Orissa

Rayagada

CC/126/2018

Shri L.M. Patnaik - Complainant(s)

Versus

Flipkart Registered Office Consulting Rooms Pvt. LTD., - Opp.Party(s)

Self

06 Feb 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

 

C.C. Case  No. 126 / 2016.                                           Date.   6    .02.  2019

 

P R E S E N T .

Dr. AswiniKumar  Mohapatra,                                    President.

Sri  Gadadhara  Sahu,.                                                                    Member

Smt. Padmalaya  Mishra,                                                              Member

 

            Sri  L.M.Patnaik, S/O: Late Dandapani Patnaik,  At: Raniguda Farm,              Po/Dist:Rayagada  (Odisha).                                          …. Complainant.

            Versus.

            1.The  Manager, Flipkart, Registered office, Consulting rooms Pvt. Ltd.,         House No. 37/3, Old Rajender Nagar,  Near Water tank, Central Delhi,        New Delhi- India-  110060.

            2.The Manager,  Flipkart  Consulting Roooms Pvt. Ltd., Aarn Projects situated at Old Delhi Road, Shimila, Mouza, Dist:Hoogly, Kolkata, West   Bengal, India-712249.                                                      … Opposite parties.

For the Complainant:-Self..

For the O.Ps :- Sri R.K.Jena, Advocate, Rayagada(Odisha).

•  

JUDGEMENT

                The  present dispute arises out of the complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for non refund of mobile price  which was purchased through on line.   The brief facts of the case  has summarised here under.

            That the complainant was purchased one hand set mobile phone WM94691 HONOR  HSN85171290  having the E.M.I No. 864068033726037 and  No.864068033762040 for a cash price of Rs. 11,999.00   vide on line  invoice  No. FAAAK11800106774 from the above O.P No. 2 on DT.16.10.2017 and it was despatched to the complainant to his  address which is given above in the cause title and the amount of  bill  was also prepared in his above address.  It has started so many  problems during the   warranty  period i.e.  Touch screen was not properly functioned, battery is not and downed inter alia  automatically is was switched off.   The matter  was reported to him through Flipkart but there is  no response. The complainant having failed to get it repaired  through their service centre.  Hence this case. The complainant prays the forum direct the O.Ps to refund  mobile price a sum of Rs. 11,999/- and  such other relief as the hon’ble forum deems fit  and proper  for the best interest of justice.

            On being noticed the O.Ps appeared through their learned counsel and filed  written version  jointly.  The O.Ps submitted that  the present complaint  is not maintainable and liable to be dismissed. The O.P submits  that the products sold by the O.P carries manufacturer’s warranty.  As a seller, involvement of O.P  the entire  transaction is limited only to selling the products of various manufacturers and in the  present complaint, the  manufacturer has not been impleaded as an  O.P.   It is reiterated that  O.Ps. is an online reseller  and the products sold by  the O.P. carries warranty issued/provided  by the respective manufacturers against manufacturing defects subject to the terms and conditions determined by the manufacturers only.  The O.Ps vehemently  contended that   this forum has no jurisdiction   to  try this case.

 

Heard arguments from the O.Ps   and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                        FINDINGS.

From the records it reveals that, the complainant has purchased a mobile set WM94691 HONOR  HSN85171290  having the I.E.M.I No. 864068033726037 and  No.864068033762040 from the O.P No.2 by paying a sum of Rs.11,999/- vide online invoice FAAAK11800106774 Dt. 16.10.2017. But unfortunately after delivery with in  warranty period the above  set found defective and not functioning. The complainant complained the OPs for necessary repair in turn the OPs  paid deaf  ear.  

There is no dispute that the product was supplied  to the complainant on Dt.16.10.2017  to the complainant.

 

            The O.Ps  in their written version contended that duty to remove the defect in the product is on the manufacturer of the product or the authorized service centre of the  product. For the above contention  we relied the citation .  It is held and reported  in CTJ-2005, Page No. 1208 the hon’ble  Commission where  in  observed  “Both the dealer & manufacturer of the  product having defects  in it, are jointly and severally liable to the  purchaser, because he knows only the dealer from whom he purchased that  product and not its manufacturer”.  Further in the Written version no where the O.Ps  have   mentioned  the manufacturer address so as this forum  will direct the  manufacturer  to comply the same.  Due to non mention  of  the  manufacturer  address  detail    in the  written version  or  in the  bill   this forum observed    the O.Ps  are held responsible for refund  of the  price  of the above product.

 

Further   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”

           

            During the course hearing the complainant  filed Xerox copies  of  Tax  invoice No.  FAAAK11800106774 Dt. 16.10.2017 which is marked as Annexure-I.  Perused the above invoice. On perusal of the  invoice it is revealed  that  the O.Ps No.1 & 2 addresses were  mentioned. For this we perused another citation reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally.  Though you have not mentioned any where the manufacturer address  so you are liable to  refund the  price of the above product.

 

            The O.Ps in their written version relied citation  it is held and reported in  SCC 2000(10) page No. 654 in the case of Hindustan Motor Ltd., and another Vrs. N.Sivakumar and   another  citation  it  held and reported in  CPJ- 2008 page No. 336  in the case of  Abhinandan  Vrs. Ajit Kumar verma and ors. the Apex court where in  observed “The dealer or retailer   can not be held liable for defect/damage  in the good/products”.

           

Now we have to see whether there was any negligence of the OPs  in providing  after sale service  to the complainant as alleged ?

We perused the documents filed by the complainant.  Since the mobile set found defective after its purchase    and   the complainant  informed the OPs regarding the defect but the  OPs   failed to remove  the defect . At this stage we hold that  if the mobile set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective mobile set  is sold to the complainant , the complainant is entitled to get refund of the price of the article or to replace a new  one or  remove the defects  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss.  In the instant case  as it is appears that the mobile set  which was purchased by the complainant had developed  defects and the O.ps were unable to restore its normal functioning during the warranty period. It appears that the complainant invested  a substantial amount and purchased the mobile set  with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the mobile set  for such  and the defects were not removed by the O.Ps who  know the defects from time to time from the complainant.

 

In the present  case the O.Ps are jointly and severally  liable.

 

Hence, in our view the complainant has right to claim compensation to meet  his mental agony, financial loss. Hence,  it is ordered.

 

                                                                        ORDER.

          In  resultant   the complaint petition stands  allowed  in part on contest against the O.Ps.

The O.Ps are ordered to take back their product  and  refund price of the Mobile  set   a sum of Rs. Rs.11,999/- to the complainant.  Parties are left to bear their own cost.

 

The O.Ps are ordered to comply the above direction within 45 days from the date of receipt of this order .

Dictated  and  corrected  by  me.

                Pronounced on this    .      6^th.          Day    of     February,  2019.

 

 

Member                                                           Member.                                              President