CC No.332/2018                                                                          Date of filing:28.02.2018

                                                                                                 Date of Disposal:04.09.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE  4^th  DAY OF SEPTEMBER 2019

CONSUMER COMPLAINT NO.332/2018

PRESENT:

Sri    Venkatasudarshan  D.R.  B.Com,LL.M.,              …. President

Smt  L.Mamatha, B.A., (Law), LL.B.                              ….      MEMBER

COMPLAINANT:

Sri. Parambadi  Praveen Kumar

S/o Parambadi Narasimhulu,

26 years, Plot No.58,

Ground Floor, Wheelers road,

Extension Da Costa Square,

2^nd cross besides Café Deficiency in

service Costa Bakery Opp:Chirstian

Fellowship Church St. Thomas town,

Bangalore.

 (In person)          

 V/s

OPPONENTS:

1. Flipkart Internet Private Limited,

Represented by Manager/Head of

The office Ozone Manay Tech park,

56/18 & 55/09, 7^th floor,

Garvebhavipalya, Hosur road,

2. Health & Happiness Private Ltd.,

Represented by Proprietor of

Firm/shop No.79, Kizhmuthalapedu,

Panapakkam village

Gummidipoondi village,

(Opponent Nos.1 & 2 Sri. Nagaraja. S, Advocate)

3. M/s HCL Bangalore

Represented by Service Manager,

No.352, AR Plaza Opp. Allahabad

Bank, Next to Manyavar show

Room, CMH road, Indiranagar,

4. Lenevo India Pvt. Ltd.,

Represented by Manager/Head of

The Office Ferns Icon, Level-2,

Doddanekkundi village,

Marathhalli Outer ring road,

Marathhalli post, K.R. Puram,

Hobli, Bangalore-560037.

 (Opponent  Nos.3 & 4 are exparte)

= = = = = = = = = = = = =                                         

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 against M/s Flipcart Interest Pvt. Ltd., and 3 others by the complainant Sri. Parambadi Praveen Kumar praying for a direction to the opponents to pay a sum of Rs.10,499/- by way of refund being the value of the mobile purchased and also to pay a further sum of Rs.30,000/- as compensation and Rs.800/- being the amount collected for the replacement of charging port together with Rs.5,000/- being the cost of litigation.

2.   The brief facts of the case of the complainant as per the complaint are that, the complainant had purchased “Lenovo Vibe K-5 Note Silver 32 GB” a mobile phone from Flipcart.com and the said order was fulfilled by opponent No.2 the health and happiness Pvt. Ltd.,.  The said mobile was gifted to his mother by the complainant.

3. It is the further case of the complainant that from very beginning of the purchase the mobile phone had serious problems like overheating, excessive fast discharge of full battery within 5 to 6 hours and lagging in response time.On 12.12.2017 the complainant gave the mobile to opponent No.3 the service center for diagnosis and repair.The opponent No.3 informed that the heating issue was because of the defect in the charging port which was replaced at a cost of Rs.800/- by informing that replacement of the charging port does not come under warranty.

4. It is the further case of the complainant that even after changing the port by way of replacement the problems did not decrease the phone was even getting more heated and the battery was being drained out within 3 to 4 hours.The phone used to get hot, if used for 2 to 3 minutes.Aggrieved by these chronic problems the complainant had again taken the mobile to the service station on 02.02.2018.The opponent No.3 retained the mobile for 3 days only to inform that the issue is with the battery and the mother-board and the said problem was resolved and asked the complainant to collect the mobile back.The complainant was satisfied with the mobile which was given to him by his mother.It is pleaded that the complainant was not satisfied with the explanation given by opponent No.3 as it was not clarified whether the mother board and the battery were replaced or merely tinkered.For this reason and also for the reason that the mobile was dangerously getting hot each time when it was used the complainant was apprehensive that one day it may explored while using or being charged.Therefore the complainant requested to opponent No.3 to replace the mobile with new one or to refund the price of the mobile.The same was refused by opponent No.4 without assigning any reason.It is contended that the act of selling a defective mobile amounts to deficiency in service and hence this complaint.

5. There are 4 opponents in this case.After admitting the complaint the notices were ordered to be issued to the opponents.The opponents Nos.1 and 2 have entered appearance through their advocate.Opponent Nos.3 and 4 have remained absent even after the notice was served.Hence, the opponents Nos.3 and 4 were placed exparty.The opponents No.1 and 2 have filed separate version.

