DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FARIDKOT
C.C. No. : 211 of 2019
Date of Institution : 29.08.2019
Date of Decision : 16.11.2021
Atul Gupta aged about 50 years son of Late Sh M G Gupta resident of Faridkot, Punjab. .....Complainant
Versus
- Amazon through its Managing Director, Office at 26/1, Brigade Gateway, Dr Raj Kumar RD, Malleshwaram, Bangaluru, Karnataka, 560055.
- M/s Oppo Mobile India Pvt Ltd, through its Managing Director, Plot No.1, Udyog Vihar, GR, Noida, UP-201306.
- One Plus Exclusive Service Centre, through its Authorized Signatory, Hira Building, Municipal No. New 213 (Old#5), Ward No. 76, Richmond Town, Brigade Road, Banglore-560001.
....Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
(Now, Section 35 of the Consumer Protection Act, 2019)
Quorum: Smt Parampal Kaur, Member,
Sh Vishav Kant Garg, Member.
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Present: Sh Atul Gupta, Complainant in person,
Sh Neeraj Maheshwary, Ld Counsel for OP-1,
OP-2 and OP-3 Exparte.
ORDER
(Param Pal Kaur, Member)
Complainant has filed the present complaint under provisions of the Consumer Protection Act, against OPs for selling defective mobile and for seeking directions to OPs to pay Rs.41,999/- alongwith interest and for directing Ops to pay Rs.50,000/- as compensation for mental agony and harassment etc and Rs.11,000/-as litigation expenses.
2 Briefly stated, case of the complainant is that after going through the advertisements promoted by OP-1, complainant purchased ‘One Plus 6T’ mobile having model no. ONEPLUS A6010 S/N : 73ed7512 on 1st January, 2019 and amount of Rs.41,999/-was duly credited into the account of OP-1 from the account of complainant at State Bank of India, Faridkot and said mobile was delivered at the residential address of complainant. Ld counsel for complainant submitted that just after five months of purchase, said mobile set started giving him troubles as it was having inbuilt defects like drainage of battery within short span, volume of voice during calls considerably decreased. Multi touch issues were also there; time to unlock the
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phone with face recognition increased and complainant ends up unlocking the phone using pass code. Moreover, when mobile phone is placed on table, it starts showing pocket mode as on. Even while opening a particular app, then instead of said app another app starts working on screen of cell. There are numerous manufacturing defects in mobile phone sold by OPs and under compelling circumstances, he had to arrange another phone. Complainant brought the matter to the notice of OPs and sent them legal notice, in reply to which, OP-1 denied the selling of said product to complainant, whereas it is only OP-1 who sold defective product to him and OP-2 and OP-3 refused to accept the notice sent by complainant. All this has caused great harassment and mental tension to him, which amounts to deficiency in service and trade mal practice on the part of OPs. Complainant has prayed for seeking direction to Ops to pay Rs. 50,000/-as compensation for mental agony and harassment, Rs.10,000/-for litigation expenses besides the main relief. Hence, the instant complaint.
3 The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 02.09.2019, complaint was admitted and notice was ordered to be issued to the opposite party.
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4 OP-1 filed reply through counsel wherein took preliminary objections that complaint filed by complainant is not maintainable as complainant is not their consumer and does not fall under the definition of consumer and even they are not involved in any kind of trading activity, rather they act only as facilitator. Moreover, said product is neither manufactured or sold by them and even there is no privity of contract between complainant and answering OP and it is not liable for any non performance or breach of any contract entered into directly between complainant and independent third party seller. However, on merits OP-1 have denied all the allegations of complainant being wrong and incorrect and asserted that owner of website is Amazon Seller Services Pvt ltd and ASSPL does not sell or offers to sell any products and neither it advertises or endorses any produce or services on its website, rather it merely provides an online marketplace where independent third party sellers themselves are responsible for their products that are listed on the website by various third party sellers, nor does ASSPL intervene or influence any customers in any manner and it is neither involved in any sale transaction between the customer and seller nor it has any link or affiliation with the produced. ASSPL never hold out to public that products are of ASSPL’s manufacture or origin. Answering OP has denied the allegation of complainant that said product stopped working within five months of its purchase and
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asserted that said defects are manufacturing defects and same can be rectified only through the seller or manufacturer. Moreover, complainant never approached them or lodged any complaint regarding defects in said product and they have no knowledge about the grievance of the complainant. It is reiterated that answering OP is only a facilitator and is not liable for any defect in products. Further averred that ASSPL can only issue a replacement for defective product if complainant approaches them with regard to alleged grievance within return window policy that expired on 14.01.2019. grievance of complainant can be redressed only by manufacturer and answering OP-1 can not help him. Complainant is not their consumer as he has not purchased the said product from ASSPL, rather from the seller selling its products on the website of ASSPL. Bill produced by complainant is not issued by them and thus, ASSPL has no claim over said amount. It is reiterated that there is no deficiency in service on the part of answering OP. All the other allegations and the allegation with regard to relief sought too are denied being wrong and incorrect and prayed for dismissal of complaint with costs.
