DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Consumer Complaint No.:  CC/167/2017

Date of Institution :    06.12.2017

Date of Decision :    08.04.2019  

Jasmeet Singh son of Sh. Kewal Singh, resident of Village Thullewal, Tehsil and District Barnala.

...Complainant.

    Versus

1. Amazon India Registered Office Address: Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore-560055, Karnataka, India through its Director.

2. Xiaomi Technology India Private Limited, 5th Flr, Delta Blk, Embassy Tech Sq., Marathahalli – Sarjapur Outer Ring Road, Kaverappa Layout, Kadubeesanahalli, Bengaluru, Karnataka-560103 through its Director.

3. Darshata Aashiyana Pvt. Ltd., Unit No. 1, Khewat/khata No. 373/400, Mushtil No. 31, Village Taoru, Tehsil Taoru, District Mewat, Bilaspur, Taoru Road, Mewat-122105 through its Director.

4. S.K. Telecom, Near SBI Bank, ADB Branch, Quilla Mohalla, Barnala (Authorised Service Centre of Xiaomi Phones) through its Authorised Signatory.

...Opposite Parties.

Complaint Under Section 12 of Consumer Protection Act,1986.

Present: Sh. N.K. Singla counsel for the complainant.

Sh. Anuj Mohan counsel for the opposite party No. 1.

Sh. Harpreet Singh Sandhu counsel for opposite party No. 2.

Opposite parties No. 3 and 4 exparte.

Quorum.-

1. Sh. Amrinder Singh Sidhu : President

2. Sh. Tejinder Singh Bhangu : Member

(ORDER BY AMRINDER SINGH SIDHU PRESIDENT):

The complainant Jasmeet Singh has filed the present complaint under Consumer Protection Act, 1986 (as amended up to date) against Amazon India  and others. (hereinafter referred as the opposite parties).

2. The brief facts of the present complaint as stated by the complainant are that the opposite party No. 1 is dealing in the business of online selling of goods and opposite party No. 2 is the manufacturer of Xiaomi mobile phones and selling the same through opposite party No. 1. The opposite party No. 2 delivering the goods through opposite party No. 3 booked online to opposite party No. 1 and opposite party No. 4 is the authorized service centre of opposite party No. 2.  

3. It is further submitted that complainant intended to purchase Redmi-4 Black 32 GB mobile phone manufactured by opposite party so he placed order to purchase the said phone to opposite party No. 1 vide order ID No. 405-7194885-7621106 and made online payment of Rs. 8,999/- to opposite party No. 1 and same was delivered to the complainant through opposite party No. 3 at the billing address 2, Dashmesh Telecom, Sherpur, Dhuri Punjab-148025 given by the complainant. It is further submitted that on receipt of the said mobile phone complainant inserted the sim card but after 2-3 days said phone started giving problems like hanging, slow speed of processing and delay in opening files being having inherent defect in it. 

4. It is further alleged that the complainant made a call to opposite party No. 2 on their toll free number but Executive of opposite party No. 2 made excuses and asked the complainant to wait for 4/5 days as opposite party No. 2 are launching new version 9.0 of the said phone and also instructed him to visit the authorized service centre to update the software system of mobile phone of complainant. 

5. It is further alleged that on the instructions of opposite party No. 2 complainant visited opposite party No. 4 alongwith Rajesh Kumar and told the said problems to opposite party No. 4 who kept the said handset to update the software system vide job sheet No. WXIN1709140009544 in the second week of September 2017.  

6. It is further alleged that software system of said phone was updated by opposite party No. 4 but the said problems could not be rectified, then opposite party No. 4 advised the complainant to return the handset to opposite parties as it was having manufacturing defect. Then the complainant visited the website of opposite party No. 1 to return the said phone on 15.9.2017 but the complainant was shocked to see that the return window against the said ID was closed by the opposite party No. 1.

7. It is further alleged that the complainant requested the opposite parties to return the said phone having manufacturing defect but to no effect. The opposite parties No. 1 to 3 in connivance with each other defraud the consumers by delivering the products having manufacturing defects. The complainant also got served a legal notice dated 21.9.2017 upon the opposite parties to redress his grievance but the opposite parties failed to redress the grievance of the complainant.  

