Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he placed an order on 06.02.2017 for the purchase of a Leeco Max 2 X821 Grey Mobile, having Order no.408-8077615-3718734 from Opposite Party No.1 for a sum of Rs.17,609/- which was delivered to the complainant approximately after 15 days. At the time of purchase of the mobile set in question, Opposite Party No.1 gave warranty of one year on behalf of Opposite Parties No.2 to 4 regarding the quality of mobile. Opposite Party No.1 also assured the return policy in case of any defect whatsoever found in the mobile set, then the mobile set be replaced or amount be refunded and this mobile set has been purchased from Opposite Party No.2 through Opposite Party No.1. Further alleges that the complainant used the mobile set in question for four months but thereafter, it started creating problems and stopped working. On 08.08.2017 the complainant handed over the mobile set in question to Opposite Party No.3 service centre vide jobsheet No.JS17080800087. Thereafter, the complainant visited the Opposite Party No.3 time and again, but to no affect and at last, failed to give any satisfactory reply. From the perusal of the above said facts, it is crystal clear that the Mobile Set in question is having manufacturing defects which can not be removed and the Opposite Parties have sold the defective Mobile Set in question to the complainant which caused great mental tension and harassment. As such, the Opposite Parties are responsible for the same. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to replace the defective mobile set with new one or refund the amount of Rs.17,609/- alongwith interest @ 18% per annum and also to pay of Rs.50,000/- on account of compensation due to mental tension and harassment caused by the complainant as well as costs of litigation amounting to Rs.11000/-.
3. Opposite Party No.1-Amazon aappeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that Opposite Party No.1-Amazon neither sells nor offers to sell any product and merely provides an online marketplace where independent their party sellers can list their products for sale and the sellers themselves are responsible for their respective listings and products on the website. The answering Opposite Party is only a facilitator and can not be a party to or control in any manner any sale transaction on the website. The contract of sale of products on the website is strictly a bipartite contract between the customers and the seller. Moreover, Opposite Party No.1 is an intermediary as per the information Technology Act, 2000 and complies with all the obligations laid down for intermediaries in the information Technology (intermediaries Guidelines) rules, 2011 and thus is entitled to an exemption from liability for the information/ material hosted on its portal. Moreover, the subject matter of dispute is limited to the alleged manufacturing defects in one Leeco Max which as purchased by the complainant vide order ID 408-8077615-3718734 on the website from Speedy Marketing on February 06, 2017 and duly delivered and moreover, the product in question is neither manufactured nor sold by Opposite Party No.1 and hence, Opposite Party No.1 has been unnecessarily and wrongly arrayed as party to the present complaint without any cause of action. In nutshell, Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, there is no deficiency in service on the part of the Opposite Party No.1 and the complaint may be dismissed with costs.
4. On the other hand, none has come present on behalf of Opposite Party No.2 to 4 and hence, they were proceeded against exparte.
5. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C-A alongwith copies of documents Ex.C1 and mark A and closed the evidence on behalf of the complainant.
6. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 tendered into evidence the affidavit of Sh.Rahul Sundram Ex.RA alongwith copies of documents Ex.R1 to Ex.R3 and closed the evidence.
7. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
8. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the complainant placed an order on 06.02.2017 for the purchase of a Leeco Max 2 X821 Grey Mobile, having Order no.408-8077615-3718734 from Opposite Party No.1 for a sum of Rs.17,609/- which was delivered to the complainant approximately after 15 days. At the time of purchase of the mobile set in question, Opposite Party No.1 gave warranty of one year on behalf of Opposite Parties No.2 to 4 regarding the quality of mobile. Opposite Party No.1 also assured the return policy in case of any defect whatsoever found in the mobile set, then the mobile set be replaced or amount be refunded and this mobile set has been purchased from Opposite Party No.2 through Opposite Party No.1. Further alleges that the complainant used the mobile set in question for four months but thereafter, it started creating problems and stopped working. On 08.08.2017 the complainant handed over the mobile set in question to Opposite Party No.3 service centre vide jobsheet No.JS17080800087. Thereafter, the complainant visited the Opposite Party No.3 time and again, but to no affect and at last, failed to give any satisfactory reply. From the perusal of the above said facts, it is crystal clear that the Mobile Set in question is having manufacturing defects which can not be removed and the Opposite Parties have sold the defective Mobile Set in question to the complainant which caused great mental tension and harassment and as such, the Opposite Parties are responsible for the same.
