DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No.132 of 19.4.2017

                                      Decided on: 15.7.2021

Priyanka @ Priyanka Gupta, aged about 33 years, daughter of Sh.Parmod Kumar, resident of House No.212, Anand Nagar-A,Tripuri Town, Patiala.

                                                                   …………...Complainant

                                      Versus

1. Amazon Seller Services Pvt. Ltd. Usually known as Amazon India, having its registered office at Brigade Gateway, 8^th Floor, 26/1, Dr.Rajkumar Road, Malleshwaram (W), Banglore, Karnatka through its Incharge/authorized person.
2. Apple India Private Limited, having its branch office at Uniworld 1^st Floor, Mill Building , Bhupindra Road, Near Columbia Hospital, Patiala through  its Incharge/authorized person.
3. BuyerBabu, Q-4, 1^st Floor, Sector 10, Nivedita Kunj, R.K.Puram, New Delhi-110022 (India)

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. Jasjit Singh Bhinder, President

                                      Sh.Y.S.Matta, Member

                                      Sh.Vinod Kumar Gulati,Member     

ARGUED BY

                                      Sh.M.K.Garg,counsel for complainant.

                                      Sh.Amit Bedi,counsel for OP No.1.

                                      Sh.Vikas Walia, counsel for OP No.2.

                                      Opposite party No.3 ex-parte.                                     

