SMT. RAVI SUSHA  : PRESIDENT

      Complainant filed this complaint U/S 35 of the  Consumer Protection Act 2019 seeking  to get an order directing opposite parties  to replace the product in dispute with a new defect free one o to the complainant or its  at present value together with Rs.40,000/- towards compensation and  also cost of the proceedings of this complaint.

     Briefly stated, the  facts of the case are that the complainant had booked a Lenova Tab M10 FHD plus  manufactured by 3^rd  OP Lenova India Pvt Ltd through 1^st OP Amazone Indi and on 22/2/2023, the product was delivered to his resident.   But when the packet was opened  complainant could realize that, the product was used for 3 months before the delivery date and its warranty stated from 26/9/2022 onwards.  It was informed to 1^st OP’s customer care centre but the product was not replaced or the amount was not refund.  Complainant alleged that though he informed the matter to OPs 1&2 in many times through phone and sent e-mail messages, no positive result was obtained.

  After receiving notices OPs 1&3 filed written version stating their contentions .  1^st OP has stated that complainant placed an order for an Lenova Tab M10 FHD plus on 19/2/2023 with an independent third party seller 2^nd OP.  It is submitted that the tax invoice was issued by 2^nd OP which shows  the  payment of consideration towards the product was made by the complainant to 2^nd OP.  It is submitted that the payment of consideration towards the product was made by the complainant to seller in the nodal account set up in accordance with the RBI guidelines. It is clarified that the  payment made into the nodal account is not a payment made to  the 1st OP.  The 1^st OP is  not the account holder or owner of the nodal account and cannot transact at will without restriction on the said nodal account. Therefore based on the  RBI direction , 1^st OP does not charge the buyers on the e-commerce market place and consideration paid by the buyers towards purchase on the e-commerce market place is paid directly to the independent third party seller from whom the purchase is made through the nodal account. It is submitted that 1^st OP delivered the product to the complainant in an intact condition.  Which was realized from the email correspondence and OTP exchange between the complainant and 1^st OP.  The sale agreement executed by and between the buyer and seller on the e-commerce market place as the agreement of sale entered by and between the buyer and seller.  The 1^st OP has no role to play in the same. It is submitted that all payments are made directly by the complainant to independent third party sellers herein 2^nd OP.  They are not the seller or manufacturer of the product. 1^st OP submitted that they are only an intermediary as defined under the Information Technology Act, 2000 and complies with all the obligations laid down for intermediaries in the information technology.   There is no deficiency of service on their part.  Hence prayed for the dismissal of the complaint.

      3^rd OP has submitted that as far as the allegation of supplying a used product is concerned is denied.  The issue is  on warranty between the complainant and OPs 1&2.  There is no deficiency  in service  on the part of 3^rd OP.  It is further submitted that the 3^rd OP is no position  to state  if the device delivered to the complainant is used new device or fabricated.  It is the duty of OPs 1&2 to provide the complainant with new device and keep him updated about the device. Hence  prayed for the dismissal of complaint against 3^rd OP.

    2^nd OP remained absent  and  did not contest the matter.  Hence 2^nd OP was declared as exparte.

   Complainant has filed his chief affidavit and documents.  Examined as PW1.  Marked Exts.A1 to A5.  PW1 was cross-examined by OPs 1&3.  On the side of 1^st OP six documents produced,  which were marked as Exts.B1 to B6.  After that the learned counsel  of complainant  and OPs 1&3  made argument.

    Complainant’s case is that he had booked a Lenova Tab M10 FHD plus  manufactured by 3^rd  OP Lenova India Pvt Ltd through 1^st OP Amazone Indi and on 22/2/2023, the product was delivered to his resident.   But when the packet was opened  complainant could realize that, the product was used for 3 months before the delivery date and its warranty stated from 26/9/2022 onwards.  It was informed to 1^st OP’s customer care centre but the product was not replaced or the amount was not refund.  Complainant alleged that though he informed the matter to OPs 1&2 in many times through phone and sent e-mail messages, no positive result was obtained.