5 Notice issued to OP-2 and OP-3 through registered cover did not receive back undelivered. Acknowledgment might have been mis-laid or lost in transit. Statutory period expired, but despite several
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calls, nobody appeared on behalf of OP-2 and OP-3 in the Commission on date fixed either in person or through counsel. Therefore, vide order dated 02.12.2019, both OP-2 and OP-3 were proceeded against exparte.
6 Parties were given proper opportunities to lead evidence to prove their respective pleadings. Complainant himself tendered in evidence his duly sworn affidavit Ex.C-1, mail received from OPs Ex C-2, copy of account statement of complainant Ex C-3, legal notice Ex C-4, postal receipts Ex C-5 to Ex C-7, reply received from OPs Ex C-8, registered letter issued by complainant to OP Ex C-9, information regarding service centre of OPs Ex C-10 and then, closed his part of evidence.
7 To controvert the allegations of complainant, ld counsel for OP-1 tendered in evidence affidavit of Rahul Sundram Ex OP-1/1 and documents Ex OP-1/2 to Ex Op-1/4, copy of guidelines for Foreign Direct Investment (FDI) on E-commerce Ex C-5 and then, closed the same on behalf of OP-1.
8 We have heard learned counsel for complainant and have very carefully perused the affidavits & documents placed on the file by complainant as well as OPs, it is observed that case of the complainant is that
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after going through the advertisements promoted by OP-1, he purchased ‘One Plus 6T’ mobile having model no. ONEPLUS A6010 S/N : 73ed7512 on 1st January, 2019 and amount of Rs.41,999/-was duly credited into the account of OP-1. It was purchased on 01.01.2019, but just after five months, said mobile showed inbuilt defects like drainage of battery within short span, volume of voice during calls considerably decreased. Multi touch issues were also there, time to unlock the phone with face recognition increased and complainant ends up unlocking the phone using pass code. Even when mobile phone is placed on table, it starts showing pocket mode as on and while opening a particular app, other apps start working on screen. Legal notice was served upon OPs, but, OP-1 denied the selling of said product to him and OP-2 and OP-3 refused to accept the same. Complainant has paid huge amount of Rs.41,999/-to OPs for said product and it is huge deficiency in service on the part of OPs in not coming up to the expectations of their customers. Complainant has prayed for accepting the present complaint. On the other hand, OP-1 admitted the purchase of said mobile handset but denied all the allegations of complainant being wrong and incorrect and asserted that only manufacturer is liable to replace the mobile or to refund the price of said product as OP-1 acts only as a facilitator and has no role in redressing the grievance of complainant. On the contrary, there is nothing on record to contradict the allegations of complainant as OP-2 and 3 did
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not bother to appear before this commission though they have sufficient knowledge of present complaint.
9 ld counsel for complainant has placed reliance on decision given by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.4656 of 2013 on 11.04.2013 (2013 (3) CLT) titled as Redcliff.com India Limited Vs Ms Urmil Munjal wherein it is held that RP/OP is not a charitable organisation involved in e-commerce, with no business returns for itself. Therefore, contention of OP-1 that complainant is not their consumer, is rejected. After careful observation of the record placed on file and evidence led by respective parties, it is observed that from the envoice Ex C-2, it is the clear that complainant placed an order for said mobile handset on payment of Rs.41,999/-before OP-1 and mobile handset was to be supplied by OP-2. Ex C-3 copy of folio of pass book of bank account of complainant, perusal of same itself speaks that amount of Rs.41,999/-was debited from his account and were credited to the account of OP-1. Ex C-4 is a cogent document that proves the pleadings and grievance of complainant in the form of legal notice served upon by complainant to OPs for redressing his grievance. It reveals the inconvenience caused to complainant due to said product. From the bare perusal of Ex C-8 ( copy of reply to legal notice
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of complainant, sent by OP-1, wherein it is clearly mentioned and OP-1 acts only as a facilitator and has no role in repairing the manufacturing defect, which is sole liability of manufacturer company), there remains no doubt that OPs are aware of the complaint or grievance of complainant regarding said product, but they did not endeavour to rectify the said defect and in order to escape from their liability, they are making lame excuses. Complainant has suffered harassment due to this act of OPs. It is proved that complainant purchased the said mobile handset in question from OP-2 through OP-1. It is also clear that mobile sent by OP-2 through OP-1 is not proper and is not upto the satisfaction of complainant.
10 From the above discussion and keeping in view the evidence placed on record and pleadings of the respective parties, it is made out that complainant has suffered huge harassment due to deficiency in service on the part of OPs. Hence, complaint in hand is hereby allowed against OPs and they are directed to refund the cost price of mobile handset i.e Rs. 41,999/- alongwith interest at the rate of 3% from the date of filing the present complaint till final realization to complainant. OPs are further directed to pay Rs.5,000/-to complainant as compensation for harassment and mental agony suffered by him and Rs.2,000/-on account of litigation expenses incurred by complainant.
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Compliance of this order be made jointly and severally within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to proceed under section 71 and 72 of the Consumer Protection Act. Complainant is directed return the said mobile phone to OPs on receipt of payment from the OPs. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.
Announced on
Dated: 16.11.2021
(Vishav Kant Garg) (Parampal Kaur)
Member Member