 ORDER

                                      JASJIT SINGH BHINDER,PRESIDENT

1. This is the complaint filed by Priyanka @ Priyanka Gupta (hereinafter referred to as the complainant) against Amazon Seller Services Pvt. Ltd. and others (hereinafter referred to as the OP/s) under the Consumer Protection Act, (hereinafter referred to as the Act).
2. Briefly the case of the complainant is that she purchased a I-phone 5S (32GB)  mobile set bearing serial No.013967006301035 from OP No.1 through their online website i.e. Amazon.in vide order ID No.4040-0220211-6937100 dated 4.8.2016 by making payment of Rs.31,110/- i.e. Rs.31990/- for mobile handset + Rs.120/- as delivery charges through debit card.The set in question was  guaranteed for a period of one year against any problem. It is averred that the complainant started using the said mobile phone with all due care and in a proper manner but it started giving problem in its functioning. The complainant approached the service center of OP No.2 who told that the IMEI number of the phone set is US based and for the same services are not provided in India and refused to repair the phone in question. It is averred that thereafter, the complainant approached OP No.1 through their customer care service and registered her complaint with it who forwarded the complaint  to its selling partner  BuyerBabu i.e. OP No.3.OP No.3 sent an email to the complainant .The complainant replied the email stating her grievance. OP No.3 replied that  the iPhone comes within one year onsite seller warranty and will be pickedup from the location of the complainant for its repair. Thereafter, BuyerBabu got picked the mobile in question through its agent for repair. After some time the complainant asked for the status of the above said mobile phone on which OP No.3 sent tracking address to track the phone. Complainant again sent email to OP no.3 asking for the status of the Iphone in question in response to which OP No.3 replied that the mobile set could not be repaired as it got mother board issue and the cost of the new mother board is almost equal to the new I phone. Thereafter complainant sent email to Amazon i.e. OP No.1but no reply was given. It is further averred that the OPs have not done anything either towards repairing the phone or to issue the new mobile phone. There is thus deficiency in service on the part of the OPs, which caused mental agony and harassment to the complainant. Hence this complaint with the prayer for giving directions to the OPs to pay Rs.31,110/- actual price of the mobile set in question, Rs.50,000/- as compensation and Rs.10,000/-as costs of litigation.
3. Initially notice of the complaint was given to OPs No.1&2 who appeared through their counsel and contested the complaint by filing separate written reply. Thereafter on the request of the complainant OP No.3 impleaded .Notice was also sent to OP No.3 but it failed to come present and was accordingly proceeded against ex-parte.
4. In the written statement filed by OP No.1 at the outset  it is submitted that it neither sells nor offers to sell any products and merely provides an on online marketplace where independent third party sellers can list their products for sale and are responsible for their respective listings and products on the website. ASSPL is not involved in the sale transaction between the customer and seller. It is only a facilitator. Further preliminary objections have been raised to the extent that the present complaint is false, frivolous, vexatious and abuse of the process of law; that the complainant does not fall within the definition of consumer; that this Forum has no jurisdiction to entertain the present complaint; that the complainant has not approached the Hon’ble Forum with clean hands and is liable to be dismissed.
5. On merits, it is admitted that the complainant placed an order for I Phone in question from the seller of the website of the OP on 4.8.2016.It is further submitted that as per the case of the complainant the product started giving malfunctioning in the first week of February 2017 and she approached the customer service team of OP on 13.2.2017 and the complainant was asked to contact the seller for the redressal. It is further submitted that the warranty is provided  by the manufacturer. It is pleaded that the complainant has not bought any product from the OP against any consideration as the product has been bought by the complainant from the independent third party seller selling its products on the website operated by the OP. Further the OP reiterated the facts as raised in the preliminary objections and after denying all other averments has prayed for the dismissal of the complaint.
6. In the reply filed by OP No2, it also raised preliminary objections that the present complaint is not maintainable as the entire claim is made against OPs No.1&3.The OP No.2 is not responsible in the transaction nor there is any privity of contract between OP No.2 and the complainant.
7. In parawise reply it is admitted to that extent that OP No.2 is manufacturer of Apple Products. It is further admitted that the complainant purchased the I phone in question from amazon.in. It is pleaded that OP No.2 does not have any repair history related to the disputed device, therefore OP No.2 cannot be held liable for the acts and omissions of others and has been impleaded unnecessarily by the complainant. The complainant never approached OP No.2 for any assistance. So, there is no deficiency in service on the part of OP No.2. After denying all other averments the OP No.2 prayed for the dismissal of the complaint.
8. In support of the complaint, the ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Exs.C1 to C15 and closed the evidence.
9. The ld. counsel for OP No.2tendered in evidence Ex.OPA affidavit of Priyesh Poovanna, Country Legal Counsel Apple India Ltd. alongwith documents Exs.OP1 to O P3 and closed the evidence.