   On the other hand 1^st OP contended that the complainant placed an order for an Lenova Tab M10 FHD plus on 19/2/2023 with an independent third party seller 2^nd OP.  It is submitted that the tax invoice was issued by 2^nd OP(Ext.A1) which shows  the  payment of consideration towards the product was made by the complainant to 2^nd OP.  It is submitted that 1^st OP delivered the product to the complainant in an intact condition.  Which was realized from the email correspondence and OTP exchange between the complainant and 1^st OP.  1^st OP submitted that they are only an intermediary.  There is no deficiency of service on their part.  It is submitted that al payments are made directly by the complainant to independent third party sellers herein 2^nd OP.  1^st OP is not the seller or manufacturer of the product.

   Here on perusal of the  tax invoice(Ext.A1) it is seen that the product was  sold by Appario Retail private ltd(2^nd OP) and the billing address is Aswathi Nidhin(complainant herein).  But it is evident that Ext.A1 dtd.19/2/2023 was  issued by 1^st OP Amazon in for  recipient.  Ext.A1 is the order form  booked the product by complainant to amazone.  That is why the date mentioned in  it is 19/2/2023.  There is no dispute that the  product was delivered on 22/2/2023.  Here there is no dispute that the product was manufactured by 3^rd OP Lenova company.  Ext.A3 clearly shows that on the very next day itself ie,23/2/2023.  Amazon’s (1^st OP) customer care  sent  reply to the complainant stating that ”I am writing this email regarding the order  id:405-0662003-8856328, I am extremely sorry that you received the item in used and old item.  You can share the details on the email address mentioned below st OP came to know the grievance of the complainant that product delivered by them was in used and old  item and also informed the complainant to share the details to their email address ie, CS-reply(a) Amazone .in.  Here there is no dispute that 1^st OP acted as an “intermediary”.  Which means they delivered the item to the complainant.  The OTP is also issued by 1^st OP.  1^st OP submitted that after getting complainant’s grievance, they made an internal enquiry.   But the  internal enquiry report has not been submitted before the commission that they acted upon Ext.A3. Here there is no dispute that  the complainant has privity of contract with 1^st OP and  1^st OP had given service to the complainant by delivering the item.

     Though it is correct that 1^st OP is not receiving  any consideration directly from the  complainant, they are obtaining commission from 2^nd OP.  Hence though 1^st OP obtained the product ‘ intact” from  2^nd OP, and that they are  not  the seller, the y have done some service in connection with the transaction.  No one believe that 1^st OP are doing intermediatory work free of cost.  1^st OP informed in Ext.A3 “ to share the details”.  Without having any role, 1^st OP did not sent such a reply .  So 1^st OP should have received the product in dispute from the complainant and sent it to 2^nd OP the seller, to get redress the grievance of the complainant.  So as far as 1^st OP is concerned, there is deficiency in service on their part.

   As far as 2^nd OP is concerned, they did not appeared, despite received notice before the commission  at the proper time and did not contest the case.  From the available  evidence, and as  2^nd OP did not contest the allegations raised against them by the complainant and 1^st OP, we are constrained to believe the evidence tendered by  complainant and 1^st OP.  Hence we are of the view that  there is deficiency in service on the part of 2^nd OP also.

   3^rd OP is the manufacturer of the product.  The complainant has not  raised any allegation against 3^rd OP.  Moreover there is no allegation of any manufacturing defect of the product.  So 3^rd OP is exonerated from the liability.

    From the aforesaid facts and evidence, we are of the view that there is deficiency in service on the part of OPs 1&2.

   In the result complaint is allowed in part against opposite parties 1&2.  Opposite parties 1&2 jointly and severally liable to replace the disputed product with a  Lenova Tab M10 FHD plus of , new model or refund the value Rs.19999/- with Rs.5000/- towards litigation cost of

this complaint within one month from the date of receipt of this order.  Failing which Rs.19999/- with interest @9% per annum from the date of order till realization .  Complainant can execute the order as per the provision in Consumer Protection Act 2019.

Exts:

A1- Tax invoice dtd.19/2/2023

A2-Warranty slip dtd.19/2/2023

A3&A4-copy of email dtd.23/2/23,25/2/23

A5- Digital details issued by 1^st OP dtd.25/2/23

B1-Board resolution dtd.21/2/23

B2- Invoice dtd19/12/23

B3-Copy  of RBI directions

B4- Copy of OTP mail

B5- copy of email dtd.25/2/23

B6- conditions of Use and sale

PW1-Aswathi Nidhin-complainant

  Sd/                                                                  Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                     MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                       /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR