BEFORE THE DISTRICT CONSUMER

DISPUTES REDRESSAL FORUM, DHARWAD.

COMPLAINT NO.207/2016

Date: 21^stday of June 2017.

P r e s e n t:     

                                                Smt.C.H.SamiunnisaAbrar, B.A., LLB   :  President 

Sri.B.S.Keri, B.A., LLB (Spl)            :   Member

Complainant/s:          1.      Shri. Abbasali S/o Badsha Chaparband

                                             Age:Major, Occ: Pensioner

                                             R/o Gandhinagar, Dharwad.

                                            (By Sri.R.S.Kazi, Adv.)

V/s

Opposite Party/ies:   1.      The W.S. Retail Service Pvt. Ltd.,

                                           (Authorised Dealer and Seller) Ozone

                                           Manaya Tech, Park No.56/18, B’ Block 

                                           9^th Floor, Garvebhavipalya, Hosur Road

                                            Bangalore- 560068

                      2.      Shri Shakati Service (Nokia Care), No.7,

                               Laxmi Ramkrishna Square, Opposite Laxmi Mall,

                              Coen Road, Hubli-580020.

                              (Absent)

                    3.      The Flip cart, No.447/C, 1^st Floor,
                             1^st Cross, 12 Main, Kormangala, 4^th Block Bangalore-560034.

                              By its Authorized Officer.

                                         (By Sri.P.S.Kalasur, Adv. for OP1 and OP3)

                                                                                               -::O R D E R::-

BY: SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT.

1.     The complainant has filed this complaint claiming for a direction to OPs to replace the mobile set with a new or else to pay of Rs.10,999/- the cost price of the mobile in question and also to pay Rs.10,000/- as compensation for causing harassment and mental agony and to grant such other reliefs.

-::Brief facts of the case are as under::-

2.     The complainant purchased the Mobile Set in question from the OP1 through online. The details of the Hand set are as under:

                Model                       :       LET 1 t

                No.                           :       8690872359934

                IME No.                    :       869087023859926

                Purchase Date         :       08.03.2016

                Purchase Amount    :       10,999/-

                Hand Set                  :       VSO5813

3.     The Complainant purchased the Hand-Set in question through online on 08.03.2016. The Hand set in question was not functioning properly, within couple of months it started giving trouble, as touch screen was not working, the Battery was not supporting, the incoming sound was defective, totally the set in question was defective set which has been sold to the complainant.

4.     The complainant being constrained approach the Service Centre i.e. the OP No.2 which is the Authorized Service Center of Op No.1on 03.06.2016 as per the instruction of Op No.2 complainant approach the Op No.2 after 15 days and issued the job sheet No.284 dated 03.06.2016, surprisingly the OP2 asked Rs,4,500/- for replacement, After some time Op drop the demand and told that the mobile is in within a warranty period.

5.     Further Complainant submits that he approached the Op No.2 for replacement of mobile but Op No.2 not replaced the same , hence Complainant issued the legal notice to Op No.1 and 2 and the said notice have been received by the Op’s the Op No.2 did not replied to the said notice and the Op No.1 replied belatedly.

6.     Hence, the complainant submits that Op’s are practicing unfair trade and pray to order against the Op’s for replacement of mobile or price of the mobile and other reliefs.

Brief facts of the Written Version filed by the OP No.1

7.  The OP No.1 denies all the allegations, contents and statements of the complaint which are inconsistent stated herein below.

The complainant has suppressed true and material facts from this Hon’ble Forum and not approached with clean hands.

8.     The OP No.1 is registered seller on the website “flipkart.com” and sells products of others through the website.  The OP No.1 has acquired good market reputation for its range of products offered and for its exceptional customer support. Op No.1 is not engaged in sale of any goods manufactured or produced by its own.  But, OP No.1 is engaged in selling of goods manufactured and produced by others.

