Orissa

Cuttak

CC/68/2017

Durga Prasad Acharya - Complainant(s)

Versus

The Managing Director,Flipcart Internet Private Limited - Opp.Party(s)

B P Bal

30 Nov 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.68/2017

      Durga Prasad Acharya,

      At:Municipal Qt. No.2R/3,Jagannath Lane,

      P.S:Badambadi,Dist:Cuttack.                                                      … Complainant.

 

                                Vrs.

 

  1. The Managing Director

Flipkart Internet Private Limited,

Corporate Office

At:Vaishnavi Summit, Ground Floor,

7th Main 80 Feet Road,

3rd Block,Koramangala Industrial Layout,

Bangalore-560034,Karnataka,India.

 

  1. WS Retail Services Pvt. Ltd.,

Ozone Manay Tech

Park No.56/18, “B” Block,

9th Floor,Garvebhavipalya,Hosur Road,

Bangalore,Karnataka-560068.

 

  1. The Branch Head

Channel-4(Samsung Authorized Service Center),

Plot No.2072/3595,Opp JMG Shop,

Cuttack,Odisha.

 

  1. The Care Manager,

Samsung India Electronics Pvt. Ltd.,

Samsung Customer Satisfaction,

2nd Floor,Tower-C,Vipul Tech Square,

Sector-43,Golf Corse Road,

Gurgaon,Haryana-122002..                                                               … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   19.05.2017

Date of Order: 30.11.2017.

 

For the complainant:               Sri B.P.Bal,Adv. & Associates.

For the O.P No.1 & 2 :             Sri B.P.Mohanty,Advocate & Associates.

For O.Ps No 3:                               None.

For O.P No.4:                           Sri D.K.Nayak,Adv. & Associates.

 

Sri Bichitra Nanda Tripathy,Member.

                The case is against deficiency in service on the part of O.Ps.

  1. Shortly the complainant purchased a Mobile set (Model No.Samsung-J-7-2016) from O.P No.1 through O.P No.2 who is the authorized dealer on 13.05.2016 for a price of Rs.15,988/-(Annexure-1).  As per the warranty conditions, the product has warranty for12 months from the date of purchase.  The said set gave some problems i.e. “user time set auto off, use time set heat” for which the complainant brought such problems to  thenotice of O.P No.3 (the authorized service centre) on 10.03.2017.  The set was handed over to O.P No.3 and O.P.3 issued service receipt for the purpose.(Annexure-2).  The complainant received the set on 11.03.2017  but again the same problem restarted.  On 24.04.2017 the complainant contacted O.P No.3 and requested to change the defective set with a new one but O.P No.3 did not take any appropriate step.  Being disgusted with the situation the complainant issued a legal notice on O.Ps on 26.04.2017 and requested them to change this defective set with a new one.(Annexure-3).  But it yielded no result.  Finding no other way, the complainant has taken shelter under this Hon’ble Forum.  He has prayed to direct the O.Ps to refund Rs.15,988/- towards cost of the set along with interest @ 12% per annum from the date of purchase till realization.  He has also claimed a sum of Rs.35,000/- as compensation towards mental agony and cost of litigation.
  2. O.P.No.1 vide its written version dt.08.11.2017 has intimated that O.P No.1 provides online marketplace platform/technology and/or other mechanism/services to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods, by and between respective buyers and sellers and enables them to deal in various categories of goods including but not limited to mobiles, camera,computers,watches,clothes,footwear,healthcare, personal products and home appliances and electronics etc.  Once a buyer accepts the offer of sale of the products made by the third party seller on the Flipkart Platform, the seller is intimated electronically and required to ensure that the product is made available and delivered in accordance to the delivery terms as per the terms of sale displayed by the seller on the Flipkart platform.

The business of the O.P No.1 falls within the definition of an “intermediary” under Section 2(1)(w) of the Information Technology Act,2000, which is reproduced hereunder.

“intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.”

