BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint No.212/2018.
Date of instt.:24.8.2018.
Date of Decision:30.11.2018
Khushboo Gera w/o Shri Lalit Gera, r/o Kaithal, Distt. Kaithal. ……….Complainant.
Versus
- Flipkart Internet Pvt. Ltd., Vaishnavi Summit No.6/B, 7th main 80 Feet Road, IIIrd Block, Koramangla, Bangalore-560034 through its Manager/Director.
- M/s Jyoti Mobiles, Shop No.4, Opp. Jaat School Ground, Karnal Road, Kaithal.
- Xiaomi India, C/o IKEVA, Business Centre, 8th Floor, UMIYA Business Bay Tower-1, Cessna, Business Park, KADUBEESANAHALLI, MARATHAHALLI, Sarjapur outer ring road, Bangalore-560103.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Shri Jagmal Singh, President.
Shri Rajbir Singh, Member.
Smt. Suman Rana, Member.
Present: Shri Hem Raj Wadhwa, Advocate for the complainant.
Shri Vikram Tiwari, Advocate for the Opposite Party No.1.
Opposite Party No.2 ex parte.
Shri Dheeraj Sachdeva, Advocate for the Opposite Party No.3.
ORDER
(RAJBIR SINGH, MEMBER).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that she has purchased online mobile Redmi Note-4 WE73842 from respondent No.1 vide Invoice No.FOYOG03118-00175029 dt. 29.4.2017 for a total sum of Rs.12999/-. It is further alleged that in the last week of December 2017, her mobile became defective and screen fracture including no display, abnormal display, phone does not vibrate nor ring, phone calls does not start and hand, battery backup has been stopped. It is further alleged that she visited respondent No.2 for its repair and replace of said mobile, who demanded Rs.1000/- for its repair and she requested that mobile is within warranty, but the respondent No.2 has been postponing to repair on one pretext or other and finally refused to do the needful. This way, the OPs are deficient in service. Hence, this complaint is filed.
2. Upon notice, representative of opposite parties No.1 & 3 appeared, whereas, no one appeared on behalf of the Opposite Party No.2 and as such, OP No.2 was proceeded against ex parte vide order dt. 29.10.2018. The opposite party No.1 filed reply submitting therein that Flipkart Platform is an electronic platform which acts as an intermediary to facilitate sale transactions between independent third party sellers and independent end customers. The independent third party sellers use the Flipkart to list, advertise and offer to sell their products to the users/buyer who visit the Flipkart Platform; that once a buyer accepts the offer for sale of the products made by the third party seller on the Flipkart, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Flipkart Platform; that answering OP 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 separate entity being controlled and managed by different person/stakeholders. The answering OP does not directly or indirectly sells any products on Flipkart, rather all the products on Flipkart are sold by third party sellers and in the instant case, it is evidence from the invoice that the actual seller of the product is a third party seller and not the answering OIP herein and the complainant has wrongly arrayed the OP in the present complaint; that any kind of assurance, whether in terms of warranty on the products, price, discounts, promotional offers, after sale services or otherwise, are offered and provided by the manufacturer of the products sold on Flipkart; that complainant does not fall under the category of consumer of the answering OP; that the complainant himself has admitted in the content of Para No.3 that the complaint is about grievances against authorized service centre i.e. OP No.2 and the complainant has not raised a single specific issue or grievance against the answering OP in the entire complaint. On merits, the rest of the contents of the complaint are denied and prayed for dismissal the same.
The OP No.3 filed reply submitting therein that the complaint filed by the complainant is false, frivolous, concocted as the complainant has not submitted any evidence such as purchase invoice and job sheet in connection with any alleged visits to the authorized service centre of OP No.3; that the complainant has not provided any evidence regarding manufacturing defects in the product. The rest of the contents of the complaint are denied and prayed for dismissal the same.
3. In support of the case, the complainant tendered in evidence affidavit Ex.CW1/A; document Ex.C1 and closed the evidence on 13.11.2018. The OPs No.1 & 3 tendered in evidence affidavit Ex.RW3/A and closed the evidence on 20.11.2018.
