Before the District Consumer Disputes Redressal Commission, Rohtak.
Consumer Complaint No. 55
Instituted on : 20/01/2022
Decided on : 29.08.2024
Mr. Sahil Chawla, 26 son of Shri Ashok Kumar Resident of House No. 987/30, New Chinyot Colony, Rothak
……..….Complainant
Vs
- Flipkart, Regd. Office at Aarna Ventures Private Limited, R7B, IInd floor, Green Park Market Extension, New Delhi-110016 through its Managing Director.
- Khushi Communication, Authorized Service centreRealme Mobiles, office at 1st floor Naryana Complex opposite NiliKothi near Choturam Chowk, Rohtak, Haryana 124001.
- Realme India, Regd. Office at Tower-B, Building No.8, DLF Cyber City, DLF Phase-2, Sector-24, Gurugram, Haryana.(Manufacturing Company).
……..opposite parties
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT, 2019.
BEFORE: SH. NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJDENER SINGH, MEMBER.
Present: Sh.AshokMakkar Advocate for the complainant.
Sh.KunalJuneja Advocate for opposite party No.1.
Sh.Parmod Kumar Sharma, Advocate for the opposite party No.3.
Opposite party No.2 exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the present complaint, according to the complainant,are that he had purchased a Mobile Phone model Realme X7 5G, Nebula 128 GB having IMEI no.862044054299990 for Rs.19,999/- vide invoice no. FAFPBJ2200000021 dated 27.04.2021 through online shopping platform established by OP no.1 in exchange of his old mobile phone Samsung J7 prime and got the discount of Rs.4,000/-. The said mobile phone was manufactured by opposite party no. 3 and the opposite party no.3 company provided the brand warranty of one year for the said mobile phone and six month warranty for its accessories from the date of its purchase i.e. 27.04.2021. After few days of purchase, said mobile phone started creating problems and there were issues in its finger print sensor and auto restart. The complainant visited the service centre (OP no.2) of opposite party no. 3 for removal of the defects but the opposite party no.2 service centre only updated the software of the mobile phone on 07.06.2021 and returned the mobile set to the complainant. The complainant visited the opposite party no.2 with same defects and issues for about 4 times i.e. on 07.06.2021, 11.06.2021, 14.08.2021 and 21.12.2021, but the problem in the mobile set still persists, which clearly shows that there is some manufacturing defect in the mobile set. Hence, by alleging deficiency in service on the part of opposite parties, the complainant seeks directions against the opposite parties to refund the amount of Rs.19,999/- along with interest, compensation of Rs.100000/- on account of mental tension & harassment and Rs.22000/- as litigation expenses besides any other relief which this Commission may found deem fit and proper.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party no.1 in its reply has submitted that the 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 product(s) 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 opposite party does not directly or indirectly sells any products on flipkart platform. Rather, all the products on flipkart Platform are sold by third party sellers, who avail of the online marketplace services provided by the opposite party, on terms decided by the respective seller only.In the instant complaint also, the grievance of the complainant is with regard to the alleged defects in the goods and after sale service provided by the manufacturer of opposite party no.3. The opposite party neither offers nor provides any assurance and/or offers warranty to the end buyers of the product. The complainant has wrongly arrayed the opposite party in the present complaint because the opposite party is neither a ‘trader’ nor ‘Service provider’ and there does not exists any privity of contract between the complainant and the opposite party. Accordingly, dismissal of present complaint has been sought by the complainant.
3. On the other hand, opposite party no. 3 filed its separate written statement submitting therein that the complainant has not approached this Hon’ble Commission with clean hands as there has been a deliberate and dubious attempt on the part of the complainant to mislead this Hon’ble Commission. The complainant visited at authorised service centre of the opposite party on 07.06.2021 for ‘finger print sensor not working sometime & Auto restart issue’ and only software was updated and the issues were resolved and the device was returned back to the complainant on the same day itself. The complainant second time visited the authorised service centre on 14.08.2021 with the same issue but as no issue was found, the device/handset was returned back to the complainant on the same day. Again on 21.12.2021, the complainant third time reported the same issue in which only software was updated and the device was returned. There is no deficiency in service or unfair practice on the part of the opposite party as there is no any manufacturing defect in the device found. The opposite party has never denied any service to the complainant and as such, whenever the complaint was received, the opposite party had provided the services to the complainant. Accordingly, the dismissal of the complaint has been prayed qua opposite party no.3.
3. However, OP no.2 did not appear before this Commission despite due service through registered post and ultimately the opposite party no.2 was proceeded against exparte vide order dated 29.04.2022 of this Commission.
4. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C6 and has closed his evidence on 17.01.2023. On the other hand, Ld. Counsel for the opposite party no.1 has tendered document Ex.R1 and closed his evidence on dated 04.07.2023.Similarly, the counsel for the opposite party no.3 also closed his evidence on 17.03.2023 after tendering affidavit Ex. RW2/A and documents Ex.R2/1 to Ex.R2/6 in his evidence.
5. We have heard learned counsel for the parties at length and have gone through the material aspects of the case very carefully.
6. We have perused the documents placed on record by both the parties. As per bill Ex.C1, complainant had purchased the mobile set on 27.04.2021. As per the job sheets placed on record by the complainant dated 07.06.2021 Ex.C2, dated 11.06.2021 Ex.C3, dated 14.08.2021 Ex.C4 and dated 21.12.2021 Ex.C5, the complainant deposited his mobile set with the opposite party no.2 with same defects i.e. “Finger print not work sometime/auto restart issue any application using time” and on every job sheet the solution is written as “Software upgrades”. As per our view if the problem was not resolved by updating the software by one or two times then why the opposite parties again and again tried to remove the defects by updating the software and did not fix the problems permanently. Moreover it is an android phone and the software should have been updated automatically. But the repetition of same defects in the mobile phone just after two month of its purchase shows that there is some manufacturing defect in the mobile phone and the opposite party no.3 being manufacturer is liable to refund the price of mobile set.
7. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.3 to refund the amount of Rs.19999/-(Rupees nineteen thousand nine hundred and ninety nine only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 20.01.2022 till its realisation and also to pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
29.08.2024.
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Nagender Singh Kadian, President
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TriptiPannu, Member.
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Vijender Singh, Member
