Complainant Satyan Kumar has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to refund Rs.24,999/- alongwith interest @ 18% per annum from the date of its purchase till realization or they may be directed to exchange the mobile phone in question with new phone as the same is within warranty period. Opposite parties be further directed to pay Rs.10,000/- on account of mental and physical agony suffered by him due to their illegal, unfair trade practice, in the interest of justice.

2.        The case of the complainant in brief is that he had purchased a phone made Mi 5 32 GB (white colour) bearing IMEI (MEID) 869644020367947 for Rs.24,999/- from the opposite party no.1 through online  sale from his home which was held by opposite party no.1 on 26.5.2016 on cash on delivery basis and the same was received by him through courier at his residence on 30.5.2016 after paying an amount of Rs.24,999/- and thus, he is consumer of the opposite party. The mobile phone in question started remaining hanged after four months of its purchase and to re-operate the same it has to be restarted again and again. The voice and audible quality of the same was defective and it was very hard to hear the voice of the caller and the caller was also unable to hear his voice. He approached the authorized service station of opposite party no.1 at Ludhiana who illegally told him that the abovesaid audible defect is due to network problem and the phone is hanging due to excess storage of data. He deleted all the excess data from his phone which otherwise allegedly contains 32 G.B. data but the defect was not removed. On 7.2.2017 the vibrator of the phone in question stopped working. On 8.2.2017, he approached the opposite party no.3 the authorized service station of opposite party no,1 at Gurdaspur which had opened shortly to rectify the defect. Opposite party no.3 returned him phone on the same day and told him that the defect has been removed and new vibrator has been installed in the same. After the installation of new vibrator the same was vibrating less and was making extra sound.  Again on 8.3.2017 the touch screen of the mobile phone stopped working and the same became in operatable. He again approached the opposite party no.3 who told the same that he would have to replace the touch panel as the same is out of order but the touch in question became inaccurate, unsmooth and he had to press hard the touch screen in order to operate the mobile phone. He has next pleaded that on 23.3.2017 the mobile phone in question again stopped working and hanged. He tried his best to restart the mobile phone again and again in order to get rid of the hangness but the same did not work. Constrained by the circumstances he again approached opposite party no.3 who told the same that the phone is suffering from a technical problem which is known as Hang on Logo and he will have to reload the software in order to get rid of the same. The mobile phone in question was returned to him on the same day but the problem in question persists and the phone keeps on hanging after 3-4 hours. All the aforesaid defects in the mobile in question has not been removed even the attempt made by opposite party no.2 and the same keep on occurring time to time and now it has become impossible for him to proceed with the mobile phone in question. The mobile phone is having the manufacturing defects which cannot be rectified and repaired. Due to the non functioning of the mobile phone, he is suffering from huge mental and physical agony  alongwith financial loss as he being an Advocate cannot interact with his clients, friends and family. The opposite parties finally refused to admit his genuine claim. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.       Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed its written reply submitting therein that there is no deficiency in service on its part. The opposite party no.1 is authorized service centre, on all three occasions when the complainant approached the authorized service centre of the opposite party no.1, received the complainant’s Product, examined it for defects and repaired the Product as necessary, in accordance with the warranty terms and conditions as applicable and under which the Product was sold. Opposite party no.3 at all times advised the complainant to submit the Product for necessary technical examination so that any repairs could be carried out under the standard warranty terms and conditions applicable to the product. However, the complainant at all times refused to submit the Product to the opposite party no.3 for necessary technical examination and insisted on a replacement thereby preventing the opposite parties to provide any remedy to the complainant under the standard warranty terms and conditions applicable to the Product. It has further submitted that the complainant in the present case has infact not presented any evidence to demonstrate that the alleged defects in the present complaint are a consequence of defects in the Product and not a consequence of use or mishandling by the complainant. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.        Upon notice, opposite party no.2 appeared through its counsel and filed its written reply by taking the preliminary objections that the complainant has approached this Hon’ble Forum with unclean hands and is guilty of suppressing material facts and as such is abuse of process of law and deserves to be dismissed with costs; there has been no dispute contemplated under the Consumer Protection Act, 1986 between the complainant and the opposite party, as the opposite party is not the manufacturer of the product sold to the complainant. Therefore, question of deficiency in service or unfair trade practice does not arise under any circumstances whatsoever.  On merits it was submitted that the product in question was never purchased from the portal of opposite party and therefore there is no relation of consumer and seller between the complainant and the opposite party nor the order was placed through the website of the opposite party and therefore present complaint is not maintainable under the provision of consumer Protection Act. The product in question was directly purchased by the complainant from some, Rocket Kommerce LLP which is not even a registered as a seller on the portal of the opposite party. Further, the order was not even placed through the web portal of the opposite party which is also evidence on the automated message dated 30^th May, 2016 from MI India (

