DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.791 of 2017
Date of institution: 19.09.2017 Date of decision : 21.03.2018
Balwinder Singh son of Pal Singh, permanent resident of village Naraino, PO Bhagdana, Tehsil and District Fatehgarh Sahib, presently residing at K.No.86, Phase-6, Mohali.
…….Complainant
Vs
1. Xiaomi Exclusive Service Centre, SCF 118, First Floor, Phase 3B2, Mohali through its Incharge/M.D.
2. Xiaomi India, c/o Ikeva Business Centre, 8th Floor, Umay Business Bay Tower-1, Cessna Business Park, Kadubeesanahalli, Marathahalli, Sarhapur, Outer Ring Road, Bangalore through its Incharge/MD.
3. M/s. Flipkart,com 447/B, 1st A Cross, 12th Main, 4th Block, Opposite BSNL Telephone Exchange, Koramangala, Bangalore -560034, Karnataka, India through its Managing Director/Chairman/Incharge.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Shri Kulwinder Singh, counsel for complainant.
OP No.1 and 2 ex-parte.
Shri Deep Singh, counsel for OP No.3.
Order by :- Shri G.K. Dhir, President.
Order
Complainant purchased mobile hand set of Redmi 3S 4G 2g RAM 16GB RAM Gold VX 46247 for worth of Rs.6,999/- through OP No.3’s website on 09.11.2016. Purchased mobile handset carries warranty of one year. On 16.08.2017, the hand set screen started showing black spots. Even messages and contact numbers were not clearly visible on the screen. Whole of the screen used to go blank slowly. Complainant visited OP No.1, the service centre of OP No.2 for repair, but officials of OP No.1 refused to repair the hand set on the ground that all four corners are damaged. It is claimed that there is no physical damage to the hand set but there were internal issues in the hand set. Non providing of service regarding repair alleged to be an act of deficiency in service on part of OP No.1 and 2. So this complaint filed for seeking refund of the price amount of Rs.6,999/- with compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.15,000/-.
2. OP No.1 and 2 are exparte in this case, but OP No.3 filed reply by claiming that the complaint has been filed by suppressing material facts, due to which same is not maintainable. Moreover, it is claimed that OP No.3 owns web portal and the functioning of it is as of intermediary for providing facility over internet through its website for entering transactions between sellers and buyers. OP No.3 just provides an electronic platform as an intermediary for facilitating the sale transactions between independent third party sellers and independent end customers and as such virtually there remains no privity of contract in matters of sale purchase transactions between OP No.3 and the purchasers. Even as per Section 2 (1) (w) of Information Technology Act, 2000, liability of OP No.3 as intermediary does not remain. Likewise protection to OP No.3 is provided by provisions of Section 79 of Information Technology Act. Reply alleged to be filed through authorised signatory Shri Satyajeet Bhattacharya. OP No. 3 does not sell the products directly or indirectly and nor it provides any kind of assurance qua warranty of the products, price, discount or promotional sales etc. As such, OP No.3 cannot be held liable. Moreover, it is claimed that complainant is not a consumer of OP No.3. No relief claimed against OP No.3 and as such by denying contents of the complaint, prayer made for dismissal of the complaint. It is also claimed that no cause of action has accrued against OP No.3 because no deficiency in service provided by it.
3. Complainant through counsel tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-4 and thereafter closed evidence. On the other hand, counsel for OP No.3 tendered in evidence affidavit Ex.OP-1/1 of Shri Satyajeet Bhattacharya alongwith document Ex.OP-3/2 and thereafter closed evidence.
4. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
5. Undisputedly mobile phone in question was purchased by complainant by using website service facility of OP No.3. That mobile phone was purchased for amount of Rs.6,999/- through invoice Ex.C-1. Mobile phone was received at Mohali and as such certainly this Forum has territorial jurisdiction. Order was placed through OP No.3 with OP No.2 and after receipt of mobile at Mohali, the same developed defect and that is why complainant approached OP No.1, the service centre on 17.08.2017. As officials of the service centre refused to repair the mobile hand set on the ground that four corners are damaged and that is why complainant sent notice Ex.C-2 through postal receipt Ex.C-4 to manufacturer i.e. OP No.2. Despite that nothing has been done and as such certainly deficiency in service is on part of manufacturer and the service centre i.e. OP No.1 and 2.
6. OP No.3 ceased to have any role after supply of mobile phone in question by OP No.2 to complainant and moreover the defect in the mobile took place after 8 months of purchase, if the contents of the complaint taken on its face value and as such certainly OP No.3 cannot be fastened with liability of non providing of deficient service by manufacturer and its service centre. Refund of the cost of mobile phone to be done by manufacturer as per warranty provided by manufacturer or through service centre only. So certainly complaint against OP No. 3 is not maintainable. As report of the expert pointing out exact defects not submitted by complainant and as such fitness of things do not warrant that refund of the price should be ordered. Rather refund of price can be ordered only in case the mobile phone found to be beyond repair. Terms and conditions of warranty always provides that in case the mobile hand set becomes un-repairable, then replacement of the same with new one of equal worth or of same model alone should be ordered. So it is not fit and appropriate to order refund of the price, but to order repair free of cost, particularly when report of expert not at all produced that the mobile in question has become un-repairable. Complainant entitled for compensation for mental harassment and agony and also to litigation expenses to reasonable extent, by keeping in view price of the mobile and sufferings of complainant. Lapse of producing any expert report, of course also needs to be taken in consideration while allowing compensation amount and litigation expenses.
7. As a sequel of above discussion, complaint dismissed against OP No.3, but same allowed against OP No.1 and 2 with direction to OP No.1 to repair the hand set in question free of cost within 30 days from date of receipt of certified copy of order. However, in case mobile hand set in question found not repairable, then it will be the responsibility of OP No.1 and 2 to replace the mobile set in question with new one of equal worth or of same model, i.e. if the same model not available, then with mobile of equal worth. Compensation for mental harassment and agony of Rs.2,500/- and litigation expenses of Rs.1,500/- more allowed in favour of complainant and against OP No.1 and 2 only, whose liability is held as joint and several. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. Free certified copies of the order be supplied to the parties, as per rules. File be indexed and consigned to record room.
Announced
March 21, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