6. In the version filed, the opponent No.1 contended that it is only an intermediary which provides online market place platform/technology to the sellers and buyers of the produce to facilitate the transaction and thereby enable them to deal in various categories of goods including but not limited to mobiles, camera, computers etc.,.Therefore it is contended that the opponent No.1 is not answerable to any of the allegation made in the complaint.Therefore it is contended that the opponent No.1 is not the service provider and hence the C.P. Act is not applicable.Any transaction that take place online through the website of flipcart is only a transaction between the consumer who is a buyer and the actual seller of the product who directly raise invoice and send the same to the customer for the product sold.

7. The opponent No.1 does not admit that the complainant purchased one mobile phone i.e., “Lenovo vibe K-5 Note silver 32 GB” on 28.06.2017 for Rs.10,499/- from opponent No.2.It is contended that the opponent No.1 is only intermediary and neither it is a seller nor the manufacturer, producer or service center of the product.It is stated that the product purchased by the complainant was manufactured by opponent No.4 sold by 3^rd opponent.Thus the opponent no.1 does not associate himself with the alleged sale of product to the complainant.

8. The other allegations in the complaint that the mobile was getting heated up from the beginning, about the complainant approaching opponent No.3 have all been denied.It is contended that there was no communication what so ever between the complainant and 1^st opponent at any point of time.Due to want of knowledge and information the 1^st opponent has denied the averments made in para 4to 8of the complaint are not commented.It is contended that all the allegations are only against opponent Nos.3 and 4 who are manufacturer and the service center and it is only they who have got to answer and liable for the defects if any in the mobile and proved.For all these reasons the opponent No.1 has prayed for dismissing the complaint.

9. Opponent No.2 who has filed a separate version has contended that the complainant is guilty of suppression of true and material facts and also approached the forum with unclean hands.Hence, prays for dismissing the complaint.

10. Opponent No.2 contends that it is the carrying on the business of sale of goods manufactured or produced by others and having good reputation in the market.Opponent No.2 is not engaged in sale of any goods manufacturer or produce by itself.It is contended that the product sold by opponent No.2 carries manufacturer’s warranty.As a reseller the opponent No.1 transactions are limited only to the selling of the products of various manufacturers.There is no complaint made by the complainant against the opponent No.2 for the shortage of supply nor any deficiency in service.The liability to provide after sale service does not lie upon the opponent No.2.They are the responsibility of opponent Nos.3 and 4 who are the manufacturer and seller respectively.It is however admitting that the opponent No.2 is an online reseller registered on “Flipcart.com”.Irrespective of the warranty provided by the manufacturer, the opponent No.2 as a goodwill gesture provides 10 days time to the customers for return and replacement of the product if there is any issue.In the instant case since the complainant had used the product for 6 months continuously and then contacted the service center opponent No.3, no liability can be fastened on it.Hence, contended that opponent No.3 is not at all liable and prayed for dismissal of the complaint.The opponent No.2 has not denied the complainant purchasing the said mobile from opponent No.2 through flipcart and the same was delivered in a sealed box to the complainant within the time specified and thus there is no deficiency in service.Hence, the complainant prayed for dismissing the complaint.

11. When the case was set down for recording evidence, the complainant has filed his affidavit evidence, sworn to the contents and got Ex.P.1 to Ex.p.5 marked.

12. On behalf of opponent No.1 one Mr. Amruth Prathap authorized signatory of flipcart and Mr. Peria Kadappan, the authorized signatory of opponent No.2 got examined and filed their affidavit as evidence on their side.The complainant has submitted arguments.No argument was advanced on the opponent side.

13.      The points that arise for our determination are:-

(1) Whether the complainant proves that there is deficiency in service on the part of the opponent?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

14.    Our findings on the above points are:-

Point No.1:- In the Affirmative

Point No.2:- Partly in the affirmative.

Point No.3:- As per the final order for the following.

15. Point No.1:- It is the case of the complainant that the “Lenovo-vibe K5 Note silver 32 GB” manufactured by the 4^th opponent was sold by the 2^nd opponent and delivered through the 1^st opponent as per the order placed by the complainant, the price for which the said mobile was purchased was Rs.10,499/-.The 3^rd opponent is the authorized service center.All these aspects are not in dispute.It is the case of the complainant that the mobile in question had a manufacturing defect as there was a problem with a mobile board and battery due to which the set is getting heated up fast.

16. The burden of providing the above aspect is on the complainant.The complainant has filed his affidavit evidence reiterating all the complaint averments.Since the averments in the complaint have already been discussed at length in the above paras there is no need for us to again repeat the averments made in the affidavit.The complainant has produced certain documents they are the service order dated 02.02.2018 issued by the Lenova exclusive service center and marked as Ex.P.1.The Lenova service order issued by service center HCL, Bangalore marked as Ex.P.2.Ex.P.3 is the tax invoice which shows that the price of the mobile purchased by the complainant was Rs.10,499/-.

