BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Harpreet Singh s/o Late Sh. Shiv Ram temporary resident of house no.826, Sector-2, Panchkula, Haryana-134109, and permanent resident of house no.229, Village and post office Purkhali, Tehsil and District Ropar, Punjab-140108.

                                                                ….Complainant

Versus

1.     Amazon India, Brigade Gateway, 8^th Floor, 26/1, Dr. Rajkumar   Road, Malleshwaram(W), Bangalore-560055, Karnataka, India

2.     MI(Xiaomi) Authorised Service Centre SCO 207, Cabin No.2,      Sector-14, Panchkula, Haryana-134114.

3.       Xiaomi Technology India Private Limited, 8^th Floor, Tower-1,      Umiya Business Bay Marathahalli- Sarjapur, Outer Ring Road,        Banglore-560103, Karnataka, India,

4.     Ajay Sharma(executive of Ml Authorised service center SCO 207,       Cabin no.2, Sector-14, Panchkula, Haryana.                                                                                                                                                                                                                                     ..….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:              Sh.Satpal, President.

Dr.Sushma Garg, Member

Dr.Suman Singh, Member

For the Parties:   None for the complainant.

                        None for OP No.1.

                        OP No.2 ex parte vide order dated 09.11.2021.

                        Sh. Atul Goyal, Advocate for OP No.3.

                        OP No.4 ex parte vide order dated 09.11.2021.

                                        ORDER

(Satpal, President)

1.              The brief facts, as alleged in the present complaint, are, that the complainant had purchased a MI Note 8 Pro(Halo white, 6GB RAM 64GB storage) mobile set vide placing an order on the website of OP No.1 and that the said mobile set had stopped working and went out of order during the warranty period, whereupon, he visited the authorized service centre i.e. the opposite party no.2(hereinafter referred to as OP No.2), met Sh. Ajay Sharma, the opposite party no.4 (hereinafter referred to as OP No.4), who was the executive head of authorized centre i.e. OP No.2, who informed him(the complainant) that the mobile set could not be repaired and the company would either replace the same or refund the entire amount of Rs.14,999/- within one month. It is averred that the complainant contacted  the OP No.2 & OP No.4, after a month and he was informed that the manufacturer i.e. Opposite party no.3(hereinafter referred to as OP No.3) had sent an email to the service center to refund the amount of Rs.14,000/- by cheque to the complainant. It is averred that the complainant visited the OP No.2/OP No.4 several times to take the cheque qua the refund of the amount and after several visits, the OP No.4 gave him a cheque bearing no.014352 of Rs.14,000/-  dated 29.08.2020 drawn at Canara Bank qua the account no. 2831261005098. The said cheque was presented by the complainant in the bank i.e. HDFC Bank, Sector-4, Panchkula vide his account no.01381050074669, but the same was not cleared due to insufficient funds and a sum of Rs.226/- was charged from his account due to bouncing of the said cheque on 09.09.2020. It is stated that the complainant called Sh.Ajay Sharma i.e. OP No.4 many times qua the refund of Rs.14,000/-, who assured him every time to manage the payment shortly but ultimately, the issue remained unsolved. Due to act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OP No.1 appeared through its counsel and filed the written statement by raising preliminary submissions therein that the OP No.1, an entity operating the URL www.amazon.in(Website), is Amazon Seller Services Private Limited (“ASSPL”) having its registered office at Brigade Gateway, 8^th Floor, 26/1, Dr.Rajkumar Road, Malleshwaram (W), Bangalore-560055, Karnataka, India; the complaint is bad for mis-joinder of parties. It is stated that the complainant has wrongly impleaded OP No.1 as a party to the complaint; therefore, references to OP No.1 should be construed as references to ASSPL, where independent third party sellers list their products for sale; therefore, the sellers themselves (and not ASSPL) are responsible for their respective listings and products on the Website. The ASSPL is neither responsible for the products that are listed on its website by various third party sellers, nor does ASSPL intervene or influence any customers in any manner. THE ASSPL is not involved in the sale transaction between the customer and the seller. The “Conditions of Use” of the Website(as expressly available on the Website) and specifically agreed by the customer’s state that ASSPL is only a facilitator and cannot be a party to control in any manner any sale transaction on the Website. The contract of sale of products on the Website is strictly a bipartite contract between the customer and the seller. It is stated that the OP no.1 is an intermediary as per the Information  Technology Act, 2000(“IT Act”) and complies with all the obligations laid down for intermediaries in the Information Technology (Intermediaries Guidelines) Rules, 2011(“IT Rules”) and thus, is entitled to an exemption from liability for the information/ material hosted on its portal. The OP No.1 had merely acted as an intermediary and as per Section 79 of the IT Act, no liability can be fastened upon it because the intermediary is exempted from any liability. The Consumer Commission at Panchkula does not have jurisdiction to adjudicate the present complaint.

