Delhi

North East

CC/119/2016

Kirshan Kr. - Complainant(s)

Versus

Amazon India Pvt. Ltd. - Opp.Party(s)

27 Sep 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 119/16

 

In the matter of:

 

	Shri Krishan Kumar S/o Rajender Singh R/o C-2/958, Gali no. 23 Harsh Vihar, Delhi-110093	Complainant
	Versus
1         2	Amazon Seller Services Private Limited 26/1, Brigade Gateway, 8th Floor Dr. Rajkumar Road, Malleshwaram West Banglore-560055, Karnatka   YU Televenturees Pvt. Ltd. Block-A, Plot No. 21/14 Naraina Industrial Area, Phase-II, Delhi-110028	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION :

02.05.2016 27.09.2019 27.09.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts of the complaint , shorn of unnecessary details are that complainant had placed an online order with respect to YU Yuphoria Android Smart Phone for a sum Rs. 6,999/- (after promotion) manufactured by OP2 through OP1 online portal on 10.08.2015 vide order no. 171-4756023-9154728 with estimated delivery date between 13.08.2015 to 17.08.2015. The complainant made the payment through his HDFC credit card to OP1. The subject mobile alongwith accessory that is adapter and hand free delivered to him on 13.08.2015 and worked fine till next four an half months however its adapter and hand free cable stop working from 31.12.2015 which malfunction complainant immediately brought to the notice of OP2 telephonically on 03.01.2016 at its customer care no. which advised the complainant to fill their standard complaint form send vide email dated 04.01.2016 which the complainant complied with and duly filled the same and sent by email dated 05.01.2016. But despite complying with the instruction of OP2, no immediate replacement of the defective article was given which replacement was sent after two months. Therefore, the complainant was constrained to file the present complaint against OPs praying for issuance of direction to replace his defective article and to pay compensation of Rs. 5,000/- for mental harassment and agony suffered on account of willful omission on part of OPs and also to pay Rs. 1,830/- incurred by complainant in this regard.
2. Complainant has attached copy of online order confirmation receipt issued by OP1, copy of credit card statement highlighting payment of Rs. 6,999/-, pay towards the mobile, copy of delivery acknowledgement dated 13.08.2015 issued by OP1 of the subject mobile package to the complainant.
3. Notices were issued to the OPs on 06.05.2016. None appeared on behalf of OP2 & OP3 despite service of notice and therefore proceeded against ex-parte vide order dated 04.07.2016. OP1 filed written statement in which it took the preliminary objection that it neither sells nor offers to sale any product and merely provides a technology platform (an online market place) where independent third party sellers can list their products for sale and these sellers are themselves responsible for their respective listing and products on the website and the OP1 does not intervene or influence any customer nor is it involved in sale transaction between customer and seller and is a mere facilitator and cannot be a party responsible for any sale transaction on its website since the contract of sale of products on its website strictly a bipartite contract between the customer and the seller. The OP1 further took the defence that the complainant had not bought the subject mobile from OP1 nor has the complainant paid any consideration against the purchase thereof and therefore OP1 was not a necessary or a proper party to the present complaint. The OP1 further raised the objection that as per the “Condition of Use and Sale” which the complainant has explicitly by virtue of his use of OP1’s website, agreed to be bound by the terms contained therein, the complainant had agreed, understood and acknowledged OP1 as an online platform for enabling purchase from third party and that OP1 is only a facilitator and not a party in control of any transaction. Further OP1 relied upon clause 13 which was a disclaimer vide which the complainant had acknowledged and undertaken to access the services of the website of OP1 and transact at his own risk using his best and prudent judgment before entering into any transaction through OP1 and that OP1 shall neither be liable nor responsible for any action / inaction of sellers or any breach of conditions, representations or warranties by seller or manufacturers of the products thereby expressly disclaiming all responsibility and liability in that regard. Further, that at no time shall any right, titled or interest in the products sold through or displayed on the website vest with Amazon nor shall Amazon have any liabilities in respect of any transaction on the website. The OP1 further raised objection that no deficiency of service can be attributed to OP1 since the complainant had purchased the subject Yu Yureka mobile from third party seller through the website of OP1 and hence the seller and buyer were governed by “Conditions of Use” and that the product in question was delivered to the complainant in a sealed box by OP1 as it was received from the manufacturer and / or seller and therefore OP1 was not liable to pay any compensation to the complainant, there being no liability of after sales service on the part of OP1 whose role was limited to that of an online facilitator. The OP1 submitted the as per own admission of complaint, he had used the subject mobile for around five months after which period only the alleged defect arose in its accessories for which complainant admittedly approached OP2 a manufacturer knowing himself that OP2 was the appropriate body to be contacted in case of any alleged defect which fact is also evident from the form filled by the complainant for replacement of adopter sent to OP2 vide email. OP1 