Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 424
Instituted on : 27.08.2019
Decided on : 13.02.2023
Sushant Kumar age 27 years, son of Shri Mahesh Kumar resident of House no.207, Sector-2, Rohtak.
..............Complainant.
Vs.
- Amazon India, Regd Office: Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram(W) Banglre-560055 through its Managing Director.
- Appario Retail Private Ltd., Rect/Killa Nos 38//8/2 min 192//22/1, 196//2/1/1, 37//15/1, 15/2, Adjacent to Starex School Binola, National Highway 8, Tehsil Manesar Gurugram-122143 through its Authorized person/Proprietor.
- Apple India Private Limited, 19th floor, Concorde Tower C, UB City no.24, Vital Mallya Road, Bangalore-560001 through its Managing Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh.Ankit Hooda Advocate for the complainant.
Shri Sandeep Raj, Advocate for the opposite party No. 1.
Shri Kunal Juneja Advocate for the opposite party No.3.
Opposite party no. 2 exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case, as per complainant are that he ordered an Apple Iphone X64GB Space Grey colour vide order no.402-6276350-9315525 on dated 16.02.2019 for a consideration of Rs.74999/- from the opposite party No.1 who introduced itself the authorized dealer of opposite party No.3. Complainant also availed finance facility from ‘Bajaj Finserve” for taking the aforesaid mobile phone. Opposite party No.1 assured the complainant that the aforesaid handset will be delivered in intact and sealed condition. The aforesaid order was delivered to the complainant on 25.02.2019 but when the complainant opened the box, the handset was physically damaged from its back side and on the same date, the matter was conveyed to the opposite party No.1 through email. The representative of opposite party No.1 admitted their mistake and deployed a representative to pick up the product and the same was picked up by him after checking and verifying the same vide Ref. Tracking no.710884634283 dated 26.02.2019. But after repeated requests, no handset was replaced by the opposite party No.1. Complainant requested the opposite party either to replace the mobile or to refund the price of the mobile set as the complainant was burdened with the EMI from BAJAJ Finserve, but the request of the complainant was never heeded to. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay the complainant the value of mobile phone alongwith interest, compensation and litigation expenses as explained in relief clause.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party no. 1 in its reply has submitted that it is denied that the complainant purchased the said product from ASSPL. It is denied that ASSPL is the authorized dealer of the product. ASSPL merely acted in the capacity of an intermediary for the transaction which took place between the independent third party seller and the complainant. It is submitted that ASSPL does not sell or offer to sell any products and neither does ASSPL advertise or endorse any product or service on its website or anywhere else and it merely provides an online marketplace where independent third party sellers list their products for sale. Therefore, the sellers themselves(and not ASSPL) are responsible for their respective listings and products on the website. It is submitted that the assurance of the defects in the mobile handset is only given by the manufacturer or the seller of the product. It is denied that the said product was delivered to the complainant on 25.02.2019. It is submitted that the complainant purchased the said product on 16.02.2019 and the same was duly delivered to the complainant at his registered address on 18.02.2019. On 21.02.2019 after 3 days of delivery, the complainant informed about the alleged defects in the product. As already informed, the seller initiates refund only on receipt of the product. However, the complainant did not return the product which was originally delivered to the complainant. Hence the refund/replacement could not be provided for. The allegations made against ASSPL in the present complaint appear to be an afterthought of the complainant. Therefore the instant complaint is liable to be dismissed against ASSPL on this count alone.
3. Opposite party No.3 in its reply has submitted that firstly the complainant has provided Serial number of the alleged iPhone X as BO72LPF91D this is an invalid serial number and not that of an iphone x produced by opposite party No.3. The identity of the product as a product manufactured and sold by the opposite party No.3 is not established as it’s not a genuine product. Secondly the complainant admits in the complaint that the said device was damaged at the time it received by him from the opposite party No.1. It is pertinent to mention that the warranty given by the opposite party No.3 does not cover physical damage. It is further submitted that complainant failed to produce valid evidence to prove that the alleged device is a product of opposite party No.3. He has not done the same and is making bald allegations without providing any substantial evidence to prove the identity of the said iPhone. He is not a consumer of opposite party No.3, hence this complaint is not maintainable. As such it is prayed that complaint may kindly be dismissed with costs.
