By Sri. MOHANDASAN.K, PRESIDENT

Complaint in short is as follows: -

1.        The complainant booked a Samsung M 31S mobile phone through amazon on 27/09/ 2020 and the said phone was delivered to him on 03/10/2020. Thereafter within one month of purchase started defective functioning, like sleeping automatically while using an application and for using the same the complainant has to unlock and exit from the application, then only he could use the phone. It was also noted that there was lagging to move the files and also data to another storage system and so the complainant immediately on 19/10/2020 entrusted the mobile phone for service at the Samsung Service Centre, Manjeri. The service people checked the mobile phone and re-installed its software. But when the complainant checked the mobile phone, he found that the problems still exist.  So, complainant again submitted the phone before the service Centre for the study of the problem and to do the necessary things that is on 20/10/2020. On 24^th October 2020 the complainant was informed that the mother board has got complaint and that is to be replaced. On the same day order was placed for mother board and it was informed that they would receive the product on 26/10/2020. But on 26/10/2020 it was adjourned to 27^th October.

2.         During this period the complainant contacted the second and third opposite parties and the complaint requested for the replacement of the phone. But the second and third opposite parties were not ready to replace the phone but they agreed to extended warranty for an additional period of 6 months. But though complainant agreed for the same and asked to mail regarding the same, he received mail after contacting several times and with considerable delay.  The complainant received a call from the Samsung executive on 04/11/2020 and said that the phone has fully repaired and the complainant is allowed to take back the phone from the service Centre. Immediately the complainant reached the service Centre but at that time he came to know that the phone was not ready since some of the spare parts were not received. The complainant received repaired mobile phone on 06/11/2020 evening. The service people said to him that mother board as well display has been replaced.  Accordingly, the complainant installed the applications which he needed and started to use the phone. On the next day itself he noted the defects as earlier. Then, the complainant took video of the same and forwarded to the service manager at Manjeri through watts up on the same day and the service people asked him to submit the phone again.  Since he was out of station on that day, he submitted the phone on 9/11/2020 at Manjeri service Centre.

3.         On 10/11/2020 the complainant received a call from service Centre stating that the phone has been repaired and the complainant can take back it. The complainant received the phone on the same day. Unfortunately, within 30 minutes when he checked the mobile phone, he found the complaint exists with the phone and so he went back to the service Centre and placed the phone before them.

4.         On 13/11/2020 the complainant was contacted from Samsung head office and then the complainant demanded for replacement or refund of cost of the phone. Then the opposite party said to him that they will contact him on 16^th November 2020. But there was no response from the second and third opposite party. Since there were no updates, he called and as well as sent mail to the Samsung. The complainant repeatedly tried to contact the opposite party and then it was told that one Sujith will deal with his complaint. But instead of calling by Mr. Sujith a lady talked with the complainant something else which was not at all related to the complaint of the mobile of the phone which is having. She was talking about PUBG application which was not installed by the complainant but was done by the service centre as part of the service. There after complainant did not receive satisfactory explanation from the opposite parties.

5.         The complainant submit that the complainant is a business man dealing through his mobile phone. Due to the absence of the mobile phone, he is in difficulty and so he is about to close his shop. Complainant suffered financial loss and other inconveniences also. Hence the complainant prayed for compensation of Rs.1,00,000/- and also replacement of defect free mobile phone or refund of the cost of the mobile phone.

6.         On admission of the complaint notice was issued to the opposite parties. The opposite parties entered appearance and filed version in detail. All the opposite parties denied the entire averments and allegations in the complaint. The first opposite party submitted that they are the mis-joinder and so the reference to first opposite party may be construed as Amazons Seller Services Private Limited having its registered office at 8^th floor, brigade gateway, 26/1 Dr. Rajkumar Road, Bangalore 560055. The first opposite party submitted that they operate an e-commerce market place were over more than 5 lakhs independent third-party sellers have listed their product for sale and the third opposite party, Savex Technologies Private Limited, is one of the independent third-party sellers which has listed its products for sale on the e-commerce marketplace operated by the first opposite party. The complainant purchased a product namely Samsung Galaxy M31 S, mobile phone vides order No.404-8446371-1077910 on 27/08/2020 from the independent third-party seller i.e Savex Technologies Private Limited having its place of business at unit No.1 Khewat/Khata No.373/400 Mustatil No. 31 village Taoru, Tehsil Taoru, District Mewat. On Bilaspur Taoru Road Mewat, Haryana 122015 IN. Hence the submission of the first opposite party is that the complainant has not impleaded the independent third-party seller Savex technologies Private Limited as party to the complaint. The first opposite party also submitted that the subject matter of the dispute pertaining to the alleged manufacturing defect of the product. The first opposite party   submitted that there are no specific allegations against first opposite party, but the complaint is against the authorized service center of the manufacturer and against the manufacturer. The opposite party submit that the complainant visited the authorized service center after period of one month and then the possibility to abusive usage cannot be ruled out. The complainant personally visited the service Centre and so he is aware that the defects would be rectified by the service Centre of the manufacturer.

