Complaint No: 93 of 2022.

                                                                 Date of Institution: 16.06.2022.

                                                                         Date of order: 01.03.2024.

Inderjeet Singh Son of Balwinder Singh, resident of Sidhu Tent House, Singowal Road, Ajit Nagar, Dinanagar, Tehsil Dinanagar, District Gurdaspur.

                                                                                                                                                                          ….........Complainant.                                                                                                                                                                                                                                                                                                                                                                                                      

                                                                                           VERSUS

1.       Amazon Sales Services Private Limited, (ASSPL) Brigade Gateway, 8th Floor, 26/1, Dr. Raj Kumar Road, Malleshwaram (W) Bangalore – 560055, Karnataka, through its Authorized Representative.

2.       Whirlpool, Plot No. 40, Whirlpool House, Sector 44, Gurugram, Haryana – 122002, through its Authorized Representative.

3.       Tarsem Singh, Incharge, Whirlpool Service Center, Dhakki Road, Pathankot. Pin Code – 145001.

4.       Whirlpool Service Center, Dhakki Road, Pathankot, through its Area Sales Manager. Pin Code – 145001.

                                                                                                                                                                  ….Opposite parties.

                                                             Complaint u/s 35 of Consumer Protection Act.

Present: For the Complainant: Sh.Gagandeep Saini, Advocate.

              For the Opposite Party No.1: Sh.Amit Babbar, Advocate.

              For the Opposite Party No.2: Sh.Narinder Kumar Sharma & Sh.Bhushan Sharma, Advocates.

             Opposite Parties No.3 & 4: Exparte.

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Inderjeet Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act (here-in-after referred to as 'Act') against Amazon Sales Services Pvt. Ltd. Etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that the complainant was intending to purchase Whirlpool 7.5 Kg 5 Star Inverter Fully-Automatic Top Loading Washing Machine with In built Heater (360 Bloom wash Pro INV H) Graphite, Intelligence Inverter Motor) for the purpose of domestic use and for this purpose he had checked the official platform of the opposite party No. 1 and the said product was listed and the price of the product was Rs.24,390/-. It is pleaded that on dated 30.10.2021, the complainant had placed an order for purchase of the above said appliance and had made the payment of the amount of Rs.24,390/- via Credit Card. The Order No. 171- 0983680 - 6845115 dated 30.10.2021 was placed with the opposite party No. 1. It is further pleaded that the opposite party No. 1 has issued an Invoice on dated 02.11.2021 clearly providing all the details of the product order and its payment whereof made by the complainant to them. It is further pleaded that as such the product / appliance was delivered to the complainant at his home address mentioned above. The product was manufactured by the opposite party No. 2 and the opposite parties No. 3 and 4 are their Authorized Service Centre. As such the complainant is the consumer / customer of the opposite parties. It is pertinent to mention here that the Model Number of Product was 31405 and the model was 360 NW Pro INV H 7.5 Graphite and the Serial Number of Product was INF 213329432. It is further pleaded that after the receiving of the product / appliance by the complainant, the complainant when started to use the above mentioned appliance for his personal use. He found that there is some issue / mechanical / manufacturer defect in the washing machine. The complainant immediately thereafter contacted the opposite party No. 1, who advised the complainant to contact with the opposite party No. 2. It is further pleaded that the complainant informed regarding the whole detail to the opposite party No. 2 by calling on their customer helpline number as well as by writing the E-mails to them. The opposite party No. 2 has authorized the opposite parties No. 3 and 4 who are its authorized service center / employee and they through their approved technicians have also visited the house of the complainant and inspected the washing machine / appliance in question thoroughly, but the said manufacturing defect could not be corrected and the washing machine was not working properly, for which the complainant has paid to the opposite parties. It is further pleaded that after lodging complaints several times and after several visits of the technician, the complainant had not only faced the physical harassment, mental agony, but financial loss as well. A part from this, the complainant is not getting the proper fruit of the product / appliance which he has purchased after spending a huge amount from his pocket. The complainant has requested the opposite parties No. 2 to 4 to replace the said product as there is manufacturing defect in the product. It is further pleaded that after a lot of persuasion and repeated requests of the complainant, the washing machine of the complainant was replaced by the opposite parties No. 2 to 4. The old Washing Machine was taken by the opposite parties, and new Washing Machine was delivered to the complainant. It is further pleaded that when the new Washing Machine was delivered to the complainant, the complainant found that the Model of the new Washing Machine was different which has been ordered by the complainant and for which the complainant has paid. Because the earlier machine i.e. the machine which was ordered by the complainant was model Whirlpool 7.5 Kg 5 Star Inverter Fully-Automatic Top Loading Washing Machine with in built Heater (360 Bloom wash Pro INV H) Graphite, Intelligence Inverter Motor) 31405, but the opposite parties while replacing the machine has delivered the product was Whirlpool 7.5 Kg 5 Star Inverter Fully-Automatic Top Loading Washing Machine (360 Bloom wash Pro INV) Graphite, Intelligence Inverter Motor) 31404. The replaced machine was not having feature of Heater. It is further pleaded that the complainant immediately thereafter again contacted the opposite parties No. 2 to 4 and informed them regarding the difference in the model of the replaced product than the product ordered vide telephonic calls to customer care and as well as by writing E-mails to the opposite parties No. 2 to 4. It is further pleaded that the complainant have to run from pillar to post in order to redress his grievances, but the opposite parties had not able to redress his grievances and due to such unfair trade practice of the opposite parties, the complainant could not get fruitful benefit from the above said product even after spending a huge amount from his pocket, which causes a great physical as well as mental harassment to the complainant due to such unlawful act of the opposite parties. It is further pleaded that the opposite parties failed to act on their part. The complainant is suffering at the hands of the opposite parties without any fault on his part. As the above said washing machine purchased by the complainant from the opposite party is of different model and the complainant is not able to use the main feature of heating for which he has paid in excess and the same has become useless for him, and hence the opposite parties failed to perform their duties diligently and there is negligence in services on their part. The complainant has to hire the laundry services from the market. It is further pleaded that  the complainant approached the officials of the opposite parties again and again with folded hands and requested them to redress the grievance of the complainant and to admit his genuine claim, but now the officials of the opposite parties showed reluctance / high headedness attitude and initially the officials of opposite parties kept the matter lingered on one pretext or the other and now finally refused to admit the genuine claim of the complainant and they did not pay any heed towards the genuine requests of the complainant. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to either replace the above mentioned washing machine / product of the complainant or to refund the amount of Rs.24,390/- to the complainant. The opposite parties may be burdened with Rs.1,00,000/- for deficiency in his services and as compensation on account of harassment and mental agony and Rs.30,000/- as litigation expenses may also be awarded to the complainant, in the interest of justice.                                            

