Punjab

Nawanshahr

CC/12/2016

Ashwani Kourpal - Complainant(s)

Versus

Amazon India - Opp.Party(s)

30 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SHAHEED BHAGAT SINGH NAGAR

Consumer Complaint No.         :    12 of 09.02.2016

Date of Decision:                     :    30.06.2016

Ashwani Korpal S/o Shri Vijay Kumar R/o C/o Blue Dart, Banga, Shivalik Complex, Opposite Raj Petrol Pump, Banga, Tehsil Banga, District Nawanshahr.

                                                                             …Complainant

Versus

1. Cloudtail India Pvt. Ltd, (Authorized Distributor of Amazon India Pvt. Ltd), Unit No.1, Khewat/Khata No.373/400, Mustatil No.31, Village Taoru, Tehsil Taoru, Distric Mewat, on Bilaspur – Toaru Road, Mewat – 122105 (Haryana).
2. S.G.S. Communication (The Authorized Micromax Mobile Phone Service Centre), Shop No.6, Pearl Palace, Ghumar Mandi, Ludhiana (Punjab) Pin Code – 141001.
3. M/s Micromax Informatics Ltd (DL), B-82, Mayapuri Industrial Area, Phase-1, New Delhi – 110064 Contact No.011-49790000.

          …Opposite Parties

Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

MRS.NEENA SANDHU, PRESIDENT

S.KANWALJEET SINGH, MEMBER

ARGUED BY:

For complainant              :         Sh.Rohit Korpal, Authorized Rep.

For OP No.1                    :         Sh.A.K. Sareen, Advocate

For Op No.2                    :         Ex parte

For OP No.3                    :         Sh.M.P. Nayyar, Advocate       

ORDER

MRS.NEENA SANDHU, PRESIDENT

1.       Ashwani Korpal has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’) against the Opposite Parties (hereinafter referred to as ‘OPs) prayed therein that OPs be directed:-

1.       To pay to the complainant Rs.8, 999/- as the price of the mobile in question.

2.       To pay to the complainant Rs.30,000/- as compensation on account of financial loss, mental agony and physical harassment.

3.       To pay to the complainant a sum of Rs.20,000/- as litigation expenses.

2.       In brief, the case of the complainant is that he had purchased mobile phone model Serymob001 (Without Acc.A05510 (Grey) IMEI No.911401502313602, online from OP No.1 for a sum of Rs.8,999/- vide bill No.HR-DEL2-144105041-959857 dated 26.01.2015, which was delivered through courier at Banga. The said mobile was having warranty of one year. The mobile in question started giving problem after four months of its purchase as its record speaker, mike and loud speaker got defective. On 30.10.2015, he handed over the mobile set to the OP No.2 for its repair.  On repeated visits, the Op No.2 told him that it had sent his mobile set to OP No.3 for repair. On 09.11.2015, OP No.3 sent him a courier which he received after about seven days. In the said parcel there was an old mobile without battery model SERYMOB001 (WITHOUT ACC.A05510 (GREY) IMEI NO. 911401504224211, which was different from his mobile which he handed over to OP No.2 for repair. On the next day, he informed the OP No.3 on helpline No.1860-212-2122 and also through email regarding sending of wrong mobile set to him.  The OP No.3 told him that his mobile set could not be repaired. On 02.12.2015, he visited the OP No.2 and it handed over him the battery of his old mobile phone which was totally dead. After charging the said battery he inserted the same in the mobile set and found that the said mobile set did not pick up the SIM, because of defective SIM slot, as there were only three wires in the SIM slot.  Accordingly, he informed the Op No.3 about the said fact, official of Op No.3 told him that it had given his old mobile set to some other person after its repair and he has to retain mobile in question.  The OP No.2&3, by not giving him the same mobile set, which he handed over to Op No.2 for its repair have committed deficiency in service.  Due to the said act of the Ops No.2&3, he has suffered mental agony and financial loss, hence this complaint.

