BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.313 of 2020
Date of Instt. 24.09.2020
Date of Decision: 11.11.2022
Bimal Malhotra son of Late Om Parkash Malhotra House No.ES213A, Makhdoompura, Jalandhar city Profession Businessman.
..........Complainant
Versus
1. Amazon (India), Raj Kumar Road, Mallesjhwaram (West) Bangalore, Karnatka, (India) Pin 5660055. (Seller)
2. Flextronics Technologies (India) Pvt. Ltd. Plot No.3 Phase II, Sipcot Industrial Park, Sriperumbudur Taluk, Sandavellure C Village, Kanchipuram, Tamil Nadu 602106.
3. M/s Huawei Telecommunication (India) Pvt. Ltd. 8th Floor, Tower A, Spaze1-Tech Park Sohna Road, Sector 49n Gurgoan, Haryana 122001
4. M/s Gopal Telecom EH 198 Nirmal Complex 9, 1st Floor, Civil Line, Jalandhar City (Service Provider)
5. Appario Retail Pvt. Ltd. Building nos. 1 & 2 Agsons Global Logistics Park, Vill. Kishora Main G. T. Road, Opp. Tau Devi Lal Park, Sonipat, Haryana PIC 131021 (Seller)
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. G. S. Dhillon, Adv. Counsel for the Complainant.
Sh. A. K. Gandhi, Adv. Counsel for OP No.1.
OPs No.2, 4 & 5 exparte.
Sh. Jatinder Arora, Adv. Counsel for OP No.3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein he has alleged that the complainant purchased new mobile phone Honor 9N (IMEI no.861708013770862) from Amazon Respondent No. 1) vide invoice no. DEL3-107818HBDEL310341920 dated 01.10.2019 sold though M/s Appario Retail Pvt. Ltd. Building nos.1 & 2 Agsons Global Logistics Park, Val Kishora Main G.T. Road Opp. Tau Devi Lal Park, Sonipat, Haryana PIN 131021 for Rs.8499/-. From the very first day the mobile phone was found defective and the complainant sent a message through Amazon App. with request to take the mobile phone back and return the money. Respondent No.1 responded that their representative would visit the complainant within 15 days. On the 16th day their representative visited the complaint and said that the fifteen days had already elapsed and it was not possible to replace the mobile phone and also suggested that to visit their Service Centre at Jalandhar. The complainant visited the Service Centre namely M/s Gopal Telecom EH198 Nirmal Complex 9, 1st Floor, Civil Line Jalandhar City, the Respondent No 4, on 14.11.2019 and complained about the problems being faced specifically mentioning the display issue, voice problem, network etc. The service station returned the phone after some time but the problems persisted. SDue to Corona lock down in Punjab, the complainant could not visit the service station till 09.06.2020. On 09.06.2020 the complainant visited the Service Station Respondent No.4 and told them the problem again regarding hanging and voice ringing etc. The service station took over mobile phone and purportedly after changing motherboard returned mobile phone to the complaint on 01.07.2020. The problem still persisted. The complainant again visited service centre on 09.07.2020 with the complaints of sound problem, hanging, display auto white etc. The Respondent No.4 kept the mobile phone and returned it on 16.07.2020 and told that they had changed the screen. But even then the mobile phone did not work properly and the same problem of voice, sound, network, and screen persisted. The complainant again visited the service centre i.e. Respondent No. 4 after three four days and they want to keep the mobile phone again. The complainant showed his inability to give them the mobile phone again especially when he had visited the service station time and again but the service station had not been able to remove the defects. The Complainant requested them to replace his mobile phone with a new one but they stated that all the components have been changed and it was not possible for them to give a new mobile phone. Having been frustrated the complainant filed complaint at National Consumer Helpline No.2167498, which is still under process. The complainant sent a mail to manufacturer company i.e. OP No.3 which could be delivered after on 16.08.2020. They responded on 17.08.2020 and 18.08.2020 with complaint no.SR2202008171509096F6 and asked the complainant to call on their toll free no.1800-210-999 for immediate support. The Respondent no.3 asked the complainant to visit their Service Centre i.e. Respondent No.4 on 25.08.2020 and again the complainant had to submit his mobile phone to the service center i.e. Respondent no.4. They said they will update about the mobile phone via call but he did not receive any call from Respondent till date. The complainant contacted the Respondent No.3 on their toll free no. 1800-210-999 on 29.08.2020, but the concerns of the complainant were not attended to as their representative told the complainant that a senior executive will call the complainant within 24 hours and resolve