2. After service of notice, the Opposite Parties appeared through counsel and filed written version taking preliminary objections denying all the allegations, contents and statement of the complainant which are inconsistent with their written version; they objected that the complainant has not approached this forum with clean hands; opposite parties are registered re-sellers on website “Flipkart.com” and sell products of other manufacturers traders etc. under their respective trade marks through website and they are not engaged in selling of any goods manufactured or produced on its own and they have separate and distinct identity than the manufacturer or its service centre and complainant has not impleaded the manufacturer or its service centre into array of parties; the complaint is false, frivolous and vexatious; no cause of action lies against them; as a goodwill gesture they provide 30 (thirty) days replacement warranty to its customers. There has been no dispute contemplated under the Consumer Protection Act, 1986 between the parties. The complaint is liable to be dismissed for misjoinder of necessary party; there is no privity of contract between the complainant and them; they are merely a re-seller, registered on ‘Flipkart.com’ and the product bought by the complainant carry warranty issued/provided by the respective manufacturer against manufacturing defects subject to the terms and conditions determined by the manufacturers only. On merits also, the opposite parties denied all the allegations made against them and lastly prayed for the dismissal of complaint with costs.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-3.
4. Evidence of the Opposite Parties consist affidavit of Ms. Swati Singh their authorised signatory Ex.OP-1/1.
5. We have heard the arguments and also gone through the file of the case.
6. The complainant has argued that he is consumer of the OPs as he has purchased the mobile phone by paying consideration to OP No.2. After 4-5 months of its purchase by the complainant, the handset started giving problems. The complainant requested the OPs to replace the handset or repair but the OPs did nothing which caused lot of mental tension and harassment to the complainant. Thus, as per the complainant the Ops have indulged in unfair trade practice and are deficient in providing after sale services to the complainant.
7. On the other hand, the counsel for the OPs has vehemently denied any unfair trade practice and deficiency in service on their part. It is argued that the OPs are engaged in selling of goods and they are not manufacturer. The complainant has not impleaded the manufacturer as a party. However, the OPs as a goodwill gesture provide 30 days replacement warranty. If there is any defect in the mobile, the manufacturer is responsible for the same.
8. The main objection taken by the Opposite Parties is that complainant is not their consumer as they have not manufactured the product but only resell the product as Opposite Parties are registered resellers on the website ‘Flipkat.com’ and sells products of other manufacturers, traders etc. under their respective Trade Marks through the website. The Opposite Parties further submitted that as a goodwill gesture they provide 30 (thirty) days replacement warranty to its customers. Further Opposite Parties took stand that there has been no dispute contemplated under the Consumer Protection Act, 1986 between the complainant and Opposite Parties. Section 2 (d) of the Consumer Protection Act, 1986 (as amended upto date) states that ‘consumer’ means any person who buys goods or avails services for consideration. It does not make any difference whether goods are bought from manufacturer or reseller. So it can safely be concluded that complainant is consumer of Opposite Party No.2 i.e. Ware House Address, Khasra No.435, Road No.04, Lal Doara Ext. Mahipalpur, Delhi, India, as he had not only bought goods from it but also entitle to receive after sale service from Opposite Party No.2. Opposite Party No.2 not only sell goods manufactured by others but also provide service of its delivery to the consumers as well as 30 (thirty) days replacement warranty to its customers. In the present complaint, complainant is consumer of the Opposite Party No.2 as he has purchased product from it for consideration and he is entitled to avail after sale services from it. There is no privity of contract between the manufacturer and the consumer. Consumer has purchased it from Opposite Party No.2 for consideration as well as availed services of Opposite Party No.2.
9. In such a situation, Opposite Party No.2 is duty bound to provide after sale service for which it is held deficient in providing after sale service to the complainant. Opposite Party No.2 though well aware of manufacturer though took objection that manufacturer is not made a party yet neither disclosed name and address of the manufacturer nor gave any application asking complainant to implead manufacturer as necessary party in the array of the parties. So Opposite Party No.2 remained deficient in providing after sale service/information/education to consumer and, therefore, directed to put forward the claim of complainant before the concerned manufacturer and get it resolved within 30 days failing which Opposite Party No.2 liable to pay Rs.7,000/- to the consumer for not providing after sale service/information and education to the complainant.
The arguments on the complaint were heard on 02.08.2016and the order was reserved. Now the order be communicated to the parties. The reason for not pronouncing the order within 15 days is that 13th August to 15th August, 2016 were Govt. holidays. Thereafter, I was on leave from 16th August to 18th August, 2016. Then Ld. President was on duty to District Forum, Fatehgarh Sahib. Again there were holidays on 20th August and 21st August, 2016. So today, order is pronounced. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced.
August 22, 2016. (A.P.S. Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