8. Thus, alleging deficiency in service and unfair trade practice on the part of the opposite parties complainant sought the following reliefs.-

a) Opposite parties be directed to refund the amount of the said mobile handset alongwith interest to the complainant. 

b) Further, opposite parties be directed to pay Rs. 50,000/- as compensation for causing physical pain, mental agony, inconvenience and financial loss to the complainant.

c) Further, opposite parties be directed to pay Rs. 10,000/- on account of litigation expenses. 

9. After the service of notice, upon the opposite party, opposite party No. 1 appeared and filed their written version taking legal objections on the grounds that complainant has wrongly impleaded Amazon India as answering opposite party whereas entity operating the URL www.amazon.in is Amazon Seller Services Private Limited. Further, the opposite party No. 1 submitted that it neither sells nor offers to sell any products and only provides an on line market place where independent third party sellers can list their products for sale. Further, they does not advertise or endorse any product or service on its website or anywhere else. So, the sellers may be responsible for their respective listings and products on the website. The answering opposite party is not directly involved in the sale transaction between the customer and seller. The opposite party is only a facilitator and cannot be a party to control in any manner any sale transaction on the website. The 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 Rules 2011 so entitled to an exemption from liability for the information hosted on their portal. 

10. The opposite party No. 1 also taken preliminary objections on the grounds that the complainant does not fall within the definition of consumer under the Consumer Protection Act, 1986. The opposite party No. 1 alleged that complainant has not placed any order for any goods from the opposite party No. 1 nor he paid any consideration to the opposite party No. 1. So, the complaint is liable to be dismissed on account of misjoinder of parties. It is further submitted that the opposite party No. 1 neither sells the items, nor does it possess, inspect or guarantee the condition/delivery of the item unless specifically requested for. There is no privity of contract between the opposite party No. 1 with the buyers so they are not responsible for any non performance or breach of any contract between the complainant and independent third party seller. 

11. The opposite party No. 1 alleged that the complainant by virtue of his use of website agreed to be bound by the terms contained in the Conditions of Use in which it is specifically mentioned that the customer acknowledge and undertake that he is accessing the services on the website and transacting at his own risk and is using his best and prudent judgment before entering into any transactions through the website. The opposite party neither be liable nor responsible for any actions or inactions of sellers nor any breach of conditions, representations or warranties by the sellers or manufacturers of the products and expressly disclaim and any responsibility and liability in that regard. 

12. It is further submitted by the opposite party No. 1 that the alleged manufacturing defects in one Redmi-4 Black 32 GB Mobile Phone purchased by the complainant from Darshata Aashiyana Private Limited a third party seller on the website of opposite party No. 1. The opposite party No. 1 which follows a marketplace based model of e-commerce is an intermediary who only acts as a neutral platform to allow sellers to interact with their customers without exercising ownership over any goods or indulging in the manufacturer or dealing in/of any goods. Moreover opposite party No. 1 is not responsible for the warranty/guarantee of the goods being sold by such sellers. The IT Act exempts intermediaries from liability regarding any third party information, data or communication link made available or hosted by them. The opposite party No. 1 neither has the knowledge nor the facility to ascertain if the alleged defects in the product are due to manufacturing flaws or customer abuse and it is only the manufacturer i.e opposite party No. 3 and the service centre of the manufacturer i.e. opposite party No. 2 who can resolved any such alleged defects with the product. The warranty is provided by the manufacturer subject to the warranty terms and conditions and opposite party No. 1 has no role to play in the warranty terms and conditions. Further, the opposite party No. 1 is an Agent of opposite party No. 2 and as per the provisions of Section 230 of The Indian Contract Act, 1872 the Agent cannot be sued when the principal is available or when the particulars of the principal have already been disclosed. 

13. On merits it is submitted by the opposite party No. 1 that the complainant never approached the opposite party No. 1 with any grievances. However, it is further submitted that as per return policy which is available on the website, it has been clearly stated that as per the policy the products can be replace within 10 days of its purchase. It is further submitted that answering opposite party is not involved in the sale transaction between the customer and seller. Further, the answering opposite party has not caused any mental agony or physical pain or any inconvenience to the complainant. It is denied by the answering opposite party that complaint is under the territorial and pecuniary jurisdiction of this Forum. Lastly opposite party No. 1 prayed for the dismissal of the present complaint or pass any such order which this Forum may deem fit and proper. 