                It is stated that as per the averments made by the complainant, the manufacturer of the product i.e. Xiaomi Technology India Private Limited(OP No.3) had agreed to refund the cost of the product, for which Sh.Ajay Sharma (OP No.4) gave him a cheque of Rs.14,000/- dated 29.08.2020, which  on presentation before the bank got dishonored. It is further submitted that the refund of the cost of the product was never provided to the complainant by the manufacturer of the product i.e. Xiamoi Technology India Private Limited and the Xiaomi Authorised service centre i.e. OP No.2. It is stated that the complainant had purchased a mobile set from the independent third party seller i.e. Darshita Aashiyana Private Limited vide order no.40711813261719526 dated 02.01.2020, which had issued the invoice qua the mobile set. It is averred that the independent third party seller i.e. Darshita Aashiyana Private Limited has not been impleaded as OP in the present complaint. It is submitted that upon inquiry from the said third party, no complaint, whatsoever, was ever made by the complainant qua any defects in the mobile set. It is submitted that the OP No.1 is not liable for any manufacturing defects after the sale of the product. It is submitted that the manufacturer i.e. OP No.3 is liable to resolve the issue raised by the complainant. It is submitted that no allegations qua any deficiency has been alleged by the complainant.

                On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1; as such, the present complaint is liable to be dismissed.

                The OP No.2 & 4 have preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, they were proceeded ex-parte vide order dated 09.11.2021 and thus, the assertions made by the complainant against them go unrebutted and uncontroverted.

                Upon notice, the OP No.3 appeared through its counsel and filed the written statement with the averments that the complainant has never submitted the mobile set as alleged to any of the authorized service centre of OP No.3 seeking any assistance qua any defects in the mobile set. It is submitted that the complainant has not annexed any evidence such as job-sheet etc. to prove that mobile set was examined and any manufacturing defect as alleged was found therein. It is submitted that the service centre i.e. OP No.2 was already terminated when the cheque of Rs.14,000/- was issued by the OP No.2/OP No.4 to the complainant. It is submitted that no email authorizing OP No.2/OP No.4 to settle the dispute by refunding the cost of handset was ever sent from the end of OP No.3 to OP No.2/OP No.4. It is submitted that the complainant has not submitted any document such as service record or job sheet to prove that the handset was examined and/or any manufacturing defect was found in the same. The complainant has not submitted any duly signed settlement letter in support of his statement that the said cheque was qua the refund of the price of the handset in question. Since the service centre was already terminated, it was neither authorized to examine the handset nor to settle the dispute by handing over the cheque for the said amount. It is stated that the cost of handset in question was Rs.14,999/- whereas the cheque issued by OP No.2/OP No.4 was Rs.14,000/-. It is stated that the discrepancy in the cost of handset and the amount of cheque and absence of any settlement letter further established concocted nature of this complaint. It is submitted that the complainant has never approached any authorized service centre of OP No.3. There is no record of the complainant ever approaching OP No.3 or any of its authorized service center as per its database. It is stated that if the product had really been submitted for repair to any authorized service centre of the OP No.3, a job-sheet/service order sheet would have been created, but the same has not been produced by the complainant. It is submitted that there is no proof of any manufacturing defects in the product or deficiency of service on the part of OP No.3 or any of its agent. It is submitted that the complainant has not placed any documents on record to prove the manufacturing defect in the mobile set. It is submitted that the complainant has not disclosed the issue qua the mobile set. It is submitted that the OP No.3 is still willing to examine and repair the handset in accordance with standard warranty terms & conditions applicable with the product. It is submitted that, in case, after examination of the handset, the technicians of authorized service centre of OP No.3 ascertains that the handset is not repairable, the OP No.3 as a goodwill gesture is willing to offer replacement of handset with a handset of same model.

