The brief facts of the complaint case are that after being convinced by the advertisement of OP No.1 on 22.12.2014 the complainant has placed his order to send one mobile handset being Moto X 2nd (Gen) XTIO92 Black vide invoice dated 24.12.2014 and the same has been reached to the complainant on 27.12.2014 vide tracking ID WSRE1896293458 and after making the payment of the cost of the said mobile handset amounting to Rs.33,000/- only to the OP No.1 the said mobile handset has been delivered at his residence.  On 23.11.2015 all on a sudden the said mobile handset became dead and absolutely stopped its function.  As the mobile handset is/was as an essential part of life, on the same day the complainant has visited the OP No.2 i.e., Service Centre of OP No.1 and after listening the problem the OP No.2 has directed the complainant to deposit the handset for repair and accordingly on 23.11.2015 the OP No.2 received the handset and issued one customer unit receipt vide work order no.AMC/MG/15/00840, MSN No.R347XW4W2V call type-warranty wherein the OP No.2 has written the problem of the handset as set ‘dead’ after verification of the said mobile handset and the OP No.2 assured the complainant that they will repair the said mobile handset and return back to the complainant within seven days from the date of receipt of the said mobile handset.  Accordingly, on 01.12.2015 the complainant had been to the office of the OP No.2 to collect the mobile handset but till that date OP No.2 has not repaired the said set without any authentic reason and requested the complainant to visit again after one week and in the meantime they will repair the handset to deliver the same to the complainant.  Finding no other alternative the complainant through customer complain no.1800-1022344 made a complaint and one Md. Imran had received the said call and assured the complainant that the handset will be repaired very soon.  On 08.12.2015 the complainant again had been to the office of the OP No.2 but with no result.  On the same day the complainant received one mail from OP No.1 to share with them so that they can escalate the matter to the concerned team.  The complainant again visited the OP No.2 and since then the complainant has started visiting almost regularly as per assurance of OP No.2 but on each and every occasion he had to return with empty hand.  In the mean time the communication in between OP No.1 and the complainant became continued and through mail to the OP No.1 the complainant has requested to provide his mobile on 23.12.2015 as directed by OP No.2 but without any result.  On 06.01.2016 the complainant received another mail from OP No.1 that due to change of closure date, the parts have been stuck up with customs or road permit, the handset could not be repaired and fixed another date on 19.01.2016 for delivery of the handset after repair the same.  On 20.01.2016 the complainant again received another mail from OP No.1 that they will resolve the case within 06.02.2016.  The complainant repeatedly visited the OP No.2 and enquired about his mobile phone but on each and every occasion he got the false assurances from the OP No.1 & 2 that they will repair the handset very soon and OP No.2 will inform him through phone.  The complainant then ringed the Regional Manager Md. Imran who is handling the matter, several times to know the present status of the mobile handset but the said Md. Imran has also started avoiding to receive the call.  On 30.01.2016 the complainant had been to the OP No.2 to know the progress of repair but the officials and the technicians of OP No.2 all on a sudden became aggressive and started to make argument with the complainant and abusing the complainant in a filthy language and clearly said that they will not repair the handset and if the same be repaired they will not handover the same to the complainant and ousted him from the service centre.  It has been asserted by the complainant that the mobile handset has been dead within the warranty period and OPs know it very well that the said manufacturing problem is incurable and there is only option to replace the same and for that reason the OPs are delaying to avoid their liability which clearly shows the mal trade practice of the OPs.  On account of dereliction of duty and negligence in respect of performance of job on the part of the OPs the complainant suffered huge loss, injury due to deprivation, harassment, mental agony.  Hence this case.              

OP Nos.1 & 2 entered appearance and contested the case by filing written versions wherein the material averments made in the complaint have been denied and it has been contended inter-alia that the instant case is not maintainable. 

It has been contended by the OP No.1 that he i.e., OP No.1 is a registered reseller on the website “Flipkart.com” and sells products of other manufacturers, traders etc. under their respective trademarks through the website and as such the complainant should have impleaded the manufacturer or its service centre as necessary party in the present complaint as the entire complaint is based upon the grievance in relation to the defect in the mobile handset and as this OP No.1 is neither the manufacturer nor its authorised service centre and no cause of action lies against him in the present case.  It has been further contended by the OP No.1 that the complainant had used the product in issue for about eleven months and thereafter the defect arose in the said product and at such a belated stage the natural corollary that follows from the above facts is that the alleged defect in the mobile phone may have arisen due to the complainant’s own fault and misuse and hence the OP No.1 cannot be made liable and the complaint filed by the complainant is liable to be dismissed.  It is denied by the OP No.1 that complainant ever contacted/visited the OP No.1 with respect to the alleged defect arising in the mobile handset or OP No.1 ever sent a mail to the complainant or gave assurance to the complainant and averments made by the complainant in this respect are false and baseless.  