9.     The OP No.1 submits that present complaint is devoid of any merits and the averments made in the complaint are baseless and do not cover the complete facts of the case and are made only with the intentions to defame OP No.1 and extorting money illegally. The complaint is liable to be dismissed on this ground alone.

10.  That it is reiterated that OP No.1 is an online reseller registered on ‘flipkart.com. Op No.1 is not the manufacturer but an online reseller and the products sold by OP No.1 carries warranty issued/provided by the respective manufactures against manufacturing defects subject to the terms and conditions determined by the manufactures only.

11.   That it is pertinent to mention that the present complaint pertains to the product in issue having alleged defects and after sale service not being provided by the manufacturer or its authorized service center within the warranty period.  It is submitted that it is the manufacturer of the product who is liable to provide after sale services to its customers under manufacturer’s warranty clause.  Hence, the manufacturer in the present complaint is the necessary party for justified trial of the complaint.  But, the complainant has failed to implead the manufacturer as an OP in the present complaint and thus, the present complaint is liable to be dismissed on the ground of non-joinder of necessary party. 

12.     It is submitted that, it is not the case of selling defective product and the same is evident from the fact that the complainant had used the product in issue for almost 3 months without any problem from the date of purchase.  The 30 days replacement warranty provided by the seller OP No.1 also stands lapsed on or around 06.04.2016.  It is only at the beginning of June-2016 the product had developed alleged problems and the complainant took it to the Authorized Service Center i.e. OP No.2. It is therefore most respectfully submitted that the duty to remove the defect in the product is on the manufacturer and Authorized Service Center of manufacturer. Neither shortage of supply nor delay in delivery to be committed by the Op No.1 has been alleged by the complainant.  It is also pertinent to mention here that it is the settled case that the reseller of Op No.1 in this case cannot be held liable for the defect in goods.  Hence, by no stretch of imagination, it can be said that the Op No.1 has been deficient in service or involved in unfair trade practice.  In view of the aforementioned, it is evident that the Op No.1 has not caused any mental agony or otherwise harassment to the complainant and hence, the complainant is not entitled to claim any relief or compensation from Op No.1.

13.  It is further submitted that the complainant has not approached this Hon’ble Forum with clean hands.  The Op No.1 has no role to play in providing after sale service as the same is the sole responsibility of the manufacturer and its Authorized Service Center, as the case may be under the manufacturer’s warranty clause.  Hence, the Op No.1 is not liable for refund of the cost mobile phone/replacement of the handset or paying any compensation to the complainant as alleged in the complaint on these grounds Prayed for dismissal of the complaint against OP No.1.

Brief facts of the Written Version filed by the OP No.3

14.     That the OP No.3 only acts as an intermediary through its web interface www.flipkart.com and provides a medium to various sellers all over India to offer for sale and sell their product(s) to the users of the Flipkart platform.  It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders.  The Op No.3 does not directly or indirectly sells any products on Flipkart platform.  Rather, all the products on Flipkart platform are sold by third party sellers, who avail of the online marketplace services provided by the Op No.3 on terms decided by the respective sellers only.  The directly raise invoices to the end customers for the products sold and bear all contractual risks.  The customers purchasing products from such sellers directly make the payments for their purchases either on a pre-paid basis (net banking/credit card/debit card) or cash on delivery basis.  

15.  That the Op No.3 submits that the complainant doesn’t fall under the category consumer of the Op No.3 under the provisions of the Consumer Protections Act as the Op No.3 is neither a ‘trader’ nor a ‘service provider’ and there does not exist any privacy of contract between the complainant and the Op No.3 and therefore, it is submitted that the complainant has wrongly arrayed Op No.3 in the present complaint and hence the complaint is bad for miss-joinder of party.  It is submitted that the above complaint is totally false, frivolous and vexatious and has been filed with malafide intentions of causing harassment to the Op No.3 The averments made in the complaint are baseless and are made only with the intentions to defame the Op No.3 and extorting money in illegal manner. The complaint is liable to be dismissed on this ground alone. 