3.       On being put to notice, OP No.1 filed written version stating therein that Couldtail India Private Limited is a Company incorporated under the Companies Act, 1956, having its registered office at S-405, LGF, Greater Kailash-, New Delhi – 110048.  The answering OP is carrying its business of sale of goods as a retailer.  The answering OP is a registered seller on Amazon India Marketplace (www.amazon.in). Complainant has resorted to suppressio veri and suggestio falsi in the complaint.  He has suppressed many vital facts which go to the root of case and has needlessly made answering OP as party in this case, this complaint is mis-joinder of parties; complaint is wholly false, frivolous and vexatious and has been filed with malafide intention and for harassing the answering OP; complaint is not maintainable either in law or on fact and is liable to be dismissed in limine as it does not show any cause of action against answering OP; the Yu Yureka (moon Dust Grey) (“Product”) sold by answering OP carries manufacturer’s warranty. There has neither been any shortage of supply nor any deficiency of service on the part of answering OP.  Liability to provide after sale services did not lay upon the answering OP as it is neither the manufacturer of the product nor the authorized service care center of the manufacturer, who has the sole and prime responsibility to provide after sale service to the consumer under manufacturer’s warranty clause; there has been no dispute contemplated under the Consumer Protection Act, 1986 between the complainant and answering OP; grievance of the complainant is that after four months of the purchase there were problems in the product like the record speaker, mike and loud speaker stopped working properly.  Admittedly, the product purchased by the complainant was in good working condition at the time of purchase from the answering OP, thus for any manufacturing or technical defects or problems arising in the product after four months of purchase, the answering OP could not be made liable; the only averment in the complaint pertaining to answering OP is that he purchased the product from it on 26.02.2015; complainant has not approached to this Forum with clean hands. Rest of the averments made in the complaint are denied and prayer has been made for dismissal of the complaint.  

On 15.06.2016, complainant has suffered a statement to the effect that he withdraws the complaint against OP No.1, accordingly complaint against OP No.1 stands dismissed as withdrawn vide order dated 15.06.2016. 

4.       None having appeared on behalf of OP No.2, inspite of service of notice, it was proceeded against ex parte vide order dated 18.03.2016.

5.       OP No.3 has filed written version stating therein that complaint is a gross abuse of the process of law and not maintainable; the answering OP never denied to provide after sale services to the complainant as assured under the terms of the warranty & is still ready to provide the same; the warranty of the hand set has been given by the manufacturer; the answering OP is only service provider and has nothing to do with the manufacturing of the mobile set; as per complainant, he purchased the hand set on 26.02.2015 and had deposited the same with the authorized service care centre, who swapped the handset on 16.11.2015 and later on complainant collected the battery from the authorized service care centre, but complainant has filed false, frivolous and baseless complaint just to pressurize the answering OP to meet his illegal demand; complainant had not impleaded M/s Yu Televenture Pvt. Ltd i.e. manufacture as OP which is necessary party, intentionally, therefore, complaint is bad for non-joinder and mis-joinder of the necessary parties; no cause of action has arisen at Nawanshahr as alleged by complainant to file the present complaint; On merits, each and every averment of the complaint is denied and prayer has been made for dismissal of the complaint. 

6.       In support of his version, the complainant has tendered in evidence his affidavit as Ex.CW1/A alongwith copy of bill Ex.C-1, copy of job sheet dated 30.10.2015 Ex.C-2, customer dispatch slip dated 09.11.2015 Ex.C-3 and closed the evidence.  Learned counsel for Op No.1 has tendered affidavit of Harshit Ratan Ex.OP1/A and closed the evidence.  Learned counsel for OP No.3 has also tendered affidavit of Pardeep Kumar Ex.OP3/A and closed the evidence.

7.       We have heard the authorized Rep. of complainant, learned counsel for OP No.3 and have also gone through the record carefully.

8.       At the outset the learned counsel for the OP No. 3 has raised the objection that this Forum has no territorial jurisdiction to adjudicate upon this case, because the complainant had purchased the mobile set in question from Cloudtail India Pvt. Ltd. i.e. Op. No.1, which is running its business at Mewat, Haryana.  To this effect the authorized representative of complainant argued that the complainant, who is his brother had placed online order for the purchase of the said mobile set at Banga (Nawanshahr), the same has been delivered through courier to him at his address at Banga and he had made the payment of the said mobile at Banga only, therefore this Forum has territorial jurisdiction to adjudicate upon the dispute involved in the present complaint.