The OP No.2 has stated in the written version that the mobile handset which was deposited to the OP No.2 for repairing was repaired properly but the complainant did not take delivery of the said handset and lastly the complainant came to the OP No.2 and demanded the value of the said mobile handset and OP No.2 informed the complainant that the refund of value in respect of the mobile handset is not part of the OP No.2 and OP No.2 although offered to replace the said defective mobile handset by a new handset of the same mobile after obtaining consent from the OP No.1 but the complainant refused the same and demanded value of the mobile handset.  It has been further stated by the OP No.2 that there was no negligence or deficiency in service on the part of the OP No.2 and as such the instant case is liable to be dismissed.

To prove the case, the complainant has filed the following documents:-

1.       Xerox copy of Tax Invoice.

2.       Xerox copy of payment Receipt. 

3.       Xerox copy of Customer Unit Receipt.

4.       Xerox copy of mail.

OP No.2 has filed the following documents :-

1.       Xerox copy of customer unit receipt.

2.       Xerox copy of Delivery challan. 

Complainant has filed examination-in-chief supported by affidavit.

Complainant has filed written notes of argument.

OP Nos.1 & 2 have filed examination-in-chief by way of affidavit.

OP No.2 has filed written notes of argument. 

Points for determination

1.       Is there is any deficiency in service on the part of the OPs ?

2.       Is the complainant entitled to get any relief as prayed for ?

Decision with reason

          Both the issues are taken up together for the brevity and convenience of discussion.

It is admitted fact that the complainant purchased one mobile handset being Moto X 2nd (Gen) XTIO92 Black vide invoice dated 24.12.2014 from the OP No.1 on 27.12.2014 through website and made payment of the cost of the said mobile handset amounting to Rs.33,000/-.  It is also admitted fact that OP No.1 is a business concern carrying on business of sale of goods manufactured/produced by others and OP No.1 is the Registered reseller on the website ‘Flipkart.com” and sales product of the other manufacturers, traders etc. under their respective trademarks through website.  It is also not disputed that on 23.11.2015 all on a sudden the said mobile phone of the complainant remained dead and on the same day the complainant handed over the said mobile handset to the OP No.2, the Service Centre for repair and OP No.2 received the phone and issued one customer unit receipt vide work order No.AMC/MG/15/00840, MSN No.R347XW4W2V, call type-warranty wherein the OP No.2 has written the problem of the handset as set ‘dead’. 

This is the case of the complainant that OP No.2 assured that they will repair the said mobile handset and return back to the complainant within seven days from the date of receipt of the said mobile handset and accordingly the complainant had been to the office of the OP No.2 to collect the mobile handset on several dates but the OP No.2 has neither repaired the handset nor returned the same to the complainant.  The further case of the complainant is that without getting any alternative he made a complain through customer complain no.1800-1022344 and one Md. Imran had received the said call and assured the complainant that the handset will be repaired very soon and after getting such assurance the complainant on 08.12.2015 again visited the office of OP No.2 but with no result and on the same day the complainant received one mail from OP No.1 where it has been stated to share with them so that they can escalate the matter to the concern team.  The complainant again visited to OP No.2 almost regularly but ultimately he did not get back the mobile handset after necessary repairment.  In this case, we find that the mobile handset which was purchased by the complainant was manufactured by Motorola Mobility India and we again find that there were several correspondences made between the complainant and the Motorola Mobility India regarding the disputed handset.  Complainant though claimed that OP No.1 over customer complain number made correspondences with him but from the papers furnished on the side of the complainant we do not find any iota of document to hold that complainant informed the matter in respect of dispute of the mobile handset to the OP No.1 or there was any correspondence between the complainant and the OP No.1 in this regard at any point of time.  The customer complain number 1800-1022344 through which the complainuant made corrspondences is the Motorola Toll Free number of Motorola Mobility India and it is not the customer complain number of OP No.1 and we find that all correspondences were made by the complainant with Motorola Mobility India who is the actual manufacturer of the disputed mobile handset.

The case of the complainant is that due to some manufacturing defect the mobile handset of the complainant became dead.  The Customer Unit Receipt issued by OP No.2, Service Centre also shows that the customer reported problem - ‘set dead’.  So, for proper redress complainant was required to implead the manufacturer of the disputed mobile handset i.e., Motorola Mobility India as Opposite Party or one of the OPs.  But the complainant has failed to implead the manufacturer of the mobile handset as necessary party in this case.  On the other hand the complainant made the OP No.1 and OP No.2 as party but we find that OP No.1 is not the manufacturer.  OP No.1 used to resale the product of other concern through website Flipkart.com.  For want of impleading the manufacturer as necessary party the case cannot stand.  On the other hand, it may be said that the instant case fails for non-joinder of necessary party.   

In the result, the case fails.        

Hence, it is

                     O R D E R E D

that the Consumer Case No.8/S/2016 is dismissed on contest against the OPs but without cost.

Let copies of this judgment be supplied to the parties free of cost.