4. We have heard the ld. counsel for the complainant as well as the OP No.2 and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. From the pleadings and evidence of the case, it is clear that the complainant purchased a mobile Redmi Note-4 WE73842 from OP No.1 vide Invoice No.FOYOG03118-00175029 dt. 29.4.2017 for a total sum of Rs.12999/- Ex.C-1.
6. According to the complainant, the said mobile became defective and creating problems like screen fracture including no display, abnormal display, phone does not vibrate nor ring, phone calls does not start and battery backup has been stopped. It is further argued that the complainant visited OP No.2 for repair and replacement of the said mobile, who demanded Rs.1000/- for its repair. The complainant requested that mobile is within warranty, but the OP No.2 refused to do the needful. It is further argued that the OP No.2 has not issued the job-sheet inspite of request of the complainant. However, it is pertinent to mention here that the OP No.3 has not stated anything in his reply about the defects in the mobile set in question, rather, the OP No.3 contended that the complainant failed to produce the alleged purchase invoice reflecting proof of his alleged purchase of the product and proof of alleged visit to the service centre of OP No.3 such as job sheet etc. But this contention of OP No.3 has no force, because the complainant produced Invoice as Ex.C1 on the case file. The complainant argued that the OP No.2 has not issued the job-sheet and the reason for not issuing the job-sheet can be explained by the OP No.2, who has instead of contesting the complaint, opted to be proceeded against ex parte. The OP No.3 has failed to prove on the file that the defects of the mobile set in question were removed by OP No.3 or the mobile set in question has no manufacturing defect. On the other hand, the OP No.1 contended that he is not the manufacturer and he has an online market place and a platform for different sellers to sell their products. According to Section 79 of the Information Technology Act, 2000, the OP No.1 is exempted from liability for third party information, data or communication link made available or hosted by it.
7. To prove its version, the complainant has filed her affidavit Ex.CW1/A and invoice Ex.C1 on the file. So, in these facts and circumstances of the case, we are of the considered view that the OPs No.2 & 3 are failed to resolve the grievance of the complainant, hence, the OPs No.2 & 3 are deficient while rendering services to the complainant.
8. The complainant has prayed in the complaint for refund of the amount of Rs.12,999/- ‘the cost of the mobile phone in question. At the time of argument, the complainant stated that she has purchased a new mobile set and so, the mobile set in question is of no use for her. In this regard, we can rely upon the authority decided by Hon’ble State Commission, Haryana bearing first appeal No.460 of 2014 decided on 28.05.2014 titled as Deepjot Singh Vs. The Mobile Store. In the said authority, the Hon’ble State Commission has allowed the refund of cost of the mobile after making deduction of 30% as the mobile set was used near about one year. In the present case, the complainant had used the mobile set in question for less than eight months, so, keeping in view the above citation, we are of the considered opinion that the interest of justice will be met if the cost of mobile set be ordered to be refunded after making 20% depreciation of the same.
9. Thus, as a sequel of above discussion, we allow the complaint partly and direct the OPs No.2 & 3 to pay Rs.10,400/- to the complainant ‘the cost of the mobile set after deducting 20% depreciation (i.e. Rs.12,999 - Rs.2599 = Rs.10,400/-), subject to deposit of defective mobile set alongwith its accessories with the service centre. No order as to costs. Let the order be complied with within 30 days, failing which, the complainant shall be entitled interest @ 9% p.a. from the date of commencement of order till its realization. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.30.11.2018.
(Jagmal Singh),
President.
(Suman Rana) (Rajbir Singh)
Member. Member.
Present: Shri Hem Raj Wadhwa, Advocate for the complainant.
Shri Vikram Tiwari, Advocate for the Opposite Party No.1.
Opposite Party No.2 ex parte.
Shri Dheeraj Sachdeva, Advocate for the Opposite Party No.3.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is partly allowed. File be consigned to record-room after due compliance.
Dated:30.11.2018. Member. Member. President.
