Date of Filing:28/07/2017
Date of Order:22/05/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated:22nd DAY OF MAY 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.2181/2017
COMPLAINANT/S | | |
| | Bharamappa.G., Age 61 years, Ashirwad Nilaya, 14th Cross, Nandish Layout, SIT Extension, Near Vidya Vahini College, Tumkur 572 102. Karnataka. Mob: 9731147008. (Sri TRK Adv. for complainant) |
V/s
OPPOSITE PARTY/IES | | |
| 1 | The Motorola Mobility India Pvt. Ltd., No.66/1, Plot No.5, 4th and 5th Floor, CVR Building, CV Raman Nagar, Near Bagemane Tech Park, Bangalore-560 093. |
| 2 | The Lenovo/Motorola Service center, B2X -051 B2X Flagship Bangalore, The High Street Building, #62, 11th Main Road, 4th Block, Jayanagar, Bangalore-560 011. |
| 3 | Flipkart India Pvt. Ltd., No.42/1 & 43,Kacherakanahalli Vilalge, Jadeganahalli Hobli, HOskote Taluk, Bangalore-560 067. (O.P.No.1 & 2 : In person) (Sri NS. Adv. for O.P.No.3) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT
1. This is the complaint filed by the complainant against the Opposite Parties(hereinafter referred to as O.Ps) under Section 12 of the Consumer Protection Act, 1986 praying this Forum to direct the O.Ps to pay a sum of Rs.28,999/- being the cost of the mobile purchased by him from O.P.No.1 and 2 and to pay a sum of Rs.4,50,000/- towards damages for harassment and for professional sufferance caused by the O.ps due to delay in getting the same repaired and further Rs.10,000/- towards expenditure to get the same repaired and to prefer this complaint before this Forum.
2. The brief facts of the complaint are that, complainant is a senior citizen. He placed an order to purchase MOTO X STYLE (Black 32 GB) mobile set of MOTOROLA Company through Flipkart online portal (O.P.No.3). On 3.10.2016 an amount of Rs.17,249/- was paid from his debit card with State Bank of India. He received the invoice bearing No.FOYQ 103017-00295539 on 5.10.2016. Since he purchased the said mobile under big billion offer, though the cost of the set was Rs.28,999/- they offered it for 17,249/-. After receiving the said set, he handed over it to his son Kiran Kumar.G for using the same.
3. It is stated that, the said mobile set started giving trouble in display, camera and network issues. On 10.4.2017 he approached the authorized Motorola Service center, Jayanagar, 4th Block, Bengaluru. The mobile set was under warranty. The said service center asked him to collect the set seven days thereafter. He waited for 40 days to get confirmation from the said service center regarding its repair and delivery. On 22.5.2017 he received the same. He was informed that the mother board of the set was replaced and IEMI got changed from 352342070803747 to 352342070115514.
4. When he was on tour the Thanjavoor, Tamilnadu, he asked his friend Gajula Karthik Kumar to collect the mobile set from the service center and when the said person went to collect the same, he found that display had some scratches and immediately contacted him and connected him with a service center over phone and after discussion the service center agreed that the display was faulty and they created another job sheet SRBBG 0011705230040 on 23.5.2017 to rectify the same. Till date of filing of the complaint, no communication received from the service center about its repair. The service center is claiming that there is a manufacturing defect from MOTOROLA company itself and requested him to make a complaint to the customer care of the Motorola company. Though he has contacted the Motorola company customer care and raised the issue, they wanted to take it to their higher authorities but did not do anything. Several communications and email have not given any results and the mobile set is lying with the 2nd O.P. In view of this, he had to issue a legal notice and since they did not comply the same had to file this complaint for the prayers as stated above.
5. Upon the service of notice, O.P 1 and 2 appeared before the Forum. Initially they agreed to refund the cost of the mobile set but later did not report the refund and also did not file their version inspite of the Forum giving several opportunities. O.p.No.3 remained absent upon the service of notice and placed exparte. At a later date, he made an application to set aside the same and same was allowed and he participated in the further proceedings of the case by filing his version.
6. O.P.No.3 in its version has admitted that, the complainant booked the mobile handset through its web site and made the payment. It is the specific case that, it is only a facilitators and not suppliers or manufacturers and not engaged in selling of goods manufacture on its own and at no point of time it became owner of the products over its platform. It is not involved in the sale of product to end customer. It is a wholesaler and is only engaged in B to B sales. There is no contractual obligation binding between it and the complainant. The complainant purchased the product from its online platform and the contract of sale is between the purchaser and the seller and it cannot be held liable for any deficiency. The seller of the product is an independent 3rd party seller registered on its market website i.e. Flipkart.com and not O.P No.3 herein. It has no role to play on the retail selling. No relief can be claimed against it. It has not given any kind of assurance, warranty of the product time or period of warranty or otherwise is offered by seller/manufacturer. The complainant has not approached with clean hands. It is not liable to refund the cost of the mobile set or damages as claimed by the complainant and hence prayed to dismiss the complaint.