                On  merits, it is submitted that the complainant had intimidated the former Manager, namely, Sh.Ajay Sharma(OP No.4) of its authorized service centre to such an extent that he had to handover a cheque for an amount of Rs.14,000/-. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.3 and as such, the complaint is liable to be dismissed.

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A & C-B along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the OP No.1 did not submit its evidence in shape of affidavit along with documents etc. despite availing several opportunities; accordingly, its evidence was closed by the Commission on 11.01.2024. The learned counsel for the complainant has tendered affidavit as Annexure R-3/A along with documents Annexure R-3/1 to R-3/2 in evidence and closed the evidence.

4.             We have heard the learned counsel for the OP No.3 and gone through the entire record available on the file including the written arguments filed by the OP No.3, carefully and minutely.

5.             The grievances of the complainant are that a cheque bearing no.014352 amounting to Rs.14,000/- drawn at Canara Bank was given  to him by the proprietor/Manager, namely, Sh. Ajay Sharma (OP No.4) of Op No.2(Authorised Service Centre) in lieu of refund of the purchase price of the mobile set, namely, MI Note 8 Pro(Halo white, 6GB RAM 64GB storage), which had become defective during the warranty period but the said cheque was dishonored due to insufficient funds; thus, the prayer has been made for acceptance of the complaint by granting the relief as claimed for in the complaint.

6.             On the other hand, the Op No.1 has contested the complaint on the following grounds:-

1. That the OP No.1 neither sells nor offers to sell any product and merely provides an online marketplace where independent third party sellers can list their products for sale.
2. That the OP No.1 is neither responsible for the products that are listed on its Website by various third party sellers nor does it intervene or influence the customers in any manner, whatsoever. The sellers themselves are responsible for their respective listings on the Website including all representations and warranties for the products/merchandise sold by them without any liabilities of OP No.1.
3. That the OP No.1 is not involved in the sale transaction between the complainant and OP No.3 and that the contract of sale of product on its website, namely, www.amazon.in is strictly a bipartite. It is submitted that the role of OP No.1 is merely of an facilitator between the consumer and the seller and as such it had acted as an intermediary through its web interface, who is exempted from the liability in view of the provisions as contained in Section 79 of Information Technology Act, 2000.
4. That the complainant does not fall under the category of consumer qua OP No.1 and further, there is no privity of contract between the complainant and OP No.1 as no consideration amount was received by OP No.1 from the complainant.
5. That the complainant has not impleaded the seller of the mobile set i.e. Darshita Aashiyana, who had issued the invoice in question.
6. That no allegation qua any deficiency in service on the part of OP No.1 has been leveled. It is submitted that grievance of the complainant is qua the manufacturer as well as its authorized service center and thus, the prayer is made for dismissal of the present complaint.

7.             The OP No.2 & 4 have preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, they were proceeded ex-parte vide order dated 09.11.2021 and thus, the assertions made by the complainant against them go unrebutted and uncontroverted.

8.             The learned counsel for the OP No.3, during arguments, reiterated the averments as made in the written statement as also in the affidavit Annexure R-3/A and contended that the OP No.4/OP No.2 were never authorized by the OP No.3 to settle the matter with the complainant by giving him a cheque of Rs.14,000/-. It was argued that the delivery of the cheque amounting to Rs.14,000/- by the OP No.4 to the complainant in lieu of price of mobile set in question was not valid, proper and justified because the service centre was already terminated  by OP No.3. It was argued that no job-sheet qua any defects in the mobile set has been placed on record by the complainant in support of his contentions. It was argued that the complainant had never lodged any complaint with OP No.3 as per its database and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless. Reliance was placed on the following case laws:-

i.      Retails Limited  & Ors. Vs. Pardeep Kumar, III, (2019) CPJ 1B(CN)(HP).

ii.       Raj Kumar Vs. Rana Communications & Anr. III(2019) CPJ 6C(CN)(HP).