5.      Opposite party no.3 appeared through its counsel and filed its written reply submitting therein that  the complainant approached opposite party no.3 and opposite party no.3 tried its level best to rectify the defect on 8.2.2017 and gave the handset back to the complainant and new vibrator has been installed in the handset. It was admitted that the opposite party no.3 replaced the touch panel and all other queries on that day i.e. 8.3.2017. It was next submitted that on 23.3.2017 opposite party no.3 again repaired the mobile.  All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

6.      Complainant tendered into evidence his own affidavit Ex.C-1 and of Deepkaran Khajuria  Ex.C-7 alongwith other documents Ex.C1 to Ex.C6 and Ex.C8 and closed the evidence. 

7.       Counsel for the opposite party no.1 tendered into evidence documents Ex.OP-1/1 to Ex.OP-1/5 and closed the evidence.

8.      Counsel for the opposite party no.2 tendered into evidence affidavit of Mr.Satyajeet Bhattacharya Ex.OP-2/1 and closed the evidence.

9.     We have carefully examined all the documents/evidence as made available on the complaint records (as duly put forth by the participating litigants) along with the scope of adverse inference that may be judicially/discretionarily drawn on account of intentional non-production of some of the documents otherwise vital to present adjudication, in the very back-drop of arguments as put forth by the learned counsels for the litigating sides.

10.     We find that the complainant had on record purchased (affidavits Ex.C1 & Ex.C7) one Mobile Phone of MI 5 Make 32 GB (white) vide Invoice # 14…6614 of 26.05.2016 for Rs.24.999/- (Ex.C3) from M/s Rocket Kommerce, the authorized dealers of the OP1 Marketers and delivered through OP2 Flipkart, Internet Marketer & Delivery Associates. However, the Cell Phone/ Mobile (in question) started malfunctioning persistently within a few months of its purchase and the complainant had to get it repaired, serviced and okayed from the OP3 Authorized Service Centre four times within 10 months but with a minimal improvement and second-rated performance till the month of April’ 2017 when it started ‘hanging’ intermittently and was thus finally rendered unusable. Thereafter, the complainant approached the opposite parties for replacement of the defective device or refund of the invoice amount but they did not agree/ respond to either and thus prompted the present complaint with the prayed relief(s).   

11.     We find that the present complainant has successfully proved all his complaint-contented allegations vide his affidavit Ex.C1 and other evidentiary documents Ex.C2 to Ex.C8; along with the expert opinion affidavit Ex.C7 deposing of the inherent defect in the device and subsequent necessity of refund/ replacement. We further find that the OP1 have duly admitted the OP2 and OP3 as their business associates and thus the two cannot escape their liability to an adverse statutory award as pleaded in their respective versions but in line with their inter-se contracted agreements etc. In turn, the opposite parties have submitted their respective affidavits and also the relied upon documents exhibited here as: Ex.OP1/1 to Ex.OP1/5 but that do not either or even establish their pleaded defense of non-infringement of the complainant’s consumer rights through deficiency in service coupled with unfair trade practices etc and that lines them here up to an adverse statutory award. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/ or to cast undue excessive ‘distress’ to the delinquent parties.            

12.     In the light of the all above, we find merit in the present complaint and thus ORDER the opposite parties to refund full invoice amount of Rs.24,999/- to the complainant besides to pay him a sum of Rs.5,000/- as cost and compensation within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of orders till actual payment.

13.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                                                                         (Naveen Puri)

                                                                               President   

Announced:                                                     (Jagdeep Kaur)

April,02 2018                                                         Member

*MK*