By Smt. PREETHI SIVARAMAN.C, MEMBER
1. The complaint in short is as follows:-
On 14/05/2021 complainant ordered a POCO X3 Pro mobile phone worth Rs 18,999/- from opposite party No.2 and he received the phone on 03/06/2021 and the above phone got dyfunct on 31/01/2022 which is during the warranty period. Opposite party No.1 is the manufacturer of the phone and complainant said that the alleged defect is manufacturing defect. Complainant’s phone was not in a position to switch on. On 01/02/2022, he entrusted the phone to opposite party No.3 service centre for repair and after two months and 8 days, they provided a new POCO X3 Pro mobile phone to complainant.
2. Thereafter the replaced phone again got dyfunct and it is entrusted to opposite party No.3 for service. But complainant not received the phone yet after repair. It is a clear deficiency in service and unfair trade practice from the side of opposite parties. The defect caused to the phone is manufacturing defect. Hence company is also liable to compensate the complainant. Due to the defective phone complainant was unable to attend the online classes related to his studies. Complainant again alleged that the defective phone manufactured by opposite party No.1 which is sold through the platform of opposite party No.2 and it is repaired by opposite party No.3. The replaced mobile phone again got dyfunct and complainant entrusted the phone to opposite party No.3 for repair. But opposite party No.3 did not repair the phone and did not give it back to complainant yet. It is clear deficiency in service and unfair trade practice from the side of opposite parties which caused mental agony and hardship to complainant. Hence this complaint.
3. The prayer of the complainant is that , he is entitled to get Rs.18,999/- the cost of the mobile phone Rs. 80,000/- as compensation on account of deficiency in service and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant and cost of the proceedings.
4. On admission of the complaint notice was issued to the opposite parties and notice served on them and opposite party No.1 and 2 filed vakkalath and version through their counsel. But opposite party No.3 refused to receive the notice. Hence they set exparte.
5. In their version, opposite party No.1 denied all the allegations levelled by complainant against them. They again stated that they have no information as to whether the complainant had purchased the mobile phone and the complainant has to be put to strict proof of the case. They are unaware of the transactions done by the complainant with the second opposite party. Complainant should prove through both documentary and oral evidence that it is her who purchased the phone and that the phone is within the period of warranty. Complainant is trying to put the blame
on first opposite party and trying to get over the complaint made by her seeking the benefit of warranty not acceptable. They again stated that there is no negligence on the part of the product manufactured by first opposite party as alleged the complainant. The complaint to the mobile mentioned by the complainant must have caused due to the negligence of the complainant in using the same. The complainant is not eligible for any compensation as alleged. The mobiles manufactured by them are used by millions of customers and it is untrue to state that an update would have caused damage to the mobile. The damage alleged in the complaint must have been caused through some virus or malware attack which must have been caused due to some unauthorised or malicious website which might have been accessed by the complainant. They again stated that, the mobile phones manufactured by them which are sold the highest in India and there is no dispute with regard to the quality of the phone which is provided to millions of people. Hence complaint may be dismissed.
6. In their version opposite party No.2 stated that, they are an online market place, E- commerce entity as defined under consumer Protection Act 2019. Flipkart platform is an electronic market place model E-commerce platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent customers. Their business falls within the definition of an intermediary. They only provides a medium to various sellers all over India to offer for sale and sell their products to the users of the flipkart platform. These sellers are separate entity being controlled and managed by different persons/stake holders. Opposite party No.2 does not directly or indirectly sells any products on flipkart platform. All the products on flipkart platform are sold by third party sellers who avail of the online market place services provided by opposite party No.2 on terms decided by the respective sellers only.
7. They again stated that the service of opposite party No.2 are similar to shopping mall where various shops are rented out to different sellers who independently carry out same proceedings with the customer. In the case of any defect in goods sold by such shop owners or sellers in the shopping mall, it is the shop owner or the 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 opposite party No.2 is not involved in the entire transaction except providing the online platform for the transaction and the concerned contract of sale and purchase is between the seller and the buyer only. Hence they are not liable.