4. Notice sent to opposite party No.2 through registered post received back with the report of refusal. As such opposite party No.2 was proceeded against exparte vide order dated 04.12.2019 of this Commission.
5. Ld. Counsel for the complainant in his evidence has tendered affidavits Ex.CW1/A, Ex.CW2/B & Ex.CW2/B and documents Ex.C1 to Ex.C12 and has closed his evidence on dated 05.02.2021. Ld. counsel for the opposite party no.1 has tendered affidavit Ex.RW1/B and document Ex.R3 and has closed his evidence on dated 11.02.2022. Ld. counsel for the opposite party no.3 has tendered affidavit Ex.RW1/A and document Ex.R1 to Ex. R2 and has closed his evidence on dated 27.10.2021.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case it is not disputed that the complainant had purchased the mobile in question on 16.02.2019 from the opposite party No.1 for a sum of Rs.74999/- as is proved from the invoice Ex.C3. As per email Ex.C6 & Ex.C7 dated 25.02.2019, it is submitted by the complainant that he had received a damaged product. Complainant has also placed on record copies of photographs of damaged mobile placed on record as Ex.C8 & Ex.C9. As per refund/replacement slip Ex.C10 dated 26.02.2019, opposite party no.1 had picked up the returned item for refund/replacement of the product. As per email Ex.C11 dated 02.03.2019, opposite party No.1 had regretted for delivering the damaged product to the complainant. Opposite party assured the complainant to resolve the problem. It is also submitted in this email that once the product was returned to their warehouse, the refund will be automatically credited to the referable account of the complainant without any further delay. It is further assured that the complainant will definitely receive the refund on time. But despite giving the alleged assurances, no refund was made by the opposite party no.1. Thereafter complainant also made email Ex.C12 dated 07.03.2019 to the opposite party no.1 for refunding the money but the same has not been refunded to the complainant till date. After going through the documents placed on record, it is observed that once the opposite party no.1 admitted the delivery of damaged product, picked up the said product and assured the complainant to refund the amount of product without any delay, it was the duty of the opposite party No.1 to fulfill its promises and to refund the amount of product. But the opposite party No.1 failed to keep its words and not refunded the amount of mobile phone to the complainant, which shows that there is deficiency in service on the part of opposite party no.1. As such opposite party no.1 is liable to refund the price of mobile set of Rs.74999/- say Rs.75000/-(rounded off) to the complainant.
8. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.1 to refund the price of mobile set Rs.75000/-( Rupees seventy five thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.27.08.2019 till its realization and shall also pay Rs.3000/-(Rupees three thousand only) as compensation on account of deficiency in service and Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
13.02.2023.
.....................................................
Nagender Singh Kadian, President
..........................................
Tripti Pannu, Member.
……………………………….
Vijender Singh, Member
Sushant Vs. Amazon
Present: Sh.Divyam Panghal Adv. for applicant/opposite party No.1.
None for the opposite party.
File has been summoned on the application filed by ld. Counsel for the applicant/opposite party No.1 for correction of order dated 13.01.2023 of this Commission on the ground that that in the above mentioned order the name of counsel of opposite party No.1 is mentioned as Sh. Sandeep Raj instead of Sh. Divyam Panghal. It is prayed that necessary correction be made in the alleged order in the interest of justice.
After going through the file and hearing ld. Counsel for the applicant/opposite party No.1, it is observed that in the present case firstly Sh. Sandeep Raj appeared on behalf of opposite party No.1 but lateron Sh. Divyam Panghal filed his power of attorney. But due to inadvertent mistake, his presence could not be marked in the judgment dated 13.02.2023. As such necessary correction is hereby made in the order dated 13.02.2023 and it is directed that the name of counsel for the opposite party no.1 be read as Sh.Divyam Panghal instead of Sh. Sandeep Raj in the judgment dated 13.02.2023 as well as in the zimni order of the same date. This order should be read as part of previous judgment already announced on 13.02.2023 of this Commission. Copy of this order be placed on the main file and will be annexed with the judgment dated 13.02.2023 and also supplied to both the parties free of costs. Misc. Application is hereby disposed of and be attached with the main file. File be consigned to the record room after due compliance.
Member Member President/20.02.2023