The O.P. No.1 is protected by the provisions of Section 79 of the Information Technology Act,2000, which is reproduced hereunder:

“79……

  1. Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data or communication link made available or hosted by him.
  2. The provisions of sub-section (1) shall apply if-
  1. the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

 

  1. the intermediary does not:-
  1. initiate the transmission,
  2. select the receiver of the transmission, and
  3. select or modify the information contained in the transmission;

c)     The intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

O.P No.1 is neither a ‘trader’ nor a ‘service provider’ and there does not exist any privity of contract between the complainant and O.P No.1 and therefore, it is submitted that the complainant has wrongly arrayed O.P.1 in the present complaint.  No relief is also sought against O.P.1.  The product purchased by the complainant is neither sold by O.P No.1 nor O.P No.1  provides warranty of the product sold by an independent seller through Flipkart platform (O.P.1) who acts as an intermediary only.  The O.P No.1 is intermediary and not the manufacturer/authorized service centre of the product sold to the complainant and is in no way liable for defect in the goods if found any.  The responsibility to provide after sale service lies upon O.P No.3 and 4 under manufacturers’ warranty clause and not with O.P No.1.

3.            O.P No.2 vide their written version dt.26.09.2017 has intimated that O.P No.2 carries the business of sale of goods manufactured/produced by others.  It does not sale any goods manufactured or produced by itself.  The products sold by O.P No.2 carry manufacturer’s warranty.  There is no shortage of supply or deficiency in service on the part of O.P No.2 since O.P No.2 is not the manufacturer/authorized service centre of the product, rather O.P No.4 & 3 are the manufacturer and service provider in the present case.   Since the product was under warranty period provided by the manufacturer, it is manufacturer who is responsible for repair/replacement of the product or refund the price of the product.  The complainant has used the product in issue for more than 8 months and after that has lodged complaint with the authorized service centre of the manufacturer.  Therefore, the 30 days replacement warranty provided by the seller (O.P No.2) had also stands lapsed on an around 12.06.016.  The product has developed alleged problems after expiry of replacement period provided by O.P No.2, hence such defects are to be looked after by O.P.3 & O.P.4 i.e. the authorized service centre and manufacturer respectively.

4.            O.P No.4 although entered appearance neither participated in the hearing nor filed any version.  O.P No.3 neither participated in the hearing nor filed any version.

5.            We have gone through the case records in details.  It is leant that the complainant purchased one Samsung hand set through O.P.1 from O.P No.2 on 13.05.2016 for Rs.15,988/-.  The said mobile was given at service centre on 10.03.2017 for the problem “use time set auto off, use time set heat”.  After a month on 24.04.2017 again the same problem reoccurred for which the complainant again contacted the service engineer who replied that this set cannot be rectified and it was within the warranty period.  The complainant requested the service centre to replace the set with a new one but the service in-charge refused to do so.  A legal notice was served on the O.Ps on 26.4.2017 and it yielded no result.  O.P No.1 & O.P No.2 have intimated that they are not the manufacturers for the product and also do not provide warranty for the product.  O.P No.1 is the intermediary between the buyer and the seller who supplies the articles to the buyer as ordered by the buyer.  O.P No.2 is the retail trader.  O.P No.3 is the authorized service centre  who has failed to repair the hand set properly  whereas O.P No.4 is the manufacturer and has given warranty for the said handset.  Neither O.P No.3 nor O.P N.4 have participated on the hearing nor have submitted any written version.  Thus we conclude that O.P No.3 & O.P No.4 have nothing to say in their defense.  We are constrained to accept the uncontroverted statement of the complainant as alleged against O.P No.3 & O.P No.4.

                                                                                                 ORDER

Basing on the facts and circumstances, we allow the case against O.P No.3 & 4 exparte.  O.P No.4 will refund a sum of Rs.15,988/- towards cost of the mobile hand set and will also pay a sum of Rs.10,000/- as compensation towards mental agony and harassment.  O.P.3 will pay a sum of Rs.5000/- towards cost of litigation.  At the time of paying the above amount (Rs.25,988/- by O.P No.4 & Rs.5000/- by O.P No.3)   to the complainant O.P No.3 may collect the defective hand set from the complainant.  All above payments shall be made to the complainant within 45 days of receipt of this order, failing which the complainant shall at liberty to take shelter of this Forum as per C.P.Act,1986.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 30th day of November,2017 under the seal and signature of this Forum.

 

   (Sri B.N.Tripathy )

                                                                                                         Member.

 

                                                                                                                  

                                                                                                    (  Sri D.C.Barik )

                                                                                                          President.

 

                                                                                                      (Smt. Sarmistha Nath) 

                                                                                                 Member(W).

 

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