IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday, the 31st day of March, 2017.
Filed on 17..08..2015
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier(Member)
- Smt. Jasmine D (Member)
IN
CC/No.249/2016
Between
Complainant: Opposite party:-
Smt.Simi.T 1. M/s Motorola Mobility
W/o Sarath Chandran .S India Pvt. Ltd
Shreyas, Plakudy Lane , Rept by its Head Office
Ambalappuzha 415/2 Mehruali Gurgaon Road
Alappuzha Sector- 14 Gurgaon
Haryana- 122001
2. Motorola Authorised Service Centre
Rept. By M/s. ARD
Technologies, 40/8092
First Floor, DD Junction Building
Near Shenoys Theater, Cochin
Eranakulam-632035
Ph: 0484 4067500
3. Flipcart Internet Pvt Ltd
Vaishanvi Sumitte
Ground Floor, 7th main
80 teet road, 3rd Block
Koramangala Industrial Layout
Banglore-560034. Karnataka
O R D E R
SMT.JASMINE.D. (MEMBER)
The case of the complainant in short is as follows:-
The complainant purchased a Motorola Nexus 6 hand set from Flipkart for an amount of Rs.41,999/-. The Nexus series of devices are google’s flagships phones made by different manufacturers every year and this time by the 1st opposite party Motorola. After 2 months from the date of purchase the speakers of the said phone became defective and entrusted to the authorized service centre at Eranakulam on 19/05/2015 and the 2nd opposite party has replaced the said phone on 10/06/2015. When the complainant received the replaced phone the packet was not a sealed one and within one month the camera of the replaced phone stopped working and the complainant again approached the service centre and entrusted the phone to the service centre on 17/06/2015 and on inspection they found that the camera is faulty and the same was not repaired so far. The complainant now lost faith in Motorola is service and the complainant need refund of the amount paid. The complainant sustained much mental agony and hence filed this complaint seeking refund of the price of the phone together with compensation and cost.
2. Notice was served to the opposite parties. Opposite party 1 and 3 filed version 2nd opposite party appeared before the Forum but not filed any version and also absent for the subsequent proceedings. Hence 2nd opposite party was set expartie.
3. Version of the 1st opposite party is as follows.
The complaint is not maintainable. There is no deficiency in service on the part of the opposite party as the phone was replaced when the complainant reported defect. When the complainant approached the authorized Service provider of the answering 1st opposite party for the issue of camera, the engineer has duly diagnosed the Smart phone in question and offered to provide the required services under warranty to the Smart phone. However, the complainant has denied availing the service. Therefore there is no deficiency in services on the part of answering opposite party. Further it is submitted that again when the complainant approached our authorized service centre, he was promptly directed to get his smart phone repaired. However, the complainant denied availing the bonafide offer of service under warranty. Hence there is no deficiency in service which caused untold agonies and sufferings to the complainant. Therefore, the question of receiving compensation for mental agony and loss of time does not arise. The answering opposite party cannot be held liable for the wrong doings of the complainant. Hence the complaint ought to be dismissed in limine. That in reply to Paragraph-j of the complaint, it is submitted that the answering opposite parties were always willing to provide the required services under warranty as and when the complainant approaches them. However, the complainant failed to avail the services for the reasons best known to him and filed the instant false complaint to harass this opposite party with a view to gain undue enrichment. Hence the complaint ought to be dismissed. The complainant is not entitled to get any compensation and hence the complaint may be dismissed.
4.Version of the 3rd opposite party is as follows.