14. The opposite party No. 2 also appeared and filed their written version taking objections on the grounds that complainant purchased a phone of MI Brand namely Redmi-4 Black Mobile phone for Rs. 8,999/- vide invoice dated August 29, 2017 and all MI and Xiaomi Brand phones sold within India are under a standard set of warranty terms and conditions, copy of which is available on the website of opposite party No. 2. Said warranty terms are specific and limited offered in connection with all MI and Xiaomi Branch phones. 

15. It is further submitted by the opposite party No. 2 that on September 14, 2017 complainant approached the authorized service centre of opposite party No. 2 with issues in the product. On examination by the Service Engineer, it was ascertained that the product was facing issues related to hanging, auto off of applications during usage in the product. The Service Engineer duly recorded the issue in service job sheet No. WXIN1709140009544 and provided job sheet to the complainant. After examining the product at the service centre, the defects related to the product was duly repaired by updating the system software by the technicians of the authorized service centre of the opposite party No. 2 as per the standard warranty conditions and the product was duly returned to the complainant in proper working condition. So, there is no deficiency in service on the part of opposite party No. 2. 

16. It is further submitted by the opposite party No. 2 that the complainant in the present case has, in fact not, presented any evidence to prove that the alleged defects in the present complaint are consequence of defects in the product and these defects are not a consequence of use or mishandling by the complainant which shows that the present complaint is only filed to get replacement/refund and in order to unnecessarily harass the opposite party No. 2. Further, it is also clear that if any defect within a product is capable of being rectified by repair or by replacement of the defective part such rectification or replacement by the opposite party No. 1 is entirely sufficient and consistent with the warranty obligations, so the complainant is not entitled to any relief other than repair or replacement of the defective part in the product. 

17. On merits the opposite party No. 2 denied the contents of paragraphs No. 1 to 7 being false and concocted. The authorized service centre of opposite party No. 2 duly repaired the product of the complainant as per warranty terms and conditions. Further, the complainant has not provided any evidence to prove or demonstrate manufacturing defects in the product. Lastly, the opposite party No. 2 prayed for the dismissal of the present complaint with costs. 

18. The opposite parties No. 3 and 4 failed to appear before this Forum despite service so the opposite parties No. 3 and 4 were proceeded against Ex-parte vide order dated 2.2.2018.  

19. The complainant in order to support his complaint has tendered in evidence copy of bill Ex.C-1, copy of job sheet No. WXIN1709140009544 Ex.C-2, copies of screen shots/photos of non performance of applications/ systems of mobile phone Ex C-3 to Ex.C-50, copy of legal notice dated 21.9.2017 Ex.C-51, postal receipts Ex.C-52 to Ex.C-55, copy of account statement of Gagandeep Singh of HDFC Bank Branch Village Nangal District Barnala Ex.C-56, affidavit of complainant Ex.C-57, affidavit of Gagandeep Singh Ex.C-58 and closed the evidence. 

20. On the other hand the opposite party No. 1 to support their version have tendered into evidence affidavit of Rahul Sundaram Ex.OP-1/1, copy of authority letter Ex.OP-1/2, copy of board resolution Ex.OP-1/3, copy of conditions of use Ex.OP-1/4, copy of claims of right Ex.OP-1/5, copy of Amazon Software Terms Ex.OP-1/6 and closed the evidence on behalf of opposite party No. 1. The opposite party No. 2 to support their version have tendered in evidence affidavit of Sameer BS Rao Ex.OP-2/1, copy of warranty card Ex.OP-2/2, copy of warranty statement Ex.OP-2/3, copy of service record Ex.OP-2/4 and closed the evidence on behalf of opposite party No. 2. 

21. We have heard the learned counsel for the parties and have gone through the record on the file. Written arguments also filed by the parties.

