New Complaint No.206 of 2023.
Date of Institution:26.10.2023.
Old Complaint No:177 of 2018.
Date of Institution: 10.04.2018.
Date of order:19.01.2024.
Mohit Babbar Son of Sh. Balbir Singh Babbar, resident of Krishna Gali No. 2, House No. 112, Ward No. 5, Dhariwal, Tehsil and District Gurdaspur.
…......Complainant.
VERSUS
1. Amazon India Development Care Centre India Pvt. Ltd., 2nd Floor Saffina Towers, Opposite to JP Techno Park No. 3, Ali Asker Road, Bangalore – 560052, through its Registered Officer.
2. Green Mobiles Unit No. 1 on Bilaspur, Haryana, Opposite Taoru Road, Mewat.
3. Green Mobiles No. 369, 13th Cross, 30th Main, Banashankari 2nd Stage, Bengaluru – 560070, Karnataka, India.
….Opposite parties.
Complaint u/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.K.S. Dhillon, Advocate.
For the Opposite Party No.1: Sh.Sandeep Ohri, Advocate.
Opposite Parties No.2 & 3: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Mohit Babbar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Amazon India Development Care Centre India Pvt. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant purchased a mobile One Plus 5T (Midnight Black 8 GB RAM + 128GB Memory, IMEI No. 866817036371094) from the opposite parties which was booked through online by the complainant on the website of Amazon India from Dhariwal Tehsil and District Gurdaspur. It is pleaded that the opposite party No. 1 put the demand of complainant to the opposite party No. 2 for the purchase of mobile one plus 5T which costs Rs.37,999/- to the complainant alongwith the taxes. The mobile was received by the complainant on dated 18.02.2018 and the payment of Rs.37,998/- was made by the complainant through Master Card last digits 8003 to the opposite parties. It is further pleaded that the mobile set of one plus 5T had a guarantee period of one year alongwith replacement of 28 days from the date of delivery. The mobile had a manufacturing defect which was detected by the complainant immediately after its purchase and the same was informed to the opposite parties in black and white and also on customer care in the month of February 2018. It is further pleaded that the opposite parties after receiving the complaint of the mobile set deputed Tech Team to confirm the manufacturing defect in the mobile set who verified / confirmed after loading the software that the mobile set had a manufacturing defect and gave assurance to the complainant to replace the same with a new set or they will refund the amount of Rs.37,998/- to satisfy the customer. The complainant received a message on his registered E-mail id, a return mailing label so that the mobile could be dispatched to the opposite parties. It is further pleaded that the complainant dispatched the mobile through India Post Tracking No. EP 398677030 IN on 20th March 2018 which was received by the opposite parties on dated 21.03.2018 at Amazon Office. It is further pleaded that the opposite parties assured the complainant on his Amazon site to refund the amount of Rs.37,998/- within 2-3 days of its return. But, the opposite parties swindled the complainant and till date the amount have not been refunded by the opposite parties. Due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to refund the amount of Rs.37,998/- to the complainant as the cost of mobile one plus 5T received by them from the complainant alongwith Rs.50,000/- as compensation for causing mental agony and harassment to the complainant and Rs.16,000/- as loss in business due to the unfair trade practice and deficiency in service by the opposite parties in the interest of justice or any other order as the Hon’ble Commission deems fit may also be passed in favour of complainant and against the opposite parties.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has apparently approached this Hon'ble Commission with unclean hands and thus the complainant is not entitled to any relief. It is pleaded that the complainant has not placed an order for any goods from the answering OP No. 1 nor has the complainant paid any amount / consideration to the OP No. 1. The goods have been bought by the complainant from an independent third party seller, selling its products on the Website operated by the OP No. 1. Accordingly, the complainant does not fall within the definition of 'CONSUMER' with the OP No. 1. Further that, the OP No. 1 is merely an online marketplace where independent third party sellers can list their products for sale. Therefore, the OP No. 1 is neither a necessary nor a proper party in the present complaint. Given the above, the complaint is liable to be dismissed on account of mis-joinder of necessary parties. It is further pleaded that the OP No. 1 only provides the services of an online market place where buyers and sellers may interact and complete purchases. Accordingly, the products available for sale in the OP No. 1’s market place are supplied by the seller and purchased by the buyers. At no stage in the transaction does the OP No. 1 have any affiliation or link with the product and does not hold out to the purchasing public that the products are that of the OP No.1's manufacture or origin. Thus, the complainant's allegations are completely misplaced and unfounded and do not constitute a valid cause of action. It is further pleaded that the complainant in the present complaint has not even impleaded the courier company to the present proceedings and thus the present complaint is liable to be dismissed on the ground of non-joinder of necessary party. It is further pleaded that the matter of fact is that the order in question i.e. Mobile Handset make One Plus 5T was placed by the complainant with a third party seller by the name of Green Mobiles on the website. The product was delivered to the complainant on dated 16.02.2018. However, the complainant after receipt of the said product approached the answering OP No. 1 on dated 23.03.2018 alleging that the charger received by the complainant was defective and that the mobile case was missing from the box received by the complainant. Accordingly, basis the