CC No.2139.2014

Filed on 18.12.2014

Disposed on 18.01.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 18^th DAY OF JANUARY 2017

CONSUMER COMPLAINT NO.2139/2014                                                                                                                                                                                                                                                  

PRESENT:

     Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

             PRESIDENT

                   Smt.L.MAMATHA, B.A., (Law), LL.B.

                           MEMBER

                                            V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 18.12.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to deliver his phone or new phone, to pay money loss incurred Rs.99,000/- which includes the travel expenses, phone bills  and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Service point continued to say the phone is with Xolo Company, Delhi and the reason they told that they are replacing mother board.  They continued to say for another 3 months.  Due to this, the Complainant escalated this to Jeevithan, Xolo Manager for the State of Karnataka. They has assured to replace his phone with the new one without paying any money, as the Complainant has been waiting for long time to get his phone and also he went to service point multiple times.  As mislead by Mahaveer, Manager for Service point, Mr.Jeevithan said that the Complainant has to pay sum of Rs.3,300/-.  Being waited for his phone for such long time, the Complainant has accepted to pay the money.  In the month of September, the Complainant got a call from Service Point to collect his handset.  When the Complainant asked if this is same one he has submitted, but it is at that time the Complainant came to know he has been cheated.  He checked the IMEI number of the phone and it was different from his phone and it looked old too.  When he asked about the same, they tried to mislead by saying ‘they didn’t see IMEI, mother board has been changed for your phone.  He wondered why mother board is related to display and how can they change mother board without informing him.  When he asked them to replace with new phone as they assured.  By end of September, he got a call from service point stating his phone will be replaced with new XOLO Q1010i.  When he visited service center, they tried to cheat him by saying they won’t give new phone.  When he showed the voice recorder about new phone, they said they need some time to get new handset.  On 05.11.2014, Service point called him stating his phone is replaced with some old phone.  He didn’t accept as it was an old phone.  The service point said the display cost is Rs.4,680/- but Jeevithan said that is Rs.3,400/- which misleads customers.  On 07.11.2014, he called XOLO call center to lodge a complaint against Service point as they have all the details of phones.  When enquired about his phone they said Service point has updated that phone has been re-submitted in September, but actually he has submitted only once in May.  By this way Service point has mislead and cheated customers and Xolo Company itself.  Mentioning all the above details in a mail, he sent one to Xolo Company, yet they didn’t resolve his issue though he waited for more than 4 weeks.  On 16.12.2014, he called service point and asked them to give his phone back without any repair, but Mahaveer very rudely said they can’t give his phone back, only option left to him is pay Rs.3,400/- and collect old phone.  That too he has lost 7 months warranty too.  The Complainant visited service point quite a number of times spending huge money that resulted so much of money loss.  He has lost warranty for 7 months as the phone is with them.  He depressed mentally by the way they have spoken. Hence this complaint. 

3. Even though the notice was served on Opposite Party No.1, the Opposite Party No.1 fails to put their appearance hence placed ex-parte. 

In response to the notice, the Opposite Parties No.2 & 3  put their appearance through their counsel and filed their version.  The Opposite Party No.2 in the version pleaded that the complaint is not maintainable in law or on facts.  The complaint is filed just before expiry of warranty period with bad motive to fix false liability against Opposite Parties.  On the first visit of the customer he bought his device with broken condition and it is also admitted in his complaint.  Since the said issue is out of warranty, the service center has changed the touch panel on chargeable basis and delivered the device to the customer. However, this fact is not disclosed in the complaint. For the second time the Complainant visited the service centre with different issue and the service centre has dispatched the device to HO for necessary action.  On examining the condition of the device, HO has changed the Board and the device is returned to the service center to be delivered to the customer. When the said fact is informed to the customer he has refused to take back his device on the ground that his IMEI number is changed.  As and when Board is changed naturally IMEI number will also change.  This fact is also informed to the Customer as well as try to educate him.  However, he is adamant as well as insists he need old IMEI number only.  When the device is received with certain issue, the Company will take suitable steps to restore the device for normal function by changing the Board.  Any action taken by the Company is based on situation prevailing at the time of delivery of the device and not with any other intention.  The service will be provided for the customer benefit only.  Without analyzing the situation now the Complainant alleges that for touch panel problem why board is changed.  Earlier the customer has visited the service centre two times with two different issues and not once as contended in his complaint.  The allegation of the customer that no repair is carried out a swell as visited the service centre frequently as well as lost warranty period is denied as false as well as it is contrary to real fact.  Even after taking necessary steps to restore the device for normal position by changing the Board, still he customer is not ready to take back his device from the service centre.  In fact for changing Board the Company never charged anything due to existence of warranty to the device.  They have charged applicable amount only for replacing the touch panel screen since the said issue does not cover any warranty and the customer has also paid the amount for the said service.  Contrary to these episode, now the Complainant is alleging different things even though those incidents not happen at any point of time.  These facts clearly emerges that the customer is not clean in approaching he forum and he is not entitled any relief on the basis of his false allegations.  Hence the claim of the Complainant is liable to be rejected.  The allegation of the customer that he has visited the service centre frequently by spending huge amount for travelling is denied as false.  It is not true and correct that the Complainant has applied leave to visit the service centre.   It is denied as false that the customer has lost warranty period.  Due to adamant attitude in not collecting his device after changing the board, now the company is not responsible towards his negligence act as well as the company is also not liable to compensate him in any manner without any mistake on the part of the company.  It is denied as false that the Complainant has depressed mentally.  The Opposite Party No.2 has filed Memo on 04.07.2015 informing that the Company is ready to provide higher end model of device than the present device possessed by him as good will gesture.  However, in spite of best offer given to the Complainant, still he Complainant insist for payment of Rs.1,00,000/- towards alleged mental agony without any evidence.  This fact clearly disclosed that the motive behind filing the present complaint is to enrich at the cost of the service provider which is against the principle laid down by the Hon’ble NCDRC.  In the present case, there is no delay or latches on the part of the Opposite Parties in resolving he service issue.  However, due to noncooperation as well as due to adamant attitude of the Complainant himself in not collecting the device after service or received from Head Office, The Complainant device could not be delivered to him and not with any other ill will.  As such looking from that angle also the Complainant is not entitled for any amount by way of compensation and his demand for payment of certain amount towards mental agony has to be rejected.