17. The 1^st opponent has delivered the product to the complainant.Since admittedly the mobile which was purchased on 28.06.2017 which was delivered by 1^st opponent did not have any problem till 12.12.2017, the 1^st opponent cannot be held liable for the problems which arose in the functioning of the mobile on and from 12.12.2017.There was no complaint of short delivery or the product delivered was damaged, deficient etc.,.Therefore the 1^st opponent cannot be saddled with any liability for the complaints which the complainant is alleging in the complaint.

18. Though the complainant avers that the mobile had problem from the beginning itself like over heating, excessive over charging, no document is produced to substantiate the same.The record shows that the mobile was taken to the 3^rd opponent service center for the first time only on 12.12.2017.

19. Similarly opponent No.3 being the seller of the product also cannot be held liable because the mobile which was sold on 28.06.2017 had worked well without any problem almost for 6 months till 12.12.2017 the date on which the mobile was taken to the service center for the first time ever since it was purchased.The problems which arose subsequently was due to excess heating for which either the manufacturer of the product or the service center for having not repaired the set properly are to be held liable.This is however subject to the complainant proving that there was such persistent problem of over heating in the mobile while in use.

20. It is the case of the complainant that on 12.12.2017 he gave the mobile set for the first time to the service center i.e., opponent No.3 as there is a heating issue.The opponent No.3 after examining the same told that there was a defect in the changing port.Accordingly it was changed and the opponent No.3 had collected Rs.800/- from thecomplainant though it was within a warranty period by saying that the charging port is not included in the warranty.To show the payment of the said amount the complainant has produced the bank statement of his account maintained at Punjab National Bank and the same is marked as Ex.P.4.

21. It is the case of the complainant that after the mobile set was repaired by the 3^rd opponent by replacing the charging port on 12.12.2017, the problem did not decrease.Instead it was on the increase.It was getting more and more heated up while in use.The instrument was being used by the mother of the complainant to whom the complainant claims to have gifted.It is on record that the problem of excess heating again cropped up on 02.02.2018.It is the case of the complainant that when the mobile was taken to opponent No.3, he was informed that there was an issue with battery and mother board which has been resolved and asked the complainant to collect the hand set.But the complainant was not satisfied with the explanation given as the opponent No.3 did not say whether the mother board and battery replaced or merely tinkered.The complainant had submitted before the Forum on 09.07.2019 that hte mobile set is in the service center itself even to this day.

22. From the evidence and pleadings available on record it can easily be stated that all the allegations in the complaint are mainly on opponent Nos.3 and 4 only namely viz., the service center and manufacturer.It is for the opponents Nos.3 and 4 to meet these allegations effectively.But unfortunately in this case both opponent No.3 and 4 have remained absent and as such they were placed exparte vide order dated 30.04.2018.Even subsequently they did not appear in this case and contested.By this conduct the opponent Nos.3 and 4 have impliedly admitted all the complaint allegations made against them.If that were not to be so nothing prevented them from appearing before the Forum and contests the case by filing version.So the non-filing of the written version traversing the allegations made in the complaint amounts to admission of the allegations made in the complaint.In this context we may refer the decisions of the Hon’ble National Commission reported in 2018 (1) CPR 314 (NC) in M/s Singla Builders and Promoters Ltd., V/s Aman Kumar Garge and another decision reported in 2018 (1) CPR 325 (NC) in Kotak Mahindra Old Mutual Life Insurance Ltd., V/s Dr. Nishi Guptha.The e-mail communications made by the complainant time and again and the reply given to the complainant are also produced which are in 2 sheets and marked as Ex.P.4.From all these it is clear that the mobile purchased by the complainant manufactured by opponent No.4 is not in a working condition and the same is retained in the opponent No.3 service center itself.The opponent Nos.3 and 4 have not bothered to respond to the request of the complainant.All these amounts to an inadequacy in performance on the part of the opponent Nos.3 and 4.This certainly amounts to deficiency in service on the part of the opponent Nos.3 and 4.Accordingly, we answer point No.1 in the affirmative and in favour of the complainant.

23. Point No.2 :- In view of finding recorded on point No.1 in the affirmative against opponent Nos.3 and 4, the next aspect  to be considered  is to which the reliefs to which the complainant is entitled. 