16.     That the Op No.3 has not charged any amount from the complainant for using the services available on online marketplace Flipkart Platform.  It is submitted that the complainant does not fall within the ambit of the definition of the term “Consumer’’ as provided under Section 2(1) (d) of the Consumer Protection Act, 1986. Section 2 (1) (d) defines ‘Consumer’. In accordance with the definition of the consumer, exchange of consideration between the parties is a pre-requisite for a consumer dispute.  Since the answering OP No.3 has not charged any amount from the complainant for using the Flipkart Platform of the answering OP No.3.The complainant does not become a consumer qua the answering OP No.3 with respect to the product. 

17.   That the Op No.3 submits that role/involvement of Op No.3 is as an intermediary only, i.e. to provide online platform to facilitate the whole transaction of sale and purchase of goods by the respective independent sellers and buyers on its Flipkart Platform.  The Service of OP No.3 are similar to a shopping mall where various shops are rented out to different sellers who independently carryout sale proceedings with the customer/visitors of the shopping mall and in case of any defect in the goods sold by such shop owners/sellers in the shopping mall. It is the shop owner/seller, who is held liable for the consequences and not the owner of the shopping mall where such shops are situated.  In the same way, the OP No.3 is not involved in the entire transaction except for providing the online platform for the transaction (s) and the concerned contract(s) of sale and purchase is between the seller and buyer (here complainant) only and hence this OP No.3 shall not be held liable for any liability owing to such contract. 

18.   That the OP No.3 reiterates that the complainant has purchased the product from one of the seller listed on the Flipkart Platform, which is also evidenced from the copy of seller tax invoice which clearly states that the order is “ordered through Flipkart’’.  This OP No.3 is not involved in the entire transaction between the seller and complainant.  There is no Privity of contract between the complainant and the OP No.1 and, here, OP No.3 doesn’t render any liability arising out of such contract. 

19.   That it is submitted that the grievance of the complainant is with respect to the alleged defects in the goods and after sale services center engaged by the Manufacturer under Manufacturer’s Warranty clause.  It is most respectfully submitted that the grievance of the complainant should have been against the manufacturer, whom the complainant chose not array as necessary OP No.3 to this complaint for the reasons best known to the complainant and the Authorized Service Center appointed by the Manufacturer i.e. OP No.2 for not providing after sale services to its customers.  The Op No.3, being mere an intermediary and not the seller/manufacturer/Authorized Service Center of the defect in the goods, if found any.  Hence, in view of the above mentioned submissions, there is no cause of action against the answering OP No.3 it is also pertinent to note that OP No.3 is not owned/controlled/associated with Op No.1 or 2 in the present complaint.

20.    It is further submitted that the relief claimed under the present complaint is untenable and unreasonable and the Op No.3 under the circumstances and for the reasons stated above, it is not liable to pay any compensation to the complainant. Complaint on these grounds prayed for dismissal of the complaint against OP No.3.

21.   The Complainant has filed his affidavit and filed 5 documents which are marked as EX C1 to C5.

                 THe DOCUMENTS ARE AS under;

On the other hand OP No.1 to 3 filed respective affidavits.

22.    On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudications are as follows:

Our Answer to the above points are:-

Point No.1 – Affirmative,

Point No.2 – Partly Affirmative,

Point No.3 – As per the final order.