9.             Evidently,  the mobile set in question i.e. Redmi Note 8 Pro (Halo White, 6GB RAM 64GB Storage) was purchased by the complainant as per invoice(Annexure C-1) dated 02.01.2020 for a sum of Rs.14,999/-. The said mobile set was the product of OP No.3. As per unrebutted contentions of the complainant, the said mobile set became defective during the warranty period i.e. in the month of June 2020; accordingly, he approached Sh.Ajay Sharma/OP No.4(Manager of the MI authorized service centre i.e. OP No.2), who handed over a cheque no.014352 on 22.08.2020 amounting to Rs.14,000/- drawn at Canara Bank, in favour of the complainant but the same(the said cheque) was dishonored upon the presentation of the same in the bank due to insufficient fund. Vide affidavit(Annexure C-B), the complainant has deposed that the mobile set in question alongwith all accessories and box was deposited with Sh. Ajay Sharma(OP No.4), Manager of MI (Xiaomi) Authorised Service Centre SCO 207, Cabin No.2, Sector-14, Panchkula, Haryana-134114(OP No.2) and in exchange, said Sh.Ajay Sharma(OP No.4) had issued a cheque no.014352 dated 29.08.2020 of Rs.14,000/- to him drawn on Canara Bank, Sector-20, Panchkula and the same was dishonored by the said bank on 09.09.2020.  The deposition made by the complainant vide said affidavit Annexure C-B are unrebutted and uncontroverted, since the OPs No.2 & 4 have preferred not to contest the present complaint by remaining absent during the proceedings of the present complaint.

10.            The OP No.3(manufacturer) has declined its liability in the matter mainly on the ground that it had already terminated  the service center i.e. MI(Xiaomi) OP No.2, headed by Sh. Ajay Sharma(OP No.4). The said plea taken by the OP No.3(manufacturer) is not tenable because no such documents showing the termination of the authorized service centre i.e. OP No.2 , which was headed by the OP No.4, has been placed on record. Even the date, month & year qua the termination of authorized service center i.e. OP No.2 has not been mentioned by OP No.3 in its entire written statement as also in the affidavit(Annexure R-3/A). Moreover, the mode adopted by the manufacturer(OP No.3), while terminating the authorized service center (OP No.2), has been clarified. Even, if it is assumed that the OP No.3 (manufacturer) had terminated the authorization of its service center (OP No.2),  then the same was the internal communication, if any, between the OP  No.3 on the one hand and the OP No.2/OP No.4 on the other hand. In such a scenario, the complainant, by no stretch of imagination, could be expected to have any knowledge qua the termination of authorization of service center of OP No.2/OP No.4. Even the printout taken from the Google site, which is available on record as Annexure C-5, the OP No.2 has duly been shown as the MI Authorised service center; thus, no fault of any kind in any manner can be found with the complainant, while approaching him the OP No.2/OP No.4. Moreover, no correspondence of any kind in any manner was made by the OP No.3 with OP No.2/OP No.4 seeking the delivery of mobile set in question, which is lying deposited with OP No.2/OP No.4, is made available on record.

11.            Moreover, the OP No.3 has not performed its duty as per the provisions contained in the Consumer Protection Act wherein it is mandatory for the manufacturer/principal to update the correct information relating to its agent and its authorized services centre. The OP No.3 by not updating the correct details about its authorized service center has violated the provisions of the Consumer Protection Act.

12.            In the light of the above discussion, we have reached at the irresistible conclusion that the OP No.3 as well as OPs No.2 & 4 were deficient, while rendering services to the complainant, for which, they are liable, jointly and severally, to compensate to him.  The present complaint is dismissed qua OP No.1.

13.            In relief, the complainant has claimed the refund of Rs.14,000/- along with compensation of Rs.50,000 and Rs.10,000/- and Rs.236/- on account of mental agony, harassment, litigation charges and bouncing charges respectively.     

14.            As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The OP No.3 is directed to refund an amount of Rs.14,999/-i.e. the price of the mobile set in question, to the complainant along with interest @ 9% per annum (simple interest) w.e.f. the date of filing of the present complaint till its realization.
2. The OP No.3 is directed to pay compensation of Rs. 5,000/- and the OPs No.2 & 4 are also directed to pay compensation of Rs.5,000/- to the complainant on account of mental agony and harassment suffered by him.
3. The Op No.3 is further directed to make the payment of Rs.5,500/- to the complainant on account of litigation charges.  

15.            The OP shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:30.09.2024

        Dr. Suman Singh                   Dr.Sushma Garg                Satpal

                        Member                     Member                     President

Note: Each and every page of this order has been duly signed by me.

    Satpal

  President