4. The Opposite Party No.3 field separate version, in the version pleaded that the Opposite Party No.3 its trading facility platform over the internet under the domain name www.flipkart.com and has developed a website under the said name and is engaged in the business of online marketplace, providing platform/other mechanism to facilitate transactions, electronic commerce, mobile commerce, by and between respective buyers and sellers, enables dealing in various multiple categories of goods including but not limited to movies, music, games, mobiles, cameras, computers, apparels, footwear, healthcare and personal products, home appliances and electronics, etc.  The Complainant is not a consumer of this Opposite Party under the provision of the Consumer Protection Act and therefore, it is submitted that the Complainant has wrongly arrayed this Opposite Party No.3 as an Opposite Party in the instant complaint.  There is no privity of contract between the Complainant and Opposite Party No.3 and therefore, the complaint is not maintainable either in law or on facts.  The Opposite Party No.3 as an intermediary involvement of Opposite Party No.3 in the entire transaction is very limited in providing only the online platform and nothing beyond this. The Opposite Party No.3 does not sell any products on its own.  The Opposite Party No.3 provides online platform where different registered sellers sell their products and visitors/buyers shall purchase such products from the respective sellers on the aforesaid website.  The Opposite Party No.3 is not involved in the entire transaction except for providing the platform and the contract is only between the seller and the Complainant and hence this Opposite Party No.3 cannot be held liable for any liability owing to such contract. There is neither any shortage of supply nor deficiency in service on part of this Opposite Party No.3.  At no stretch of imagination Opposite Party No.3 is involved in unfair business practice for he reasons enumerated herein this Statement of Objection.   Under the circumstances and for the reason stated above, there is no dispute as contemplated under the Consumer Protection Act between the Complainant and this Opposite Party No.3.  Hence, the complaint is liable to be dismissed.  Hence prays to dismiss the complaint.

5. The Complainant, Sri.C.Koundinya Sharma has filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party No.2, the affidavit of one Sri.Vasudevan has been filed.  On behalf of the Opposite Party No.3, the affidavit of one Sri.Panduranga Acharya has been filed.   Heard the arguments of Complainant and Opposite Parties No.2 & 3.  

6.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

7.     Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

8. POINT NO.1:- As looking into the averments made in the complaint and also version filed by the Opposite Party No.2 & 3, it is not in dispute that the Complainant has purchased Xolo phone Q700i on 19.02.2014.  Further to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and also produced Order Details.  By looking into this document, it is clear that on 19.02.2014 the Complainant purchased Xolo Q700i (Brown) through online by paying a sum of Rs.10,089/- through Opposite Party No.3.  This is also further supported by the Tax Invoice, this evidence of the Complainant remains unchallenged.  To disbelieve the evidence of the Complainant, there is no contra evidence, therefore, it is proper to accept the contention of the Complainant that the Complainant had purchased Xolo Q700i phone on 19.02.2014 for a sum of Rs.10,089/- through Opposite Party No.3 flip kart.

9. Except purchasing the Xolo Phone through Flipkart online there is no allegation against the Opposite Party No.3 so after receiving the consideration amount of Rs.10,089/-, the Opposite Party No.3 supplied the phone which was good condition thereby, there is no any deficiency of service on the part of the Opposite Party No.3.