                                                                                R E A S O N S

    23. POINT NO.1 and 2:  Since both the points are inter-link and identical, we proceed with both the points together.

     24.    The Complainant purchased a mobile through online on 08.03.2016. As per the Complainant, the mobile set in question was not functioning properly and within a couple of month started giving trouble such as touch screen was not working, battery was not supporting and other problems. Constrained about this, Complainant approached OP No.2 who is the Authorized Service Centre on 03.06.2016 and submits that after receiving the mobile set, OP No.2 issued Job Card on 03.06.2016 and demanded for Rs.4,500/- for replacement then again OP No.2 stated that the mobile in question is well within the warranty period and drop the demand made by the OP No.2. But, OP No.2 had not replaced the mobile till now the best reason known to him. As such Complainant issued a legal notice to OP No.1 to 3, but OP NO.2 did not replied. On the other hand, OP NO.1 replied belatedly and untenably. The cost of mobile was Rs.10,999/-. Hence, Complainant prayed that the business has been made through these Ops and further Complainant submits that there is no manufacturer address anywhere in the box or else in an Invoice issued by the Ops. Since these Ops acted as an Agents and acted on behalf of the Manufacturer. Hence, these Ops are liable to replace the new mobile or else to pay the price of the mobile along with cost and expenses incurred to the Complainant. On the other hand, OP No.1 to 3 denied all the allegations and said that OP No.1 is carrying the business of sale of goods. But he is not a manufacturer. OP No.1 is a registered seller on the website flipkart.com and sell product through the website and he has a good reputation for his range of products offered and exceptional customer support. The allegation of the Complainant is false, all the intermediator between the parties are not liable. Hence, they are not responsible for the defective mobile.

25.         We have heard the learned counsel of the parties, carefully gone through the file, the main point of argument put forth on behalf of OP No.1 to 3 is that they are the intermediators, advertised by various manufacturers, trade organizations, shop etc. These Ops are only facilitators and as such they are not liable for any manufacturing defect for the goods purchased by the Complainant.  

26.         The learned counsel for the Complainant drawn our attention towards the Invoice i.e. EX C1 and stated that there is no particular manufacturer address in this Invoice moreover only the address shown in the bill is OP No.1’s address even in the box of mobile also there is no address shown. Moreover, further advocate for the Complainant submits that it is clear that if these Ops are intermidaitors for Consumer and Manufacturer there should have known the address of the manufacturer. Till today they have not furnished the address of the manufacturer. Then it is clear that merely saying that they are not responsible for the defective mobile. Hence we rely upon the citation cited in (2010) CJ 1024 (Chandi) Union Territory Consumer Disputes Redressal Commission, Chandigarh. The important points are hereunder:

      “Consumer Protection Act, 1986 – Sections 2 (1) (d), 2 (1) (g), 2 (1) (o), 2 (1) ® 14 (1) (d), 15 and 17 – Mobile phone – Sale through internet – Supply of defective mobile set – Appellant directed by District Forum to refund price of mobile set along with compensation of Rs.15,000/- and cost of Rs.5,000/- - Appellants were actively participating in whole transaction and acted as agents of manufacturer, whose service were availed by Complainant for purchasing mobile set and paid amount to them – Being agents of manufacturer, they were also equally liable for acts of their principal – District Forum rightly held appellants liable equally with other Ops in refunding price of mobile set along with compensation and costs – Appeal dismissed.”

In this above citation, the Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh observed that only giving advertisement about the product and participating in the transaction of sale of mobile sold to the parties. These Ops are actually participated in the transaction. Moreover, these Ops have accepted the price of the mobile set from the customer and ultimately served the defective mobile set. Hence, the so called mediators also held responsible for the same. Such being the fact it is clear that if they have not furnished the proper manufacturer address, the Ops are held liable. Since Complainant is liable for compensation. Hence, we answer Point No.1 in affirmative and point NO.2 in partly affirmative.

27. POINT NO.3:  For the reasons and discussion made above and finding on the above points, we proceed to pass following: 

//ORDER//

1. This Complaint is partly allowed with costs.
2. The OPs are directed to pay amount of Rs.10,999/- (Rupees ten thousand nine hundred and ninety nine) to the complainant.
3. Further, OPs are directed to pay a compensation of Rs.1,500/- (Rupees one thousand five hundred) towards mental agony and Rs.500/- (Rupees five hundred) towards cost of litigation.         
4. Further, OPs are directed to comply this Order within thirty days from the date of this Order, failing which OPs have to pay interest at 6% p.a. on Rs.10,999/- from the date of order, till realization.
5. Send the copies of this Order to the parties free of cost.