9. On the other hand, ld.counsel for the Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. Further contended that Opposite Party No.1-Amazon neither sells nor offers to sell any product and merely provides an online marketplace where independent their party sellers can list their products for sale and the sellers themselves are responsible for their respective listings and products on the website. The answering Opposite Party is only a facilitator and can not be a party to or control in any manner any sale transaction on the website. The contract of sale of products on the website is strictly a bipartite contract between the customers and the seller. Moreover, Opposite Party No.1 is an intermediary as per the information Technology Act, 2000 and complies with all the obligations laid down for intermediaries in the information Technology (intermediaries Guidelines) Rules, 2011 and thus is entitled to an exemption from liability for the information/ material hosted on its portal. Moreover, the subject matter of dispute is limited to the alleged manufacturing defects in one Leeco Max which as purchased by the complainant vide order ID 408-8077615-3718734 on the website from Speedy Marketing on February 06, 2017 and duly delivered and moreover, the product in question is neither manufactured nor sold by Opposite Party No.1 and hence, Opposite Party No.1 has been unnecessarily and wrongly arrayed as party to the present complaint without any cause of action and there is no deficiency in service on the part of Opposite Party No.1. We do agreed with the aforesaid contention of the ld.counsel for Opposite Party No.1 because Opposite Party No.1 is an intermediary as per the information Technology Act, 2000 and complies with all the obligations laid down for intermediaries in the information Technology (intermediaries Guidelines) rules, 2011 and thus is entitled to an exemption from liability for the information/ material hosted on its portal. Moreover, the subject matter of dispute is limited to the alleged manufacturing defects in one Leeco Max which as purchased by the complainant vide order ID 408-8077615-3718734 on the website from Speedy Marketing on February 06, 2017 and duly delivered and moreover, the product in question is neither manufactured nor sold by Opposite Party No.1.
10. On the other hand, the main grievance of the complainant is that the Mobile Set in question is having manufacturing defect and Opposite Party No.3 could not give any satisfactory reply in this regard and since then, the Mobile Set in question is lying with Opposite Party No.3 which was handed over to them vide Jobsheet Ex.Mark-A. It is the case of the complainant that due to non redressal of his grievance by the Opposite Parties, he suffered a lot on account of mental tension and harassment in the hands of the Opposite Parties. To corroborate her aforesaid assertion, the Complainant has placed on record his duly sworn affidavit Ex.C1 alongwith copies of bill Ex.C2 alongwith copy of payment information and copy of job sheet Ex.Mark-A and in this regard, he sought compensation to the tune of Rs.50,000/-on account of mental tension and harassment caused in the hands of the Opposite Parties and cited judgement of Hon’ble Supreme Court of India titled as Patel Roadways Ltd. Vs. Birla Yamaha Ltd. III (2000) SLT 554-II (2000), CLT 83 (SC), 1(2000) CPJ 42 (SC) 2000 (4) SCC, 91. The aforesaid evidence produced by the complainant has gone unrebutted and unchallenged through any cogent and convincing evidence on record as the Opposite Parties No.2 to 4 did not opt to appear and contest the proceedings. In this way, the Opposite PartiesNo.2 to 4 have impliedly admitted the correctness of the allegations made in the complaint. It also shows that Opposite Parties No.2 to 4 have no defence to offer or defend the complaint.
11. So, from the entire unrebutted and unchallenged evidence produced by the complainant on record, it stands fully proved on record that the Opposite Parties No.2 to 4 have adopted unfair trade practice and deficiency in service by not redressing the grievance of the complainant. On this count, the Complainant prayed for refund the amount of Mobile Set in question as well as to pay Rs.50,000/- as compensation for causing him mental tension and harassment and Rs.11,000/- as costs of litigation, but we are of the view that the claim for compensation to the tune of Rs.50,000/- appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.5,000/- and we award the same accordingly against Opposite Parties No.2 to 4.
12. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against Opposite Parties No.2 to 4 and the Opposite Parties No.2 to 4 are jointly or severally directed to refund the price of the mobile set in question i.e. Rs.17,609/- to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 12.12.2017 till its actual realization. Opposite Parties No.2 to 4 are also directed jointly or severally to pay compensation to the complainant for causing him mental tension and harassment to the tune of Rs.5,000/- (five thousands only). Complaint against Opposite Party No.1 stands dismissed. The compliance of this order be made by Opposite Parties No.2 to 4 jointly or severally within 45 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
Announced in Open Commission at Camp Court, Ludhiana.
Dated:25.03.2022.
