DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Thursday the 25^th day of April 2024

CC.389/2017

Complainant

Praseel. A.S,

Vasudev (HO),

Pottammal Thazham,

Kootoli.P.O, Calicut – 16

(By Adv. Sri. Athul Prabhakar)

Opposite Parties

1.               Manager,

Snapdeal, Srinivasa Towers,

                       1^st Floor, No.5, Above Lanson Toyota,

Teynampett, Cenotaph Road,

Chennai, Tamil Nadu – 600018

(By Adv. Sri. Jithin Krishna)

2.               The Manager,

MOBNET Mobiles, 13/506, C16,

                        3^rd Floor, Yamuna Arcade,

Kallai Road, Palayam,

Calicut - 673002

3.               The Manager,

Customer Service,

HTC Mobile Phones,

APAC Headquarters, HTC Tower No.41,

GST Road, Guindy,

Chennai - 600032

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT              

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The complainant is a medical representative. On 22/08/2016 the complainant purchased a HTC Desire 728 LTE mobile phone manufactured by the third opposite party from the first opposite party by online shopping paying a total amount of Rs. 13,035/- using credit card. But in the first month itself, the mobile phone was having serious battery draining issues. Then he approached the second opposite party who informed that it would take more than 10 to 15 days to check the complaint. But as the complainant needed to update his employment report through mobile application every day, he was not able to hand over the phone to the second opposite party.
3. On 12/06/2017, while he was talking to one of his clients, the mobile phone got switched off automatically, subsequent to which, it gets restarted on each and every call and that the issue with the phone had persisted. Immediately he approached the second opposite party and entrusted the hand set for rectifying the complaint. After 10 to 15 days the hand set was returned to him.  On 25/07/2017 the same complaint repeated and it was reported to the second opposite party. Again the hand set was kept for more than ten days in the custody of the second opposite party and thereafter the same was returned to him stating that the defect had been completely rectified. But on 27/09/2017, the mobile phone again turned off while calling. Thereafter he sent an email to the Customer Service Head of the third opposite party requested for replacement of  the mobile phone as the phone supplied to him was of inferior quality and as there was deficiency of service. But they were reluctant to replace the phone or to rectify the defects.  The complainant was forced to buy another mobile phone paying Rs. 10,000/-. The total loss that has been suffered by the complainant due to the deficiency of service of the opposite parties is Rs. 38,035/-. Hence the complaint seeking to realise the amount of Rs. 38,035/- from the opposite parties along with Rs. 10,000/-  as compensation for the mental agony and hardship suffered.
4. The first opposite party has entered appearance and filed written version. The second and third opposite parties were set ex-parte.
5. According to the first opposite party, the product was sold and advertised by the second opposite party. The first opposite party is not engaged in the sale of any product on its own, but merely facilitates various sellers to list their product for sale on its online platform. The first opposite party is neither a trader nor a service provider as defined under the Consumer Protection Act, 1986 and there does not exist any privity of contract between the complainant and the first opposite party. The first opposite party has not charged any amount from the complainant for using the services available on online market places. The complainant is not a consumer of the first opposite party. It is the seller only who is to be held liable for any alleged sale of defective product, if any. The first opposite party merely acts as an intermediary between the buyer and the seller and assumes no liability for the alleged sale or supply of defective product, if found any. There is no cause of action against the first opposite party. There was no deficiency of service on the part of the first opposite party. No relief  as prayed for can be granted against the first opposite party in this case.  With the above contentions, the first opposite party prays for dismissal of the complaint.
6. The points that arise for determination in this complaint are;

1. Whether there was any deficiency of service on the part of the opposite parties, as alleged?
2. Reliefs and costs.

7. Evidence consists of oral evidence of PW 1 and Exts A1 to A4 on the side of the complainant. PW1 has not cross examined by the contesting first opposite party and did not adduce any evidence. 
8. Heard.
9. Point No.1:-  The complainant has approached this Commission with a grievance that the HTC Desire 728 LTE mobile handset sold to him was continuously showing complaints and the opposite parties failed to rectify the defects or to replace the defective handset with a new one. It is also the grievance of the complainant that the second opposite party has retained the mobile handset entrusted to them for repairs and has not yet returned the same.
10. In order to substantiate his case, the complainant got himself examined as PW1 and he has filed proof affidavit and deposed in terms of the averments in the complainant and in support of the claim. Ext A1 is the computer printout of the email confirming the order, Ext A2 is the copy of the email, Ext A3 is the computer printout of the reply email and Ext A4 is the copy of the service report dated 27/09/2017.     
11.  The second and third opposite parties have not turned up to file version or to contest the case. The first opposite party, though filed written version, has not cross examined PW1. Thus the evidence of PW1 stands unchallenged. There is no reason to disbelieve PW1. The evidence of PW1 shows that the mobile handset was repeatedly showing complaints during the warranty period and the opposite parties have failed to address the concerns of the complainant over the mobile handset properly. The handset purchased by him paying Rs. 13,035/- did not serve the purpose it was intended. It is also evident that the handset entrusted to the second opposite party for repairs on 27/09/2017 as per Ext A4 is not yet returned to the complainant.  The notice issued from this Commission to produce the handset pursuant to the application filed by the complainant was also not responded by the second opposite party. The second opposite party has no right to retain the mobile handset without returning it to the complainant. The opposite parties have not produced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on the side of the complainant. There is no contra evidence to disprove the claim. The case of the complainant as against the 2^nd and 3^rd opposite parties stands proved through the testimony of PW1 and Exts A1 to A4.
12. The second and third opposite parties are bound to refund the price of the mobile handset to the complainant. Undoubtedly, the complainant was deprived of the facility of using the handset which is still in the custody of the second opposite party. The act  of the second and third opposite parties has resulted in gross mental agony, hardship and inconvenience to the complainant, for which, he is entitled to be compensated adequately.  Considering the entire facts and circumstances, we are of the view that a sum of Rs. 10,000/- will be reasonable compensation in this case. The opposite parties 2 and 3 are jointly and severally liable.
13. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                  a)  CC.389/2017 is allowed in part.

b) The second and third opposite parties are hereby directed to  refund the price of the mobile handset amounting to Rs. 13,035/- (Rupees thirteen thousand and thirty five only) to the complainant.

c) The opposite parties 2 and 3 are directed to pay a sum of  Rs. 10,000/- (Rupees ten thousand only) as compensation to the complainant for the mental agony and hardship suffered.

d) The payment as afore stated  shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 13,035/- shall carry an interest of  9% per annum from the date of this order till actual payment.

e)  The liability of the second and third opposite parties shall be joint and several.

f) The first opposite party is exonerated.  

g) No order as to costs.

Pronounced in open Commission on this, the 25^th   day of April, 2024.

Date of Filing: 26.10.2017

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                                    PRESIDENT                                             MEMBER                                       MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Computer printout of the email confirming the order.

Ext.A2 – Copy of the email.

Ext.A3 – Computer printout of the reply email.

Ext.A4 – Copy of the service report dated 27/09/2017.     

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1 - Praseel. A.S, (Complainant)

                                  Sd/-                                                               Sd/-                                                         Sd/-

                          PRESIDENT                                                  MEMBER                                              MEMBER

True Copy,      

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                                                         Assistant Registrar.