7.         The first opposite party submitted that the complainant was provided with secret one time password which is provided to accept delivery by the complainant only if he is satisfied that the packet has not been tampered or to refuse delivery in case of tell – tale signs of tampering. It is also submitted that the complainant here in accepted the delivery of the tamper proof packed merchandise delivered to the complainant in a sealed condition, also provided the OTP to indicate that he had received the packet in a good un- tampered condition. So, the submission is that the complainant received the product ordered by him from the independent third-party seller which the independent third-party seller had sent in a factory packed tamper proof packing, claimed to have received a defective product.  

8.         The opposite party also submitted that the allegation of the complainant that opposite parties two and three failed to replace the product is not correct. the submission of the first opposite party is that as per the terms of the warranty the complainant is only eligible for free repairs in case of manufacturing defects arising within the period of warranty, but the complainant herein is seeking replacement of the product instead of getting the same repaired by the authorized service center of the manufactures in annexed with the terms of the warranty. The complainant is contractually bound by the terms of warranty of the product and cannot seek reliefs which are beyond the terms of the warranty of the product and so the prayer of the complainant for replacement of the product is unfounded and deserves to be rejected.

9.         The first opposite party also denied the entire averments regarding the alleged incidents of transactions and communications between the complainant and opposite parties two and three. The opposite party also submitted certain legal precedents regarding in support of the contention of first opposite party. Hence the prayer of the first opposite party is to dismiss the complaint against the first opposite party.

10.       The second opposite party filed version denying the averments and allegation in the complainant and prayed for the dismissal of the complaint. The second opposite party admitted that the complainant had purchased a mobile phone through opposite party No.1 that after one month the handset started some issues that phone automatically goes to sleep mode while using the app etc.  That the complainant reported the complaint with the service center that they re-installed the software and given back the same, thereafter again the same complaints repeated and again visited the service Centre and after detailed examination it was found complaint on mother board that was also replaced and returned the hand set etc.  The opposite party admitted that the complainant had requested for replacement of his handset but the company was not ready for the same but offered for extended warranty.  But the opposite party denied that the complainant was called from service center with respect to the phone that has been fully repaired and when the complainant reached the service center it was not repaired etc. The opposite party do not admit that the mother board and display was replaced but even then, when the complainant tried to on the mobile phone but the same defect was repeated, which are required documentary proof. The opposite party also disputed that  on 10^th November he got a call from service Centre that phone has been repaired and he collected the same but after 30 minutes he saw same problem that on several dates he contacted the service Centre as well the company to replace or refund, but they were not ready,  that his issue was referred to be dealt with one Sujith but the same was dealt with a lady staff, she talked something else and not related with the actual complaint that she informed the unit has performance issue due to  PUBG app that the same was not installed by the complainant but by the service center itself etc.  are required to be proved with documents.  The opposite party also denied that the complainant was business man that most of the business were done through the phone that he faced much difficulty for not having the phone that he suffered loss of money due to the said issue that he is entitled to replace the mobile phone along with Rs. 1,00,000/- as compensation etc. for want of strict proofs. 

11.       The opposite party submitted that the complainant had purchased a mobile phone from the dealer which is manufactured by the second opposite party and there after one month the complainant approached the service Centre with hanging issue and the complaint was registered and display were replaced on free of cost and handset was delivered. But the complainant was not being satisfied demanded for replace or exchange but ultimately, he was offered six month extended warranty. Thereafter the complainant approached the service Centre with issue of touch hanging.  The said complaint was again registered and software was upgraded and service completed but the complainant was not ready to collect the handset from the service Centre but again complainant stood with his earlier request for exchange or refund of invoice price. Initially the second opposite party was not ready for the same, ultimately considering the good customer relation, the management approved the demand of the complainant regarding refund of the invoice price but the complainant was not turned up. But suppressing all the real facts filed this complaint for illegal benefits from the company raising false allegations for which this opposite party is not at all responsible.  The submission of the opposite party is that the handset has no manufacturing or inherent defect at all. The opposite party also submitted that the complaints reported by the complainant were duly attended by the service Centre without fail as per the warranty terms but even after that the opposite party had given an offer to refund of the invoice price to the complainant but the complainant was not ready to accept the same. Only due to the above reason the complaint was closed and the opposite party is even now ready for refund of invoice price if the complainant is willing for that. The opposite party also submitted that as per the terms of the warranty policy, only issues arising within the scope of warranty will be repaired free of cost and all repairs which comes within the warranty period will be repaired free of cost and in this case the service Centre was ready to render better service within the scope of warranty and even now to provide service on cost but the complainant is not ready for that. The opposite party submitted that there is no manufacturing defect to the handset and the opposite party has not committed any act of unfair trade practice or any act of deficiency of service. The submission of opposite party is that the complainant is not entitled to get the handset replaced or refunded or to any compensation or the cost of the proceedings.