7. We have carefully gone through the entire evidence and documents produced by the complainant and O.P No.3. After hearing their counsel, the following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Parties?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
8. Our answers to the above points are:-
POINT 1): In the Affirmative.
POINT 2):Partly in the Affirmative
As per the final order.
REASONS
ON POINT No.1:-
9. The complainant and the O.P No.3 have reiterated the facts of the complaint and the version in their affidavit filed in lieu of evidence respectively.
10. The admitted facts in this case are that, the complainant through O.P.No.3’s online platform placed order on 3.10.2016 to purchased MOTO X Style Black 32 GB mobile handset manufactured by 1st O.P. The same was delivered on 5.10.2016 and an amount of Rs.17,249/- has been paid against the cost prices Rs.28,999/- since he purchased the same under Big Billion sale offer. The correspondences produced by the complainant clearly go to show the same. The invoice, the service record, the correspondences are very clear that, after using the said handset for some time, handed over for repair to the 2ndO.P who is the authorized service center of O.P.No.1. The correspondences also shows that, there was some manufacturing problem in respect of the handset purchased by the complainant. The same has not been rectified and handed over to the complainant so far as per the allegations made by the complainant.
11. In spite of the service of notice and appearing before the Forum, O.P.No.1 and 2 have not filed their version denying the contents and allegations made in the complaint. In fact the very day of O.P.No.1 and 2 appearing before the Forum, upon service of notice, they informed that they would be refunding the amount of the mobile set for which they want to have the consent of the higher authorities. Afterwards, they did not revert back and informed the same. When this is taken into consideration, the say of the complainant is amplified. Hence we are of the opinion that there is deficiency in service in not selling a quality product to the complainant by O.P.No.1 through O.P.No.3 and that the defect in the handset of the mobile has not been rectified /repaired by the O.P.No.2 within reasonable time and thereby there is deficiency in service on the part of O.P.No.2 and selling of a defective product by O.P.No.1. Hence we answer Point No.1 in the affirmative.
POINT NO.2:
12. Though the complainant has sought for the refund of Rs.28,999/-, in the complaint, in fact, he has paid only Rs.17,249/- being the cost of the mobile handset, since he purchased the same through O.p.No.3 under big billion scheme. Hence he is not entitle for Rs.28,999/- whereas he is only entitle to the refund of Rs.17,249/- only along with interest at 12% per annum from 10.04.2017 the day on which he handed over the handset for service to the 2nd O.P till the date of payment of entire amount.
13. The 2nd O.P has not got the same repaired well in time. According to complainant, at the first instance he retained the handset for the period of 40 days from the date of handing over the set for repair i.e. on 10.4.2017. Even today O.P.No.2 has not returned the handset to the complainant after due repair.
14. If at all the said set has been repaired in all respect and ready to be delivered for the use of the complainant, O.P.No.2 when the notice of the complaint was served on him issued by this Forum, and upon appearance before this Forum he would have made it clear. As already pointed out, the version of O.p.No.1 and 2 has not been filed and that allegation and contention made by the complainant in the complaint has not been objected too, in view of the deficiency in service of O.P.No.1 and 2, though the complainant has sought for damages of Rs.4,50,000/- which has not been substantiated with supporting and convincing evidence, we are of the opinion that if a sum of Rs.25,000/- towards the damages for suffering physically and mentally in not getting the handset repaired well in time and a sum of Rs.10,000/- towards litigation and other expenses awarded would meet the ends of justice. Hence we answer Point No.2 Partly in the Affirmative and we proceed to pass the following:-
ORDER
- The complaint is partly allowed with cost.
- O.P 1 to 3 are jointly and severally hereby directed to pay a sum of Rs.17,250/- being the cost of the Mobile Handset i.e. MOTO X STYLE (Black 32 GB)purchased by him along with interest at 12% per annum on the above from 10.04.2017 till repayment of the entire amount. In case the amount is paid O.p.No.2 is hereby directed to return the handset to O.p.No.1 on behalf of the complainant.
- O.P No.1 to 3 are also directed to pay a sum of Rs.25,000/- towards damages for physical and mental harassment and Rs.10,000/- towards the litigation expenses.
- The O.Ps are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 22nd Day of MAY 2018)
MEMBER PRESIDENT
*RAK
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1:Bharamappa.G - Complainant.
Copies of Documents produced on behalf of Complainant/s:
Annexure-1: Copy of Invoice of mobile.
Annexure-2:Copy of job sheet dt:10.4.2017.
Annexure-3:Copy of job sheet dt: 23.5.2017.
Annexure-4:Copyof email communication with O.Ps.
Annexure-5:Copyof the email received from the consumer helpline with complaint.
Annexure-6:Copy of status of complaint registered against Motorola company.
Annexure-7:Copyo f the Written notice sent to Motorola company and service center dt:3.7.2017.
Annexure-8:Copy of the receipt sent through professional courier to Motorola Company and service center.
Annexure-9:Copy of Delivery status report of professional courier.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Mehek Sharma, Authorized Signatory of O.P.No.3.
Copies of Documents produced on behalf of Opposite Party/s
Annexure-1:Copy of the Certificate of Incorporation
MEMBER PRESIDENT