          Since, the complainant has placed the online order for the purchase of the mobile in question at Banga (Nawanshahr) and the same has been shipped by OP No.1 to him at Banga (Nawanshahr) which has been received by him through courier at Banga (Nawanshahr). Therefore, this Forum has territorial jurisdiction to adjudicate the matter involved in the present case.  We find support from the order dated 13.4.2014, passed by our own Hon’ble State Commission, in the case of Rajinder Pasricha Vs Garwal Mandal and Ors, wherein, the Hon’ble State Commission, Punjab, by making reference of order passed by Hon’ble National Commission, in the case of Melanie Das Vs Royal Sundram Alliance Insurance Company and Anrs.” 1(2014) CPJ -302 (NC) has held that since the complainant has got booked two A.C. rooms at Haridwar online through Credit Card at Ludhiana, certainly part of cause of action has arisen at Ludhiana. We do not agree with the findings so recorded by the District Forum that District Forum, Ludhiana, does not have the jurisdiction.

9.       The next objection raised by the learned counsel for the OP No.3 is that since, the complainant has not impleaded the YU Company i.e. manufacturer as opposite party in the arrays of the opposite parties, therefore the complaint is liable to be dismissed on the ground of non joinder and mis joinder of necessary party. To this effect the authorized representative of the complainant argued that the complainant had handed over the mobile set having IMEI No.911401502313602 to the Op.No.2 for its repair, who further sent it to OP No.3 for repair. However, the OP No.3 instead of sending him back the same mobile set having IMEI No.911401502313602 had sent back another mobile set having IMEI No.911401504224211. Since, the Op No.3 had sent him some other mobile than which he handed to OP No.2 for repair, therefore, OP No.3 is deficient in providing service, thus the instant complaint filed against it is maintainable. 

From the perusal of warranty statement Ex.C-6 it is evident that YU Company has authorized its service care centre to replace the mobile set, if it is beyond repair. From the Ex.C3 it is apparent that OP No.3 instead to deliver the mobile set having IMEI No.911401502313602 had delivered a mobile set to the complainant having IMEI No.911401504224211. It is of common knowledge that IMEI number of any mobile cannot be changed. Thus it stands proved that the Op.No.3 had sent a new mobile set to the complainant as a replacement for the mobile set which he had handed over to the OP No.2 for its repair. Even as per the complainant the replaced mobile set was also defective, therefore, OP No.3 has committed deficiency in service and this complaint is maintainable against it and this objection raised by counsel for Op No.3 has no force. 

10.     The grievance of the complainant is that even the replaced mobile set which he received from OP No.3 was also defective and prayed that the Ops not only be directed to refund the price of the mobile set but they be also directed to pay him compensation on account of mental agony and physical harassment suffered by him alongwith litigation expenses.  It may be stated that incidentally on 15.06.2016 at the time of arguments in this case, Sh.Tejinder, Engineer of  Micromax Company happened to be present in the court room in some other case.  The replaced mobile set which the complainant brought alongwith him, was shown to the said Engineer in the presence of learned counsel of OP No.3. After checking the said mobile set thoroughly, the said Engineer disclosed that there were only three pins in the SIM Slot and that is why the SIM could not be inserted in the mobile set.  Since, the mobile set sent by the Op No.3 in replacement was also found defective, therefore as per warranty statement Ex.C-6, OP No.3 is liable to replace the same with the new one because the manufacture has authorized its service care centre to replace the mobile set if it is found defective.  Not only this, the OP No.3 is also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses. The complaint filed against Op.No.2 is liable to be dismissed because it had performed its duty properly as it after taking the mobile set from the complainant had duly handed over to OP No.3 for repair. Even otherwise no specific allegation has been leveled against it by the complainant.

11.     In view of the aforesaid discussion the complaint filed against OP No.1&2 is dismissed and the same is allowed against the OP No.3. The OP No.3 is directed in the following manner: -

1. To replace the mobile set in question with new one, in case same model of the mobile set is not available in the market, then the OP No.3 shall refund Rs.8,999/- i.e. price of the mobile to the complainant.
2. To pay Rs.2500/- as compensation to the complainant.
3. To pay Rs.2500/- as litigation expenses to the complainant.

The Op No.3 is further directed to comply with the aforesaid directions within a period of 30 days from the date of receipt of certified copy of this order.

12.       The certified copies of this order be supplied to the parties free of costs, as per rules and file be indexed and consigned to the Record Room.

Dated:  30.06.2016

 

                                                          (NEENA SANDHU)

                                                          President

         

                                                          (KANWALJEET SINGH)

     Member