That the 3rd opposite party only acts as an intermediary through its web interface www. Flipkart. Com and provides a medium to various sellers all over India to offer for sale and sell their products to the users of the Flipkart Platform. It is submitted that these sellers are separate entity being controlled and managed by different persons/stakeholders. The answering 3rd opposite party does not directly or indirectly sells any products on Flipkart Platform. Rather all the products on Flipkart Platform are sold by 3rd party sellers, who avail of the online market place services provided by the answering 3rd opposite party on terms decided by the respective sellers only. The sellers directly raise invoices to the end customers for the products sold and bear all contractual risks. The customers purchasing products from such sellers directly make the payments for their purchases either on a pre-paid basis (net banking/ credit card/ debit card) or cash on delivery basis. The ultimate monetary beneficiary of such sale proceedings is the seller. In the instant complaint also, it is evident from the invoice copy attached by the complainant with his complaint that the actual seller of the product is a 3rd party seller and not the 3rd opposite party herein. It is pertinent to mention here that the complainant has wrongly arrayed this 3rd opposite party in the present complaint. That the 3rd opposite party has not charged any amount from the complainant for using the services available on online marketplace Flipkart Platform. It is submitted that the complainant does not fall within the ambit of the definition of the term “Consumer”. That the 3rd opposite party submits that role/involvement of 3rd opposite party is as an intermediary only, that is, to provide online platform to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its Flipkart Platform. The services of 3rd opposite party are similar to a shopping malls where various shops are rented out to different sellers who independently carryout sale proceedings with the customer/visitors of the shopping mall in case of any defect in the goods sold by such shop owner/ 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, the 3rd opposite party is not involved in the entire transaction except for providing the online platform for the transactions and the concerned contracts of sale and purchase is between the seller and the buyer (here complainant) only and hence this 3rd opposite party shall not be held liable for any liability owing to such contract. There is no deficiency in service on the part of the opposite party and hence the complaint may be dismissed with cost.
5. Complainant filed proof affidavit and documents Exts. A1 to Exts. A4 were marked. The complainant produced the phone before the Forum and was marked as Ext. MO1.
6. Considering the allegation of the complainant and contention the Forum has raised the following issues:-
- Whether there is any deficiency in the service of the Opposite Parties?
- Whether the complainant is entitled to get the relief and cost?
7. Issues 1 and 2:
The case of the complainant is that she had purchased a mobile phone from the 1st opposite party through the 3rd opposite party for an amount of Rs. 41,999/-. The said phone became defective immediately after 2 months from the date of purchase and the 1st opposite party has replaced the same. But the replaced phone also became defective after one month and the defect has not been rectified so far. Since the replaced phone also became defective the complainant lost faith in the opposite parties and needs refund of the price of the phone together with compensation and cost.
8. The complainant filed proof affidavit and documents produced were marked an Ext.A1 to Ext.A4. The complainant produced the phone before the Forum which was marked as Ext.MO1. Ext. A1 is the copy of bill dated 22-01-2015. Ext. A2 is the customer unit receipt dtd. 19/5/2015. Ext. A3 is the customer unit receipt dated. 17/7/2015. Ext.A4 is the warranty card.
9. From the documents it is clear that the complainant has purchased a mobile phone through the 3rd opposite party manufactured by the 1st opposite party on 21-01-2015 for an amount of Rs. 41,999/-. The product became defective and entrusted to the 2nd opposite party who is the authorized service centre of the 1st opposite party on 19/05/2015 and the 2nd opposite party has replaced the phone. But the said phone also became defective within one months from the date of replacement. Ext. A3 and Ext. A4 shows that the replaced phone is also defective and the defect arose within the warranty period. According to the complainant she had purchased such an expensive product honestly believing the assurance given by the opposite parties but they failed to provide the assured service to the complainant. The phone became defective during the warranty period and the opposite parties failed to rectify the defect. The complainant proved her case by supporting documents hence we hold that there is deficiency in service on the part of the opposite parties. Therefore the complainant is entitled to get refund of the price of the mobile phone and the opposite parties are jointly and severally liable for the same.
In the result the complaint is allowed. The opposite parties are directed to refund the price of the mobile phone Rs. 41,999/-(Rupees Forty one thousand Nine hundred and ninety nine only) to the complainant. The opposite parties are further directed to pay an amount of Rs. 1000/- (Rupees Thousand only) towards the cost of the proceedings. The order shall be complied within one month from the date of the receipt of this order failing which the amount of Rs. 41,999/- shall carry interest @ 9% per annum from the date of order till realization. On complainant of the order the opposite parties can collected the MO1 from the office of the Forum.
Pronounced in open Forum on this the 31st day of March 2017.
Sd/- Smt. Jasmine D (Member)
Sd/- Smt.Elizabeth George (President)
Sd/- Sri. Antony Xavier(Member)
APPENDIX:
Evidence of the Complainant:
Ext.MO1 - Mobile phone
Ext.A1 - Copy of Bill
Ext.A2 - Customer Unit Receipt Dtd. 19.05.2015
Ext.A3 - New Customer Unit Receipt Dtd. 17.07.2015
Ext.A4 - Warranty card
Evidence of the opposite party: Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/SF
Typed by: Br/-
Comprd by:-