complaint of the complainant, return request was created by the answering OP No.1 and was requested to self-return of the product as the pickup service was not available. It is further pleaded that as per the complaint of the complainant, he allegedly sent the product vide Indian Post to the answering OP No. 1. However, it is pertinent to mention here that that on receiving the said parcel sent by the complainant, it was found that complainant had sent the Mi 10000 mAH Li-Polymer Power bank 2i (Black) in the parcel and not the Mobile Handset that was delivered to the complainant. Accordingly, replacement order 402-6939791-4840345 was cancelled on dated 27.03.2018 because original item being replaced was not received within the return period. Further, the refund was also denied to the complainant and the same was duly conveyed to the complainant vide E-mail dated 30.03.2018. It is further pleaded that in view of the repeated problems in the returns in respect of the account of the complainant, the answering OP No. 1 vide its aforesaid E-mail dated 30.03.2018 duly apprised the complainant of its policies and cautioned the complainant that in case of failure to follow the policies, the complainant may not be able to buy on Amazon.in. It is further pleaded that the account of the complainant has been closed on account of violation/s of Amazon's terms & conditions of use and policies since the violations on the part of the complainant continued despite earlier warnings and also an E-mail was sent to the complainant on dated 10.07.2018 at 11: 21 P.M. (IST) in this regard. Hence, the averments and/or allegations made in the complaint are frivolous, baseless, misconceived and the complaint is liable to be dismissed on this ground alone.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Opposite party No. 3 did not appear despite the service of notice and was proceeded against exparte vide order date 04.06.2018. Similarly, opposite party No.2 did not appear despite the service of notice and was proceeded against exparte vide order date 31.12.2018.
5. Learned counsel for the complainant has tendered into evidence affidavit of Mohit Babbar, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-15.
6. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Sh. Rahul Sundaram S/o Late K.C. Sundaram, (Working as Senior Corporate Counsel (Litigation), Karnataka) as Ex.OP-1/1 alongwith other documents as Ex.OP-1/2 to Ex.OP-1/4 alongwith reply.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that complainant had purchased One Plus 5T Midnight Black 8 GB RAM + 128GB Memory mobile phone from opposite parties No.1 and 2. The said mobile was received by the complainant on 18.02.2018 and the guarantee period for replacement was 28 days from the date of delivery. The complainant noticed manufacturing defect in the mobile and made request for replacement and after receiving complaint tech team confirmed the manufacturing defect and assured to refund the amount of Rs.37,998/- to the complainant and complainant had sent the defective mobile to the opposite parties but till date opposite parties have not refunded the amount which amounts to deficiency in service.
9. On the other hand counsel for the opposite party No.1 has argued that opposite party No.1 is online platform where seller and buyer are given facility to buy and sell the product and as such opposite party No.1 has no liability in the present matter. The complaint is liable to be dismissed. It is further argued by the counsel for the opposite party No.1 that product was delivered to the complainant on 16.02.2018 and the complainant approached the opposite party No.1 on 23.03.2018 alleging that the charger was defective and mobile case was missing from the box and as such complainant was requested to arrange self return of the product as pickup service is not available. The product was received and it was found that complainant had sent only Mi 10000mAH Li-Polymer Power Bank 2i Black and not mobile set and accordingly replacement order was cancelled and as such there is no deficiency in service on part of opposite party No.1. During the course of arguments counsel for the complainant has agreed to return the mobile hand set.
10. Opposite parties No.2 and 3 remained exparte.
11. We have heard the Ld. counsels for the complainant and opposite party No.1 and gone through the record.
12. It is admitted fact that complainant had purchased one mobile One Plus 5T Midnight Black 8 GB RAM + 128GB Memory, IMEI No. 866817036371094 from the opposite parties on payment of Rs.37,999/-. It is further admitted fact that the said mobile was having guarantee of one year alongwith replacement of 28 days. It is further admitted fact that opposite parties after receiving the complaint of the mobile set deputed tech team to confirm the manufacturing defect and assured to replace the mobile set or refund the amount. It is further admitted by the counsel for the complainant that mobile hand set is still lying with the complainant and was not dispatched to the opposite parties and only power bank sent back to the opposite parties. From the admission of the counsel for the complainant it is proved on record that complainant had failed to return the mobile hand set but Mi 10000mAH Li-Polymer Power Bank 2i Black was sent to the opposite parties. Since it is admitted by opposite party No.1 for replacement subject to return to old product. But mobile hand set has been proved to be with the complainant till passing of this order.
13. Accordingly, present complaint is partly allowed with the following directions:-
Complainant is directed to return the product i.e. mobile hand set to the opposite parties No.2 and 3 and opposite parties No.2 and 3 shall refund the cost of mobile set an amount of Rs.37,999/- to the complainant alongwith interest @ 9% P.A. from the passing of this order till realization. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
14. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
15. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Jan. 19, 2024 Member.
*YP*