12.       The submission of the opposite party is that the opposite party is a company, is to serves its customer and provide a good at most competitive price and also enable most impeccable after sale service and there is no intent, what so ever, to deny the same under any circumstances. In case any after sale service/quality issue is brought to the notice of the opposite party/ service Centre as a policy matter the same is immediately corrected as a matter of priority. Hence the submission is that the complainant had approached the service center of the opposite party rightfully with correct fact, prompt service would have been provided but the complainant herein preferred the present ill motivated complaint and so the complainant is not entitled to any relief what so ever in view of the fact and circumstances of the complaint and so liable to be dismissed in the interest of dismiss.

13.       The complainant and opposite parties filed affidavit and documents.  The complainant filed documents and they are marked as Ext. A1 to A5.  Ext. A1 is acknowledgment of service request dated 10/11/2020. Ext. A2 is copy of acknowledgment of service request dated 20/10/2020. Ext. A3 is copy of tax invoice for Rs.19,499/-dated 20/08/2020.  Ext. A4 is copy of invoice number IN-DEL 2-448546.  Ext. A5 is copy of CD. The documents on the side of opposite party marked as Ext. B1 to B3.  Ext. B1 is copy of power of attorney. Ext. B2 is acknowledgment of service request dated 20/10/2020. Ext. B2(a) is copy of acknowledgment of service request dated 10/11/2020. Ext. B3 is copy of nationwide toll-free support of Samsung Help line details, 6 pages.

14.       Heard the complainant and opposite parties, perused affidavit and documents.

    The following points arise for consideration: -

1. Whether the mobile phone was defective?
2.  Relief and cost?

15.       Point No.1 and 2

            There is no dispute with respect to the purchase of Samsung M31 S phone through-amazon, the first opposite party on 27/09/2020 by the complainant. The mobile phone was delivered to the complainant on 03/10/2020. The grievance of the complainant is that within one month of purchase there was performance issue to the mobile phone and so the complainant submitted the mobile phone to the opposite party on 19/10/2020. The service Centre repaired the mobile phone of the complainant but when it was operated again by the complainant, it was found the defect was not yet rectified. Hence the complainant on the next day itself i.e on 20/10/2020 submitted the phone to the service Centre.  At that time the complainant was informed that the mother board of mobile phone is defective and that is to be replaced. Accordingly, the phone returned to the complainant on 27/10/2020. At that time the complainant requested the opposite parties to replace the mobile phone but the opposite party agreed to extended the warranty for an additional period of six months and then the request of the complainant was to send an e-mail to the complainant but they responded belatedly. On 04/11/2020 the complainant received message from an executive of opposite party stating that the mobile phone has been fully repaired and to take back the same from the service Centre. But when the complainant approached the service Centre, he could see the phone was not ready since they did not receive some of the spare parts. Then on 06/11/2020 he received the mobile phone from the opposite party and he was informed that the mother board as well as display of the mobile phone has been replaced.  But when the complainant started to use the mobile phone, it was found the defect as not yet rectified. So, the complainant took a video showing the issue of defects and forwarded to the third opposite party, the service Centre through watts up.  Then the service Centre requested him to submit the phone again and accordingly he submitted the mobile phone on 09/11/2020 to the third opposite party. The next morning the complainant was informed by the third opposite party that the phone has been repaired but when he began to use the same it was found the issue had not resolved and so the complainant again submitted the phone to the opposite party.

16.       It can be seen that the disputed mobile phone was delivered to the complainant on 03/10/2020 and within 40 days the complainant was dragged to the third opposite party, the service Centre several occasions and he made several conversations with the second and third opposite parties. All the transactions can be seen took place within short span of time of the purchase of the mobile phone. The complainant produced the defective mobile phone before the authorized service Centre of the second opposite party and the third opposite party service Centre failed to rectify the defect of the mobile phone. So, there is no reason to appoint an expert to find out whether the mobile phone was defective or not as stated by opposite parties. The transaction between the complainant and third opposite party and also the communication between the complainant and second and third opposite parties are sufficient to establish the mobile phone purchased by the complainant was defective one and the third opposite party the service center failed to provide due service to the complainant. Hence, we find that the mobile phone has got manufacturing defect and the third opposite party failed to provide adequate Service to the complainant.