24. The complainant has sought for direction to the opponent to refund a sum of Rs.10,499/- being the price of the mobile.  This prayer cannot be straight away considered because though there is evidence to show that the mobile in question as some problems issues in its functioning, there is no positive evidence produced by the complainant to show that mobile has manufacturing defect.  Therefore the proper relief that could be given to the complainant is to direct opponent Nos.3 and 4 to effect necessary repairs to the mobile by replacing parts with new one where ever necessary and make it 100% functional and safe and deliver the same to the complainant with extended warranty for one year.  This opportunity has given to opponent Nos.3 and 4 so that they need not replace the mobile with a new set.  However, if for any reason the opponent Nos.3 and 4 cannot effect repairs and make it 100% functional, they should be directed to return the proportionate amount to the complainant.  It is not in dispute that the mobile was purchased on 28.06.2017.  It is on record that the  mobile had no serious problem till 12.12.2017, the date on which it was taken for the 1^st time to the 3^rd opponent service center.  That means the mobile was worked for 6 months.  Therefore out of the price amount of Rs.10,499/- (rounded off Rs.10,500/-) deducting a sum of Rs.1,500/- (as the mobile worked for six months) we deem it fit and proper to direct the opponents Nos.3 and 4 to return a sum of Rs.9,000/- to the complainant.  The mobile set has been with the opponent only.  Therefore we also of the view of that above said amount of Rs.9,000/- should carry interest at the rate of 8% p.a. to be calculated from 02.02.2018 up to the date of actual payment.

25. Because of the mobile getting heated intermittently the complainant or his mother was always exposed to risk of damage to life or property.  This has necessarily caused lot of mental anxiety physical strain which lead to mental agony.  In addition to this the complainant had to run to the service center often to get the mobile repaired.  This must have caused lot of harassment.  All these to be properly compensated.  Under the facts and circumstances we award a sum of Rs.4,000/- as compensation under the head of mental agony.

26. The opponent Nos.3 and 4 having not properly attended to the repairs work of the mobile and also not having properly responded have driven the complainant to file this complaint in the year 2018 and fight this case to take the same to the logical end.  Necessarily the complainant must have incurred expenditure.  Therefore we award a sum of Rs.2,000/- being the cost of litigation.  Accordingly we answer point No.2 partly in the affirmative against the opponent Nos.3 and 4.

27. POINT NO.3:- In the light of the discussions made above, we hold that the complaint filed against opponent Nos.1 and 2 is liable to be dismissed.  However, the complaint filed against opponent No.3 and 4 is partly allowed.  Accordingly, we pass the following final order,

ORDER

     The complaint filed Under Section 12 of Consumer protection Act by Sri. Parambadi Praveen Kumar is allowed in part as under:-

      The complainant is entitled to receive a sum of Rs.9,000/- (Nine thousand) only  together with interest 8% p.a. to be calculated from 02.02.2018 up to the date of actual payment from the opponent Nos.3 & 4.

     The complainant is also entitle to receive a sum of Rs.4,000/- (Four Thousand)  only  from the opponent Nos.3 & 4  as compensation towards mental agony undergone by them.

     The complainant is also entitle to receive a sum of Rs.2,000/-  (Two thousand) only  from the opponent Nos.3 & 4 being the cost of  litigation. 

     The opponent in all pay a sum of Rs.15,000/- (Fifteen thousand only) to the complainant within 30 days from the date of this order failing which the opponent is liable to pay interest at the rate of 10% p.a. on the above said sum from 02.02.2018 till the date of actual payment.

     The opponent Nos.3 & 4 shall comply with the above within 30 days from the date of this order.

     Complaint filed against Opponent Nos.1 and 2 is dismissed.

                 Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 4^th day of September 2019  )                                            

  (L.Mamatha)                                 (D.R. Venkatasudarshan )      

     Member                                                    President.   

                                //ANNEXURE//

Witness examined for the complainant side:

1. Sri. Parambadi Praveen Kumar, who being the Complainant has filed his affidavit.

Witness examined for the opponent side:

1. Ms. Amrita Pratap, Authorized signatory of opponent No.1 has filed his affidavit.                       
2. Mr. Periyakaruppan P.L., Authorized signatory of opponent No.2 has filed his affidavit.

Documents marked for the complainant side:

1. Invoice copy of the mobile purchased.
2. Service order receipt of M/s HCL Bangalore-1.
3. Service order receipt of M/s HCL Bangalore-2.
4. Mail communication with Online Lenovo Customer Service.
5. Statement of credit card- Charged against replacement of charging port (Rs.800/-).

Documents marked for the opponent side: