Haryana

Kaithal

141/19

Shri Jaibir Singh - Complainant(s)

Versus

Flip cart Internet Private Ltd - Opp.Party(s)

Sh.Vikas Kumar

29 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.141/2019.

                                                     Date of institution: 23.05.2019.

                                                     Date of decision:29.07.2022.

Jaibir Singh S/o Shri Gaze Singh, resident of New Pyoda Road, Distt. Kaithal.

                                                                        …Complainant.

                        Versus

1. Flipkart Internet Pvt. Ltd., Vaishnavi Summit, No.6/B, 7^th main, 80 feet road, 3^rd block, Koramangala, Bangalore through its Managing Director/Authorized person.
2. Adilaxmi E-Commerce Pvt. Ltd., Ist and 2^nd floor, Supreme Overseas Export Building, KK Road 44/1 3^rd Cross, Jayanagar 7^th block, Bengaluru, Karnataka, through its Managing Director/Authorized Person.
3. Vivo Mobile India Private Limited, 10^th & 11^th Floor, Palm Springs Plaza (Complex) Village Wazirabad, Sector-54 Gurugram Gurgaon HR 122003, India through its Managing Director/Authorized Person.

….Respondents.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     DR. NEELIMA SHANGLA, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. RAJBIR SINGH, MEMBER.

       

Present:     Sh. Vikas Kumar, Advocate, for the complainant.   

                Sh. Vishal Digani, Advocate for the respondent.No.1.

                Sh. J.P.Jaglan, Adv. for the respondent No.2.

                Respondent No.3 exparte.

               

ORDER

DR. NEELIMA SHANGLA, PRESIDENT

        Jaibir Singh-Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the respondents.

                In nutshell, the facts of present case are that the complainant purchased Vivo mobile set vide order No.OD113716566401846000 for the sum of Rs.31,990/- from the respondent No.1 which was sent by respondent No.2 and manufactured by respondent No.3.  It is alleged that when the complainant received the mobile set which has already scratches on its body.  It is further alleged that the complainant approached the respondents to replace or return the defective mobile set but the respondents did not do so rather the respondents blocked the account of complainant.  Thereafter, the complainant sent legal notice to the respondents but the respondents neither give any reply of legal notice nor redressed the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of respondents and prayed for acceptance of complaint.     

2.            Upon notice, the respondents No.1 & 2 appeared before this Commission and contested the complaint by filing their separate written statements, whereas respondent No.3 initially appeared but did not appear on 18.03.2020, so, respondent No.3 was proceeded against exparte vide order dt. 18.03.2020 of this commission.  In the written statement, respondent No.1 raised preliminary objections with regard to locus-standi; maintainability; cause of action; that there has been no dispute contemplated under the Consumer Protection Act between the complainant and the answering respondent as the respondent No.1 is not the manufacturer of the product sold to the complainant and has no facility or knowledge to ascertain whether the product in issue in the present complaint is defective or has manufacturing defects; that the answering respondent is an online reseller registered on ‘Flipkart.com’.  The answering respondent is not the manufacturer but an online reseller and the products sold by respondent No.1 carries warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms & conditions determined by the manufacturers only.  There is no deficiency in service on the part of answering respondent.  On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

3.             Respondent No.2 filed the written statement raising preliminary objections that the answering respondent is a registered reseller on the website “Flipkart.Com” and sells products of other manufacturers; that the answering respondent is not engaged in the sale of any goods manufactured or produced by its own; that the answering respondent categorically denies the allegation of scratches on mobile screen in the product.  It is not out of place to mention here that no photographs have been attached with the complaint.  There is no deficiency in service on the part of answering respondent.  On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

4.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Anneuxre-C1 to Annexure-C3 and thereafter, closed the evidence.

5.             On the other hand, ld. counsel for the respondent No.2 made statement on 10.03.2022 to the effect that the written statement filed on behalf of respondent No.2 may be read in evidence on behalf of respondent No.2 and closed the evidence without tendering any documents and  respondent No.2 closed the evidence on 20.05.2022.

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             Sh. Vikas Kumar, Adv. for the complainant has argued that the complainant purchased Vivo mobile set vide order No.OD113716566401846000 for the sum of Rs.31,990/- from the respondent No.1 which was sent by respondent No.2 and manufactured by respondent No.3.  It has been further argued that when the complainant received the mobile set which has already scratches on its body.  It has been further argued that the complainant approached the respondents to replace or return the defective mobile set but the respondents did not do so rather the respondents blocked the account of complainant. 

8.             Sh. J.P.Jaglan, Adv. for the respondent No.2 has argued that the respondent No.2 is carrying on the business of sale of goods manufactured by others.  Counsel for the complainant Sh. Vikas Kumar has stated that the respondents sent the defective mobile set to complainant and lateron, the account of complainant was blocked and on 19.05.2018, the respondents refused to replace or refund the amount to complainant.  Reliance is placed on the authority given by Hon’ble Supreme Court in the case of Bharathi Knitting Vs. D.H.L. Worldwide 1996(4) SCC 704, in which it has been held that in case of specific term in the contract, the parties will be bound by the terms of the contract. 

9.             Since the defective mobile set was supplied to the complainant and lateron, the account of complainant was blocked.  Hence, respondents No.2 & 3 are jointly liable to make the payment of the mobile set amounting to Rs.31,990/- in equal share to the complainant within 45 days from today.  Hence, the present complaint is accepted with cost.  The cost is assessed as Rs.5500/- which will also be paid by the respondents No.2 & 3 jointly in equal share to the complainant. 

10.            In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:29.07.2022.    

                                                                (Dr. Neelima Shangla)

                                                                President.

 

       

(Rajbir Singh),            (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.