the issue. The complainant did not receive any call within 24 hours but did get call after a week from the Respondent No.3 or some agent thereof who inquired about the problems in mobile phone, the complainant explained the problems and the whole ordeal gone through the complainant since purchase of the set. Being a business man, it is a strenuous job for the complainant to operate his business through one phone as a consequence his business has suffered a lot. It is it possible for the complainant to keep visiting the Service centre again and again and keep on corresponding with the multiple Respondents. Besides business loss, the complainant is going through mental agony due to his futile visits to the service station and communication with the Respondents and is having feeling of frustration and of being betrayed and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed, which are as under:-
(i). The Respondents No.1 an electronic service provider, may please be ordered to take back the mobile phone and return the price paid and to compensate the complainant for the business loss, the mental agony undergone by the complainant as well the cost by a consolidated amount of Rs. 50000/-.
(ii). The Respondents No.2 is Product Manufacturer may please be ordered to take back the mobile phone and return the price paid and also to compensate by an amount of Rs. 50000/- for the business loss, the mental agony undergone by the complainant as well the cost of these proceedings.
(iii). The Respondents No.3 is ‘Product Manufacturer' may please be ordered to take back the mobile phone and return the price paid and also to compensate by an amount of Rs.50000/- for the business loss, the mental agony undergone by the complainant as well the cost of these proceedings.
(iv). The Respondents No.4 is product service provider being Product Seller may please be ordered to compensate by an amount of Rs.5000/- for the business loss, the mental agony undergone by the complainant as well the cost of these proceedings.
(v). The Respondents No.5 may please be ordered to take back the mobile phone and return the price paid and to compensate the complainant for the business loss, the mental agony undergone by the complainant as well the cost by a consolidated amount of Rs.50000/-.
2. Notice of the complaint was given to the OPs, but despite service OPs No.2, 4 & 5 did not appear and ultimately, OPs No.2, 4 & 5 were proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the Complainant has incorrectly impleaded Amazon (India) as Opposite Party No.1 to the instant complaint filed before this Commission, whereas the entity operating the ecommerce marketplace: www.amazon.in (“e-commerce marketplace") is Amazon Seller Services Private Limited ("ASSPL/Answering Respondent"), having its registered address at Brigade Gateway, 8th Floor, 26/1, Dr. Raj Kumar Road, Malleshwaram (W), Bangalore- 560055, Karnataka, India. It is submitted that the Complainant has filed the instant complaint without verifying the facts and exercising reasonable due diligence and therefore has wrongly impleaded the Opposite Party No.1 instead of ASSPL as a party to the complaint. A separate Application is being filed to this effect. It is further averred that Mr. Rahul Sundaram is the duly authorized signatory of ASSPL and is duly authorized by Shri Rakesh Mohan Bakshi Director-Legal, who in turn is duly authorized by ASSPL by board resolution dated 22.09.2014 to institute proceedings, to represent ASSPL, to sign and verify documents on its behalf, to swear affidavit, and to do all such other things as may be necessary for the successful pursuit of this matter. It is further averred that the Answering Respondent/ASSPL manages an e-commerce marketplace i.e. www.amazon.in and mobile application namely, Amazon Shopping where independent third-party sellers list their products for sale. Any independent third party 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 marketplace. There is no influence or interference of the Answering Respondent/ASSPL in the said process of listing of products by the independent third party sellers and the sale transactions undertaken by the independent third party sellers. As on date, there are over five (5) lakh such independent third party sellers selling variety of products on the e-commerce marketplace operated by the Answering Respondent/ASSPL. The main role of the Answering Respondent/ASSPL is to make the e-commerce marketplace user friendly for the independent third party sellers to list necessary details of the products and for the buyers for searching and browsing through the said products. All invoices for the sale transactions between the buyers and independent third party sellers are tax invoices issued by such independent third party