8. They again stated that it is a seller of the product that provides 7 days replacement policy in addition to the manufacturer’s warranty where in buyers can claim replacement of the product, if the product is qualifies the quality test check arranged by the seller from the expert technician. If the product is actually found defective by the seller within the said 7 days replacement policy, the seller provides replacement to the buyer. They again stated that in this matter complainant has purchased the product on 14/05/2021 and complainant approached the opposite party No.2 for seeking the details of authorised service centre on 03/02/2022. Hence complainant has miserably failed to avail the 7 days replacement policy that is provided by the seller of the product. It is submitted that once this 7 days replacement policy lapses away the sole responsibility to provide resolution lies upon the manufacturer and its authorised service centre. Moreover they stated that they are not owned, controlled associated with the manufacturer, seller or the authorised service centre in this complaint. They again stated that complainant is aware about the fact that the product is manufactured by opposite party No.1 and not opposite party No.2 and the product purchased by the complainant is covered under manufacturer’s warranty period. The relief claimed under this complaint is not maintainable against them. Hence opposite party No.2 is not liable.
9. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A4. Ext.A1 is the copy of the tax invoice dated 18/05/2021. Ext.A2 is the copy of the service order given by opposite party No.3 to complainant on 01/02/2022. Ext.A3 is the copy of the service record given by opposite party No.3 to complainant on 17/10/2022. Ext.A4 series are the copies of notification regarding the quality of the phone, search history and result about POCO Brick issue. Thereafter opposite party No.2 also filed affidavit but no documents marked. But opposite party No.1 did not file any affidavit to prove their case.
10. Heard complainant and opposite party No.2. Perused affidavit and documents. The following points arise for consideration:-
- Whether there is any deficiency of service and unfair trade practice on the
part of opposite parties.
- If so, reliefs and cost
11.Point No.1 and 2:-
The case of the complainant is that the mobile phone he had purchased became
defective within one year of its purchase and the defect caused is during the warranty period. Complainant alleged that it is a manufacturing defect. But opposite party No.2 stated that complainant purchased the mobile phone through them. But they are electronic market place model E- commerce platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent customers. Thus any act of the seller, the market place E-commerce platform or its operating entity cannot held liable. But the first opposite party appeared before the Commission and filed version, but not filed affidavit to prove their case.
12. From Ext. A1 document it is clear that, on 14/05/2021 complainant had ordered a POCO X3 Pro mobile phone through flipkart, the opposite party No.2 and which is manufactured by opposite party No.1. The invoice date is 18/05/2021 as per Ext. A1. As per Ext. A2 dated 01/02/2022 it is clear that complainant had entrusted his mobile phone to opposite party No.3 for repair. As per complainant’s case, he purchased the mobile phone on 3/06/2021. As per Ext. A3 the service record dated 17/10/2022, it is clear that complainant had entrusted his mobile phone to opposite party No.3 for repair again on 17/10/2022. Ext. A4 series documents produced by complainant which shows the opinion of common people about the phone. Moreover that documents shows about the opinion of social media about this particular phone. From the above documents it is clear that complainant had purchased the above mentioned phone and it got dyfunct within one year after purchase of the phone and complainant had entrusted the phone for repair to opposite party No.3. As per Ext. A3 it is clear that, he had again entrusted the phone to opposite party No.3 for repair. Both opposite parties and complainant did not produce warranty card before the Commission. But in Ext. A1 document it is clearly noted that there is one year warranty for hand set and six months warranty for accessories.
13. In Ext.A2, the service order given by opposite party No.3 to complainant, they clearly noted in the column “fault description “ that ''does not boot''. In Ext. A3, the service record given by opposite party No.3 to complainant, clearly noted in the column “fault description from customer” that ''does not boot''. They again noted in the column of ''fault description'' that ''does not boot''. Moreover opposite party No.3 noted in the column “service type” that “in warranty”. It is clear from the above description that the mobile phone is unable to start. Booting is the process of starting a computer or a mobile phone. From the documents, itself opposite party No.3 admitted that the complainant’s mobile phone was unable to open and start. So the defect is clear. As per complainant’s case, he stated that on 30/01/2022 the above mentioned phone got dyfunct and opposite party No.3 provided a new phone to complainant. Complainant again stated that the replaced new mobile phone also got dyfunct and now it is in the custody of opposite party No.3. Moreover complainant stated that all over India this series of phone had defects from the very beginning and he submitted Ext. A4 series documents to show the
opinion of other people who used this type of mobile phones.