17.       The complainant requested the second opposite party to replace the mobile phone but they refused to do the same but had agreed to extended warranty for 6 months. The complainant was not for simple extension of warranty for the defective mobile phone but to replace the defective mobile phone for which the opposite party was not amenable. But the second opposite party had agreed to refund the invoice price to the complainant but it was not acceptable to the complainant. The offer to refund the invoice price of the mobile phone to the complainant made by the second opposite party itself is evidence for the averments of the complainant regarding the defect of the mobile phone.

18.       The submission of the complainant is that he is a business man and he dealing his business with mobile phone and due to the defective mobile phone, his business was affected too much and he suffered financial loss in addition to inconvenience and hardships. We find there is merit in the contention of the complaint and for that the complainant is entitled reasonable amount as compensation.

19.       In this complaint the first respondent amazon seller services private limited   filed a detailed version and affidavit regarding the statutory liability of e-commerce market place.  The submission of the first opposite party is that they are a company incorporated under the provisions of Companies Act 1956 and they are operating and managing the e-commerce market place that is www.amzon.in, where independent third-party sellers list their products for sale. According to them any seller is free to list any product for sale and any buyer is free to choose and order any product from any independent third-party seller selling that product on the e- commerce market place. The submission of the first opposite party is that they do not have any sort of influence or interference in the process and there are over five lakh such independent third-party sellers selling their product on the e-commerce market place. The first opposite party submitted in detail regarding the practice of e-commerce and also legal precedents regarding the responsibility of e-commerce market place. The Commission has gone through the submissions of the first opposite party and we are of the view that market place in e -commerce is not an ordinary market place like the merchant’s doing business in a rented building or an open common place or in a mall. The consumer protection rules itself i.e., Consumer Protection (E-commerce) Rules,2020 provide liabilities of market place e-commerce entities that every market place e-commerce entity shall require sellers through an undertaking to ensure that descriptions, images, and other content pertaining to goods or services on their plat form is accurate and correspondence directly with the appearance, nature, quality purpose and other general features of such good or service. There are certain decisions also regarding the responsibility of the market place. It is held as the bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, on line portal through which goods are purchased, cannot escape its liability.

20.       In this complaint it can be seen that the complainant received a defective mobile phone manufactured by the second opposite party through the first opposite party. The perusal of the averments and documents it can be seen that the product itself was with manufacturing defect and the second opposite party the manufacture had agreed to refund the invoice cost of the mobile phone, which was not acceptable to the complainant. It is pertinent to note that there is no any allegation against the first opposite party the online market place. So, we find that opposite parties two and three are responsible to redress the grievance of the complainant.

21.       The Commission finds that the complainant is entitled to refund the cost of the mobile phone and a reasonable amount of Rs.25,000/- as compensation on account of deficiency in service and thereby caused inconvenience and hardships to the complainant. The opposite parties also directed to pay cost of Rs.10,000/- to the complainant.

22.       In the light of above facts and circumstance we allow the complaint as follows: -

1. The opposite parties No.2 and 3 is directed to refund the cost of the mobile phone Rs.19,499/- (Rupees Nineteen thousand four hundred and ninety-nine only) to the complainant,
2. The opposite parties No.2 and 3 is directed to pay Rs.25,000/- (Rupees twenty-five thousand only) to the complainant as compensation on account of deficiency in service and thereby caused hardships and inconveniences to the complainant.

1. The opposite parties No.2 and 3 are also directed to pay Rs.10,000/- (Rupees Ten thousand only) as cost of the proceedings to the complainant.

The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the above said entire amount will carry interest @ 12% per annum from the date this order till realization.

Dated this 12^th day of July, 2022.

Mohandasan . K, President

PreethiSivaraman.C, Member

     Mohamed Ismayil.C.V, Member

APPENDIX

Witness examined on the side of the complainant: Nil

Documents marked on the side of the complainant: Ext.A1 to A5

Ext.A1: Acknowledgment of service request dated 10/11/2020

Ext.A2: Copy of acknowledgment of service request dated 20/10/2020.

Ext A3: Copy of tax invoice for Rs.19,499/-dated 20/08/2020.

Ext A4: Copy of invoice number IN-DEL 2-448546.

Ext A5: Copy of CD.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party: Ext. B1 to B3

Ext.B1: Copy of power of attorney.

Ext.B2: Acknowledgment of service request dated 20/10/2020.

Ext.B2(a) : Copy of acknowledgment of service request dated 10/11/2020.

Ext.B3: Copy of Nationwide toll free support of Samsung Help line details 6 pages .

Mohandasan . K, President

PreethiSivaraman.C, Member

     Mohamed Ismayil.C.V, Member

VPH