sellers clearly indicating their unique tax identification number/goods and services tax number (GSTN) AS payments are made directly by such buyers to the independent third party sellers and all products so transacted are delivered directly by the independent third party sellers to such buyers. It is further submitted that all the orders placed by the buyers are directly placed with the independent third party sellers listed on the e-commerce marketplace. and not with the Answering Respondent/ASSPL. The Answering Respondent ASSPL is merely an e-commerce marketplace for the sales transaction entered by and between the buyer and the independent third party seller to the exclusion of the Answering Respondent/ASSPL All the online transactions by the user of the e-commerce marketplace of the Answering Respondent/ASSPL are governed by certain conditions of use and sale which are applicable to all persons intending to purchase any product from the independent third party sellers on the e-commerce marketplace operated by the Answering Respondent/ASSPL. In other words all buyers who transact or make an account on the e-commerce marketplace i.e. amazon.in enter into a ‘Conditions of Use’ agreement with the Answering Respondent/ASSPL where there is a clear understanding on the role of the Answering Respondent/ASSPL qua all sale transactions entered by and between the independent third party sellers and the buyers Clause 3 of the Conditions of Use categorically states the legal position of the Answering Respondent/ASSPL that it is an e-commerce marketplace that provides merely technical and ancillary support to facilitate sale transactions entered by and between the buyer and the independent third party seller. It further clarifies that all the transactions of sale undertaken by a buyer on the e-commerce marketplace are strictly bipartite agreements entered into between the buyer and the independent third party seller listed on the e-commerce marketplace operated by the Answering Respondent/ASSPL It is re-emphasized that the Answering Respondent/ASSPL is not the seller or manufacturer of the products listed on its e-commerce marketplace/ website. Further, Clause 13 of the Conditions of Use states that the Answering Respondent/ASSPL is not liable for performance of the sale agreement executed by and between the buyer and the independent third party seller on the e-commerce marketplace as the agreement of sale entered by and between the buyer and the independent third party seller stipulates that the Answering Respondent/ASSPL has no role to play in the same. On merits, the factum in regard to purchasing the product by the complainant from OP’s website is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the Huawei Telecommunications (India) Co. Pvt. Ltd. is a well-known company of International repute and is engaged in the business and manufacturing of Mobiles, Digital Products (Laptop/tablet) and other accessories (hereinafter referred to as Respondent no. 3). The Respondent no. 3 has always taken due care and caution of the law of the land and has always been in compliance of all the Acts and the Rule of India. It has always taken best possible steps to satisfy all its customers. It is further averred that the present complaint is incorrect misconceived and denied and is nothing but an abuse of the process of law. It is an attempt to waste the precious time of this Commission, as the same has been filed by the complainant just to avail undue advantage. The complaint has no merits and deserves to be dismissed by this Commission under Section 26 of the Consumer Protection Act, 1986 (hereinafter referred to as "The Act") and the Complainant must be ordered to pay to Respondent no. 3, the cost of Rs. 20,000/- for filing this frivolous complaint and harassing the Respondent no.3. The Hon'ble National Dispute Redressal Commission in the matter K. Jayaraman Vs. The Poona Hospital and Research Centre, 1994(1) CPR 23 said that, "where the complaint is mala fide, vexatious and frivolous and the Opposite Party has to incur expenses for contesting the complaint, the Redressal Fora should saddle the complainant with costs". It is further averred that the complainant has filed the present complaint with malafide intention of gaining financial benefit from Respondent no. 3, which cannot be accepted. The Complainant has approached this Commission with unclean hands and filed the complaint only to vex, harass and to harm the reputation of Respondent No.3. On merits, the factum in regard to purchasing the product by the complainant from OP’s website is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder to the written statement of OP No.1 and OP No.3 filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OP No.1 and OP No.3 very minutely.