22. It is admitted fact between the parties that the complainant purchased Xiaomi mobile phone from the opposite party No. 1 manufactured by opposite party No. 2 for Rs. 8,999/- vide bill dated 29.8.2017 Ex.C-1. It is also admitted by the opposite party No. 2 that the mobile phone was got defective within the warranty period which was for one year for the Hardware Product and six months for battery, charger and other accessories as per Ex.OP-2/2. It is also admitted by the opposite party No. 2 that the complainant approached its authorized service center i.e. Opposite party No. 4 on September 14, 2017. It is further admitted by the opposite party No. 2 that on examination by the Service Engineer of opposite party No. 4 the product was having the problems of hanging and auto off of applications during usage which are mentioned by the complainant in his complaint and affidavit Ex.C-1. Further, it is admitted by the opposite party No. 2 that its authorized service center opposite party No. 4 duly recorded the problems in the job sheet No. WXIN1709140009544 which was duly provided to the complainant. 

23. The main questions arises in present case is that the product is having manufacturing defect or not and opposite parties are deficient in providing service to the complainant and indulging in unfair trade practice or not. 

24. To prove this point the complainant tendered in evidence his affidavit Ex.C-1 in which he categorically deposed that the mobile which was purchased by him started giving problems only after 2-3 days of its receipt like hanging, slow speed of processing and delay in opening the files due to manufacturing defect. He further deposed in this affidavit that then he made a call on the toll free number of opposite party No. 2 but with no result. Further, to prove the defects in the mobile set the complainant tendered in evidence copy of job sheet Ex.C-2 and copies of screen shots of non performance of applications Ex.C-3 to Ex.C-50 which duly proved that there are several defects in the mobile phone of the complainant. Even he got issued legal notice Ex.C-51 and sent through postal receipts Ex.C-52 to Ex.C-55 to opposite parties but his mobile has not been replaced by them. 

25. On the other hand the opposite party No. 2 failed to file any document which may prove that the mobile set of the complainant is not having any manufacturing defect. The opposite party No. 2 itself tendered a document i.e. Service record Ex.OP-2/4 on the file in which the defects of hanging, applications does not proper working error and auto off applications when usage, are clearly mentioned. This document Ex.OP-2/4 admitted the case of the complainant that his mobile set was having the several defects which also claimed by him in his complaint. 

26. Further, the service record Ex.OP-2/4 and copy of job sheet Ex.C-2 were issued by the opposite party No. 4 to the complainant who is the authorized service center of the opposite party No. 2 and it is only the  opposite party No. 4 who can tell that the mobile was having manufacturing defect or not. But the opposite party No. 4 intentionally not appeared before this Forum despite service and remained exparte which also proved that the opposite party No. 4 has nothing to say against the claim of the complainant and not having any document to rebut the evidence of the complainant. On the other hand the complainant proved his claim beyond any doubt by tendering cogent, convincing and reliable evidence on the file.

27. The Hon'ble State Commission, UT, Chandigarh in Appeal No. 263 of 2016 decided on 6.12.2016 titled Simerpreet Singh Versus Punjab Mobile Care and others in similar case in which the mobile handset got defective only after the purchase of 2 days, ordered the opposite parties to refund the price of mobile handset amounting to Rs. 34,900/-, Rs. 10,000/- towards compensation for harassment and mental agony and Rs. 5,000/- towards litigation expenses.

28. In view of the above mentioned facts, circumstances and citation it is clearly proved that the opposite parties No. 2 and 4 are deficient in providing services to the complainant and also indulging in unfair trade practice. However, the opposite party No. 1 being mediator and opposite party No. 3 being sender have not liable as there is no deficiency of service on their part.  

29. In view of the above discussion, present complaint is allowed against the opposite parties No. 2 and 4. Accordingly, the opposite parties No. 2 and 4 are directed to refund the price of the mobile handset amounting to Rs. 8,999/- to the complainant within the period of 30 days from the date of the receipt of the copy of this order, failing which the opposite parties No. 2 and 4 shall be liable to pay interest to the complainant at the rate of 9% per annum from the date of institution of the present complaint till its actual realization. The opposite parties No. 2 and 4 are also directed to pay Rs. 5,000/- to the complainant for physical harassment and mental agony besides Rs. 2,500/- towards litigation expenses. Both the opposite parties No. 2 and 4 are jointly and severally liable to comply with this order. Compliance of order be made within the period of 30 days from the date of the receipt of copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due completion.

ANNOUNCED IN THE OPEN FORUM:

8th Day of April 2019

 

 

            (Amrinder Singh Sidhu)

           President

 

 

           (Tejinder Singh Bhangu)                Member