10. It is further allegation of the Complainant that few days later his phone’s display has broken without his intervention and he submitted phone in Xolo service point with the Opposite Party No.1 on 23.05.2014.  They have assured the repair and delivery within next 2 weeks from that date.  But even after specified period, they haven’t updated about his phone. Even the Complainant continuously with service point, they started saying the phone is with Xolo Company, Delhi.  For the reason that they are replacing the mother board.  The Opposite Party No.1 continued to say for another 3 months. Due to this, the Complainant escalated this to Jeevithan, Xolo Manager for the State of Karnataka. They has assured to replace his phone with the new one without paying any additional charge.  In the month of September, the Complainant received a call from Service Point to collect his handset.  When the Complainant asked if this is same phone, but at that time the Complainant checked the IMEI number of the phone and it was different.    By the end of September, the Complainant received a phone call from service point stating that his phone will be replaced with new XOLO Q1010i.  When the Complainant visited service center, they tried to cheat him by saying they won’t give new phone.  On 05.11.2014, Service point called the Complainant stating his phone is replaced with some old phone.  But the Complainant didn’t accept as it was an old phone.   In order to substantiate this, the Complainant in his sworn testimony, he reiterated the same and also produced Acknowledgement issued by the Opposite Party No.1 for receiving the Xolo Q700i phone from the Complainant on 23.05.2014.  Further by looking into this document, it reveals that the said phone had the touch screen of the phone was broken, from this evidence it is very clear that the Complainant approached the Opposite Party No.1 with a complaint that the purchased Xolo Q700i phone touch screen was broken but the Opposite Party No.1 has not render proper service and he was postponing the same.  In spite of the Complainant was pursuing to resolve his issue and the Opposite Party No.1 is also informing the Complainant that the phone of the Complainant is with the Company at Delhi and it is giving the evidence of the Complainant, he received phone call from the Opposite Party No.1 to collect the handset in the month of September, when the Complainant visited the Opposite Party No.1 to collect his hand set the IMEI number of the phone is different.  For that reason, he refused to receive the handset and again on 05.11.2014 the Opposite Party No.1 called the Complainant over phone to replace the some old phone, but the Complainant was refused. 

11. The Opposite Party No.2 in their version taken defence that on first visit, the Complainant bought his device with broken condition and the said issue is out of warranty, the service center has changed the touch panel on chargeable basis and delivered the device to the customer. But in support of these defence, except the interested version of one Sri.Vasudevan, there is no other evidence placed by the Opposite Party No.2.  On the other hand, the Opposite Party No.2 has not placed any evidence to believe that the Opposite Party No.1 on chargeable basis rendered services by rectifying the broken touch panel.  Thereby it is not proper to accept the defence taken by the Opposite Party No.2.

12. Further the defence of the Opposite Party No.2 is that for the second time the Complainant visited the service centre with different issue and the service centre has dispatched the device to Head Office for necessary action.  On examining the condition of the device, Head Office has changed the Board and the device is returned to the service center to be delivered to the customer. The service center intimated to the customer about the arrival of this device if the Complainant has refused to take back his device on the ground that his IMEI number is changed.  When Board is changed naturally IMEI number will also change.  Even to substantiate this defence also except the interested version of Opposite Party No.2, the Opposite Party No.2 has not placed any evidence that they have changed the mother board and in the event of changing the mother board IMEI number will also change.  On the other hand, from the evidence and the allegations in the complaint, it is clear that the Opposite Party No.2 had sent old handset to the Opposite Party No.1 thereby the Complainant is not ready to accept the old handset and refused to receive the handset.  If there is no defect in the handset manufactured by the Opposite Party No.2 what is necessary for Opposite Party No.2 to file Memo before this Forum on 04.07.2015 stating that as a good will gesture towards the customer Opposite Party No.2 is ready to resolve the customer issue without further proceedings as well as without admitting any fault or liability if there is any fault or liability it is not necessary for the Opposite Party No.2 to file such memo.  Apart from that even though the Opposite Party No.2 filed such Memo on 04.07.2015 but they have not ready to give with new Xolo Q1010i mobile set in replacing Complainant Xolo Q700i, thereby there is a deficiency of service on the part of the Opposite Parties No.2 as well as the Opposite Party No.1.  Since the Opposite Party No.1 has not provide proper service and the Opposite Party No.2 being the Manufacturer had a defective handset.  Hence, this point is held in the Affirmative.

   13. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint against Opposite Party No.3 is dismissed.

The complaint is allowed holding that there is deficiency of service on the part of the Opposite Party No.1 & 2.

The Opposite Party No.1 & 2 are directed to refund a sum of Rs.10,100/- (Rupees Ten Thousand One Hundred only) the cost of Xolo handset.

The Opposite Party No.1 & 2 are directed to pay a sum of Rs.25,000/-(Rupees Twenty Five Thousand only) as compensation for causing mental agony to the Complainant.

     The Opposite Party No.1 & 2 are directed to pay a sum of Rs.2,000/- (Rupees Two Thousand only) as cost.

     The Opposite Party No.1 & 2 are directed to pay the aforesaid amount within 30 days from the date of this order. Failing which the aforesaid amount will carry interest at 15% p.a. from the date of order, till the date of payment. 

Supply free copy of this order to both the party.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 18^th day of January 2017)

     MEMBER                                                PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Koundiya Sharma, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Order Details
2. Tax Invoice dt.19.02.2014
3. Acknowledgement

Witness examined on behalf of the Opposite Parties:

1. Sri.Vasudevan, on behalf of the Opposite Party No.2

by way of affidavit.

2. Sri.Panduranga Acharya, on behalf of the Opposite Party No.3 by way of affidavit.

  List of documents filed by the Opposite Party:

                                    -NIL-

MEMBER                                                                               PRESIDENT