urged for dismissal of the complaint against itself on this ground alone. As there was no consumer dispute arising against OP1, complainant being not its consumer. As per OP1 it is an admitted case the mobile handset was covered under manufacturer warranty of one year and accessories covered for six months warranty. OP2 also contended that the only allegation leveled it by complainant was that it was responsible for replacement of the alleged defective product which  it is failed to replace due to which no replacement the warranty expired. However, contrarily OP1 was only responsible for taking return of products within ten days of date of delivery and that too regarding complete parcel and not one particular accessory attached therewith but in any case complainant never contacted OP1 in this regard and it was only OP2 which was approached by the complainant which was liable for after sales service. Therefore complainant prayed for dismissal of the complaint for failure of part of complainant to disclose a single cause of action or event or deficiency of service against OP1. The OP1 further took the defence that the relief claimed by the complainant was beyond the T&C of usage and sale and OP1 neither had knowledge nor facility to ascertain if the defects in the mobile were due to manufacturing flaw or customer abuse. Therefore OP2 prayed for dismissal of the present complaint on grounds of mis-joinder of it being arraigned as necessary party when it was neither manufacturer nor seller of the mobile in question and placing reliance upon the “Condition of Use” which binds the complainant on accessing and transacting through it.
4. Rejoinder and evidence by way of affidavit filed by complainant vide which he attached the copy of order confirmation, copy of original tax invoice issued by OP1 with regard to subject mobile, series of email correspondence between OP2 and complainant  from  4^th  January  2016 to 13^th January 2016 regarding defective adopter replacement/swap and follow up emails in that regard for no replacement given and copy of job sheet dated 08.08.2016 issued by M/s VI Communication with reported problem of charging with warranty repair ticked as “no” and comment RWR (return without repair).
5. Evidence by way affidavit was filed by OP1 in reassertion of his defence exhibiting the condition of use and sale of the online portal as put up on the website as Ex. OP-1/2.
6. Written argument were filed by both parties to reemphasis their respective grievance / defence.
7. During the initial hearing of oral arguments on 10.10.2018, complainant was directed to file supporting documents to prove the liability of OP1 with respect to defective handset and file certificate u/s 65B of Indian Evidence Act in support of emails placed on record. However complainant failed to produce any documents establishing culpability / role of OP1. During the course of final arguments, no document pertaining to OP3 was since found on record of the file, complainant was put to specific query as to why he had arraigned OP3 to which he admitted bonafide mistake as the subject mobile was deposited for repairs at some other service centre which was never made a party by him. He was therefore directed to delete OP3 forthwith and complainant filed deleted OP3 amended memo of parties. The para 4 & 5 of complaint were very vague and sketchy and did not bring out any clarity as to which product was defective, what was replaced after two months and what “instrument”  was not replaced. All the pleadings of the complainant did not bring out any clear cut details about the exact product being alleged to be defective or delayed replacement thereof or no replacement of any other product. The Hon'ble National Commission in Pawan Kumar Vs Nissan Motors India Pvt Ltd. I (2018) CPJ 425 (NC) observed that the complaint was sketchy and vague and no application was given by the petitioner / complainant to support his contention that the said vehicle had manufacturing defect and had also failed to place on record any expert opinion regarding the alleged manufacturing defect in his vehicle and had therefore dismissed the Revision Petition vide which the complainant had challenged the order of State Commission Jharkhand dismissing the complaint. The Hon'ble National Commission in Pushpa Bhutani Vs HUDA, Hisar (2006) 3 CPR 239 NC held that complaint cannot be allowed if complainant is unable to prove his averments. In the present case, the complainant was specifically put to question by this Forum about the vague allegations / averments in the complaint where no defective hands free cable finds mention of replacement in any of the correspondence with OP2 in any emails placed record which all pertain to the adopter and none of the emails has been addressed or marked CC to OP1 to which the complainant had no conclusive explanation except admitting to defective nature of drafting. The prayer clause (a) is also vague as it does not specify which defective article complainant is seeking replacement of whether adapter or hands free or mobile and is left to anybody’s imagination/ interpretation.
8. Therefore, after having brought the rival contention in to focus and examining and analyzing the complaint in entirety alongwith supportive documents, we are of the considered opinion that not only is the complaint sketchy and vague without bringing about any cogent or conclusive cause of action / grievance but is also devoid of merits since complainant has failed to establish any culpability against any of the two OPs and their respective roles or deficiency of service or unfair trade practice on their part. We therefore dismiss the complaint with no order as to cost.
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  27.09.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member