14. In this case the mobile phone became defective during the warranty period. From Ext. A1 it is seen that this mobile phone had a warranty of one year. From Ext. A2 document, it is clear that the mobile phone got dyfunct within 7 or 8 months after purchase and complainant entrusted mobile phone to opposite party No.3 for repair. Hence the defect is apparent from the documents produced by complainant itself. It is a manufacturing defect. Opposite party No.1 did not file affidavit to prove their case. But in their version they simply stated that they are unaware of the transaction done by complainant and second opposite party. They again stated that, complainant should prove through both documentary and oral evidence that it is he who purchased the phone and the phone is within the warranty period. But from the above statements , we are on the opinion that , it is their trick to escape from the liability. They clearly know that, the warranty details of the product manufactured by them. They are the authority who provide the warranty to their product. Moreover complainant produced Ext. A1 document before the Commission to show that the above mobile phone had one year warranty for hand set and six months for accessories.
15. In the version and affidavit filed by opposite party No.2, they stated that they are only an intermediary and their role is very limited and they provided an online platform to sell the product by the seller and purchased the product by the buyer. But it is not correct. Opposite party No.2 should know the veracity and reliability of the product sold through them. As per Consumer Protection Act 2019 Chapter VI product liability, Section 84 deals about the liability of product manufacturer , Section 85 deals about the product service provider and Section 86 deals about the liability of product seller. A product liability action may be brought by a complainant against a product manufacturer or a product service provider or a product seller, as the case may be, for any harm caused to him on account of a defective product. Hence all the opposite parties are equally liable to compensate the complainant. It is not easy to escape opposite party No.2 from the liability of online platforms. They contented that they are only an electronic market place model E- commerce platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and customers. They again stated that the sellers are separate entity being controlled and managed by different persons and they again stated that they did not directly or indirectly sells any product on flipkart platforms. But in our opinion, it is not easy for flipkart to washed off their hands from the liability. They should know the quality of the product and the veracity of the seller, who sold their products through them. The poor customers always trust the online platforms like flipkart. The online platforms like flipkart and Amazon are advertising the product and the offers in the online platform. The consumers believe the brand names of this online sites. They have no idea about the seller. They clearly know who the manufacturer is but they are not aware about the seller who sold this kind of product. The complainant gets to know about the seller only after receiving the product and the tax invoice attached with the product. The poor customers always believe the advertisement seen in the online platforms. So opposite party No.2 is held liable to compensate the complainant. From the above facts we are on the opinion that the product manufactured by opposite party No.1 is a defective product. It has manufacturing defects. That product is purchased by the complainant through opposite party No.2 and after defective he had given for service to opposite party No.3. Hence there is clear deficiency of service and unfair trade practice from the side of opposite parties. The product has manufacturing defect.
16. Complainant is a student and he purchased the phone for his online classes. Due to the defective phone and due to the service deficiency from opposite parties complainant was unable to attend the online classes. The non attending of online classes affected the studies of complainant. Hence the Commission finds that there is deficiency in service and unfair trade practice on the part of the opposite parties as alleged in the complaint. Hence we allow this complaint holding that opposite parties are deficient in service. We allow this complaint as follows:-
- The opposite party No.1 is directed to refund Rs.18,999/-(Rupees Eighteen thousand nine hundred and ninety nine only) the cost of the mobile phone to the complainant.
- The opposite parties are directed to pay compensation of Rs.20,000/-(Rupees Twenty thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties are also directed to pay Rs.3,000/-(Rupees Three thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 24th day of April, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1 : Copy of the tax invoice dated 18/05/2021 .
Ext.A2 : Copy of the service order given by opposite party No.3 to complainant on
01/02/2022.
Ext A3 : copy of the service record given by opposite party No.3 to complainant on
17/10/2022.
Ext A4 : Series are the copies of notification regarding the quality of the phone,
search history and result about POCO Brick issue.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
