,

Karnataka India.

 

2. The Manager,

M/s. Tablets Investment India Pvt. Ltd.,

Khasra No.605, Near Tata Telco,

Service Station, A Block,

Village Rangpuri,

Magipalpur,

New Delhi – 110 037.

 

.....Opposite Parties

Date of complaint                                 : 26.02.2015

Counsel for Complainant                      : M/s R.Vetrivel

 

Counsel for 1st Opposite Party                : M/s.Franco Louis, C.Louis Franco

 

Counsel for 2^nd Opposite Party                     : Ex - parte

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the 2^nd Opposite Party to replace the defective product with new tablet or refund the cost of Rs.3,499/- with interest and the Opposite Parties to pay compensation for mental agony and unfair trade practice with cost of the Complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant purchased a New Tablet via Online from the 1^st Opposite Party Flipkart.com on 29.09.2014 vide Invoice No.TI/DEL/09290032 for a sum of Rs.3,499/- and paid the said sum in cash on delivery from the 1^st  Opposite Party, who is an authorized dealer of the 2^nd Opposite Party, the manufacturer. The 2^nd Opposite Party gave warranty for a period of one year for the new Tablet. The said Tablet model is newly arrived in market and the 2^nd Opposite Party has been regularly advertising in Medias and online Agent Flipkart.com which lured many persons including the Complainant. When he tried to use the Tablet, (Ubislate 7C+) it had some problem and the same was replaced with another Tablet on 02.10.2014.The Complainant further states that again when he tried to use the replaced Tablet, it had also caused some problems such as (a) window was not working and (b) the charger did not work. The Complainant contacted the 2^nd Opposite Party customer care service and they informed him to contact one Mr.Velmurugan at No.210 MTH Road, Villivakkam, Chennai for getting services and when he went to the said address he found that there was no shop on the aforesaid address and the Complainant contacted the customer service and though they assured to replace the defective materials but  they did not replace it. The non operation of the tablet is purely due to the manufacturing defect. The product became defective within warranty period and the 2^nd Opposite Party neglected to replace the product. The Complainant sent legal notice and thereafter he had filed this Complaint for the deficiency committed by the Opposite Parties. Hence the Complainant prays to direct the 2^nd Opposite Party to replace the defective product with new tablet and the Opposite Parties to pay compensation for mental agony and unfair trade practice with cost of the Complaint.

2. The 2^nd opposite party remained ex-parte.

3. THE WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF:

          The 1^st Opposite Party operates its trading facility platform over the internet and under the domain name www.flipkart.com and has developed a website  and he is  engaged in the business of online market place, of various products of various manufacturers.  There is no privity of contract between the Complainant and Opposite Party No.1 and therefore, the Complaint is not maintainable under law. As an intermediary involvement of the Opposite Party No.I, the only transaction providing by him the online platform transaction and nothing beyond this.  The contract is only between the seller and the Complainant. The users of the website are bound by the terms of use enumerated on the website which clearly state that the contract of sale is between the buyer and the seller. Hence this Opposite Party has not committed any Deficiency in Service and prays to dismiss the Complaint with costs.

4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

5. POINT NO :1 

          It is an admitted fact that the Complainant purchased a Ubislate 7CTablet through the 1^st Opposite Party website on 20.09.2014 for a valuable consideration of Rs.3,499/- under Ex.A1 and the product was manufactured by the 2^nd Opposite Party and within few days  of purchase there was a hanging problem in the product and on Complaint, the 2^nd Opposite Party replaced with new product through its service provider on 02.10.2014.

          6. The new product was replaced on 02.10.2014 and the said product also became defective that the window was not working and for the same the Complainant contacted the customer care service of the 2^nd Opposite Party, he directed to contact one Mr.Velmurugan, 210 MTH Road, Villivakkam, Chennai and when the Complainant went to the place there was no shop at all and again the Complainant contacted the 2^nd Opposite Party customer care though the service personnel assured to attend the Complaint for replacement of the defective material they did not turn-up. The defect of the product arose within the warranty period. The 2^nd Opposite Party is the manufacturer of the product purchased by the Complainant. The window in the tablet would be only the manufacturing defect. The 2^nd Opposite Party/manufacturer remained as ex-parte. Therefore there was no evidence on behalf of the 2^nd Opposite Party. Therefore considering the above facts, it is held that the product manufactured by the 2^nd Opposite Party and purchased by the Complainant is having manufacturing defect and therefore it is held that the 2^nd Opposite Party has committed Deficiency in Service in marketing the defective product.

          7. The 1^st Opposite Party is only a platform providing online website and through that website the Complainant ordered and purchased the product. The Ex.A1 purchase invoice sent to the Complainant only from the 2^nd Opposite Party by collecting the cost of the product in that invoice. Therefore, the 2^nd Opposite Party only collected the amount of Rs.3,499/-. As per Ex.A1 invoice issued by the 2^nd Opposite Party, as contended by the 1^st Opposite Party he had provided his website only as a platform to purchase various product of various companies manufactured by them.  Therefore as contended by the 1^st Opposite Party there is no privity of contract between him and the Complainant for the product purchased by him, in view of such conclusion it is held that the 1^st Opposite Party has not committed any deficiency. From the forgoing discussions we hold that the 1^st Opposite Party has not committed any Deficiency in Service and it is the 2^nd Opposite Party only committed Deficiency in Service.

8. POINT NO:2

          Since the 2^nd Opposite Party sold the defective product to the Complainant caused mental agony to him is accepted. Therefore the Complainant is entitled for replacement of new product and however, we are inclined to order that the 2^nd Opposite Party should refund the cost of the Tablet of Rs.3,499/- to the Complainant and simultaneously the Complainant also should return the product to the 2^nd Opposite Party. Since, the product has not worked, the Complainant suffered with mental agony is accepted and for the same it would be  appropriate to order a sum of Rs.5,000/- towards compensation for mental agony, besides a sum of Rs.5,000/- towards litigation expenses. The Complaint in respect of the 1^st Opposite Party is liable to be dismissed.

In the result the complaint is partly allowed. The 2^nd opposite party is ordered to refund the cost of the Tablet of Rs.3,499/- (Rupees three thousand  four hundred  and ninety nine only) to the Complainant and simultaneously the Complainant also should handover the product to the 2^nd Opposite Party and further the 2^nd Opposite Party  also  ordered to pay a sum of Rs.5,000/-  (Rupees five thousand only) towards compensation for mental agony besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The Complaint in respect of the 1^st Opposite Party is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 28^th day of April 2017.

 

MEMBER – II                                                               PRESIDENT

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 29.09.2014                             Purchase invoice

Ex.A2 dated NIL                               Warranty Card

Ex.A3 dated 20.12.2014                            Legal Notice to Opposite Parties               

Ex.A4 dated 26.12.2014                            Postal tracks consignments of 1^st Opposite

                                                              Party

 

Ex.A5 dated NIL                               Returned cover of legal notice from 2^nd

                                                              Opposite Party & Postal fracks consignment

 

Ex.A6 dated NIL                               Tablet, model (Ubislate 7C+) Box

 

LIST OF DOCUMENTS FILED BY THE  1st OPPOSITE PARTY :                                                 ……. NIL ……..   MEMBER – II                                                               PRESIDENT