7. The complainant has purchased the mobile phone from Amazon vide invoice no. DEL3-107818HBDEL310341920, which has been proved as Annexure-A and the seller was OP No.5. The mobile was purchased for Rs.8499/- as per Annexure-A. As per the allegations of the complainant from the very first day, the phone was found defective and he sent messages and emails through OP No.1 to take back the phone. It has been alleged that despite his complaint, the service provider did not bother to visit the complainant within 15 days, due to which the time for return of the mobile was lapsed and he was suggested to visit the service centre at Jalandhar vide Annexure A-1. He has proved on record the Annexure-B to Annexure-G to prove that from time to time he has been making complaints and sending emails to the OP No.4 to solve the problem of the complainant in the phone regarding hanging and voice ringing and the mobile phone was taken over by the OP No.4 and the mother board was changed and the mobile phone was returned on 01.07.2020. It has been alleged that despite that the phone did not work properly. His grudge is that despite his representations, complaints and emails for number of times, his problem was never resolved by the OPs.
8. The contention of the OP No.1 is that the OP No.1 is not liable to pay any amount as the OP No.1 is just an intermediary i.e. to provide online platform to facilitate the transaction in the whole transaction of sale and purchase of goods by the respective sellers and buyers of its website. The OP No.1 is not engaged in selling the goods manufactured on its own. In case of any defect in the goods sold by sellers, it is the seller who is liable for the consequences. The OP No.1 is not involved in entire transaction except for providing the online platform for transaction. There is no privity of contract between the complainant and the OP No.1. The OP No.1 falls within the definition of intermediary as defined under Information Technology Act, 2000 and OP No.1 is protected by the provisions of Section 79 of the IT Act. The OP No.1 is not liable for the delivery of any defective phone supplied by the independent third party seller.
9. With regard to the issue as to whether the complainant is consumer or not, which has been raised by the OP No.1 in his written statement, is not tenable as the complainant has availed the services of the OP No.1 and being the actual & lawful consumer, the complainant has made the payment of the mobile to the OP No.1. Thus, there is a relationship of consumer and service provider between the complainant and the OP No.1.
10. The Ld. Counsel for the OP No.3 had admitted that the complainant purchased the mobile phone. The mobile phone was never submitted by the OP No.3. It has further been alleged that the complainant never presented the phone for any repair work to the service centre and it was on 10.06.2020, the complainant visited the OP No.4 and described fault of hanging issue, display white automatically and fault of third party application issue was found by the service centre i.e. OP No.4. There is violation of the warranty. The necessary repair was done by the service centre. There is no deficiency in service on the part of the OP No.3. The OP No.4 is the service centre of the OP No.3 and the work done by the OP No.4 has been described by the OP No.3 in their written statement.
11. Annexure-A, which is the invoice shows the mobile phone was purchased through Amazon and the service details were also provided to the complainant vide Annexure A-1. This was provided by the Amazon only and not by the seller. Though, the name of the seller has been mentioned, but the transaction and the correspondence has been done through the Amazon. The Annexure-D is the service report dated 09.07.2020 which shows that there was a fault of display auto white and sometimes no sound from other customer. The complainant has reported his grievances vide Annexure-E. The OPs were reported the problems vide emails also. The problem occurred immediately after the purchase of the mobile phone. The mobile phone was within the warranty. The mobile phone was purchased on 01.10.2019 and the grievances reported by the complainant are of the month of November, 2019 i.e. after one month. As per submission of the complainant, the OP No.3 offered him to provide new phone also, but with three months warranty, but since he had purchased the mobile phone for consideration of Rs.8499/-, therefore, he refused to have the phone with three months warranty. If any defect occurs within the warranty period, then the company is liable for the deficiency, as such, the complainant is entitled for the relief as claimed.
12. In the light of above detailed discussion, the complaint of the complainant is partly allowed and all the OP No.5 is directed to refund the price of the mobile i.e. Rs.8499/- to the complainant. Further, the OPs are directed to pay compensation of Rs.5000/- to the complainant jointly and severally for causing mental tension and harassment and Rs.3000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
11.11.2022 Member Member President