10. The ld. counsel for OP No.1 has tendered in evidence Ex.OPB affidavit of Rahul Sundram alongwith documents Exs.OP4 to Ex.OP6 and closed the evidence.
11. The ld. counsel for the complainant has argued that OP No.2 is the manufacturer of  I Phone. The ld. counsel further argued that OP No.3 used to sell the products of OP No.2 on website of OP No.1.The ld. counsel further argued that the complainant purchased I phone 5S 32 GB from OP No.1 through online for Rs.31110/- on 4.8.2016 and the same was having guarantee of one year. The ld. counsel further argued that after purchase of set, the complainant started using it but the same started giving problem in the functioning. Complainant approached  OP No.2 who told that the IMEI number is US based and for the same service is not provided in India and refused to repair the Iphone. The ld. counsel further argued that thereafter in the month of February, the complainant approached OP No.1 through customer care service but nothing was done. So the complaint be allowed.
12. On the other hand, the ld. counsel for OP No.1 has argued that there is no illegality on behalf of Amazon.The ld. counsel further argued that phone was purchased from OP No.3 so it is the responsibility of OP No.3 to provide a defect free phone. So complaint be dismissed.
13. The ld. counsel for OP No.2 has argued that OP No.2 has no concern as phone was purchased through Amazon and it was purchased from BuyerBabu OP No.3 and all the claim is made against OPs No.1&3 so it be decided against OPs No.1&3.
14. To prove this case, the complainant has tendered in evidence his affidavit, Ex.CA and he has deposed as per his complaint. He also tendered the documents Exs.C1 to C15 on the file.
15. Sh.Priyesh Poovanna, has tendered his affidavit, on behalf of OP No.2 and he has deposed as per the written version. OP No.1 has tendered affidavit Ex.OPB of Rahul Sundram  and he has deposed as per the written version.
16. Vide Ex.C1 the I phone in question was purchased through Amazon.The  Amazon purchased the same from BuyerBabu for Rs.32110/-.So it is clear that phone was purchased through on line and Amazon got the same purchased from OP No.3 who is exparte. Ex.C2 is copy of bill from Amazon of total amount of Rs.32110/- dated 5.8.2016,Ex.C3 is conversation with BuyerBabu through e-mail regarding repair of iphone 5S.It is mentioned by BuyerBabu OP No.3  that the phone is warranted for one year.Ex.C4 is also e-mail replied by Priyanka Gupta to BuyerBabu. It is mentioned that the iphone purchased by her is shown to be US based phone and its service is not provided in India. So she is facing problems.Ex.C5 is also correspondence between BuyerBabu. It is mentioned that the phone comes within one year Onsite seller warranty. It is also submitted that the phone will be picked up from your location, it will get repaired from authorized Apple centers and will be delivered to the complainant. In the another e-mail of BuyerBabu, it is mentioned that it apologize for inconvenience and will arrange to pickup the phone and to get it repaired.Ex.C7 is also correspondence between BuyerBabu and complainant. It is stated that they did not have a replacement policy but only repair policy available for used phones.Ex.C9 is also correspondence with BuyerBabu and Priyanka Gupta. Ex.C11 is also e-mail of BuyerBabu to the complainant. It is written that  repair of the phone could not be completed,Ex.C13 is also correspondence of BuyerBabu.It is mentioned that the phone could not repaired due to motherboard failure and costs of new motherboard is equal to the new Iphone.Ex.C14 is the complaint sent by Priyanka Gupta to Amazon.So from all the correspondence brought by the complainant on the file, it is clear that Amazon got  purchased the Iphone 5S from OP No.3 and this Iphone was manufactured  in USA and as per the email on the file the service center of Apple does not repair any phone which is made in USA. So it is clear that the BuyerBabu OP No.3 has played fraud with the complainant as it sold a wrong phone made in USA the service of which is not available in India. Amazon who has received the money from Priyanka Gupta was also duty bound to ensure that valid phone should have been supplied to her of which repair is available in India. So it is clear that fraud has been played by BuyerBabu and Amazon. Amazon is a big marketing website and it is not expected from it to play fraud with the customers who have good faith on them.
17. In the present case there is no fault of OP No.2 i.e. Apple India Private Limited and the  affidavit has been filed  by Priyesh Poovanna on its behalf who has deposed per the version of the written reply.
18.  By going through all the documents on the file, it is proved that the main fault is of OP No.3 who is exparte and the Amazon who has purchased the phone from OP No.3 by receipt Ex.C1 for Rs.31110/- in which the seller name is clearly mentioned as BuyerBabu and online service was given by Amazon to OP No.3.So it is clear from the record on the file that the Iphone which was purchased on 4.8.2016 was having warranty of one year and motherboard was defective one  which was not repaired or replaced by OPs No.1&3.
19. So due to our above discussion, the complaint stands allowed  and OPs No.1&3 are equally liable for the same. OPs No.1&3 are directed collectively to provide a defect free new Iphone to the complainant the service of which be available in India or to refund Rs.31110/- to the complainant alongwith interest @6% per annum from 5.8.2016 till it is paid .Both OPs No.1&3 are burdened with costs of Rs.15000/-each as they have played fraud with the complainant and also to pay Rs.10,000/-each as costs of litigation.
20. Compliance of the order be made by the OPs within a period of 45 days from the date of the receipt of the certified copy of this order.

ANNOUNCED

DATED:15.7.2021       

                            Vinod Kumar Gulati      Y.S.Matta           Jasjit Singh Bhinder

                                    Member                Member                      President