3.       Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that an order was placed by the complainant for a "Whirlpool 7.5 kg 5 Star Fully Automatic Top Loading Washing Machine" (here-in-after referred to as "Product") on dated 30.10.2021, vide Order ID: 171-0983680-6845115 (here-in-after referred to as "Order") with an independent third party seller i.e. Cloud tail India Private Limited ("Seller"). It is pleaded that the complainant has not even impleaded the Seller of the product as a party in the present complaint. However, the complainant has impleaded the manufacturer, in charge of service center of the manufacturer and the authorized service center of manufacturer as opposite parties’ No. 2, 3 & 4 respectively. It is further pleaded that against the aforesaid Order placed for the Product, an invoice dated 02.11.2021 bearing SDEI-191187 ("Invoice") for an amount of Rs.24.390/- was issued by Seller duly indicating its Goods and Service Tax Number ("GSTN") i.e. 06AAQCS4259QIZE and the Permanent Account Number ("PAN") i.e. AAQCS4259Q against the said Order. For added emphasis, it is reiterated that the tax invoice was issued by the Seller and not by the answering opposite party No. 1 clearly indicating that the transaction of sale was executed by and between the Complainant and the Seller. It is further pleaded that the payment of consideration towards the Product was made by the Complainant to Seller in the nodal account set up in accordance with the Reserve Bank of India Guidelines bearing No. RBI/2009-10/231 dated 24.11.2009 (here-in-after referred to as "RBI directions"). This notification of the RBI contains directions mandating opening and operation of nodal accounts, not maintained, or operated by intermediaries, for facilitating collection of payments from customers on behalf of the merchant / seller. It is hence clarified that the payment made into the nodal account is not a payment made to the answering opposite party No. 1 herein. Further, it is pertinent to point out that the nodal account is maintained and audited by a bank recognized for such purpose by the RBI, and not by the answering opposite party No. 1. The answering opposite party No. 1 herein is not the account holder or owner of the nodal account and cannot transact at will without restriction on the said nodal account. As per the directions from the RBI, any transaction between at buyer and an independent third-party seller is executed through an independent nodal account maintained by the banks which is separate and free from the internal accounts of the Seller. It is further pleaded that the complainant in the present case has alleged manufacturing defect in the product ordered by the complainant. He further alleged that he asked the OP’s No. 2 to 4 to replace the Impugned Product the OP’s No. 2 to 4 delivered a different product with different specifications and there has been no deficiency on part of the answering OP No. 1 / ASSPL and the present complaint is being bad for mis-joinder of parties. It is further pleaded that the allegations leveled by the Complainant qua the answering opposite party No. 1 are not only without an iota of evidence, but are based on concocted and fabricated stories and are devoid of merits. The Complainant through this complaint is only trying to obtain undue monetary gains from the answering opposite party No. 1, by filing such frivolous complaint. It is further pleaded that the said complaint is liable to be dismissed in limine basis the false statements submitted by the complainant. The complainant should be put to strict proof as to why was the return pick up cancelled and rescheduled several times. The Product was successfully delivered to the Complainant in an intact condition as it was received from the seller without any damage. It is further pleaded that the onus of proof of deficiency in service is solely upon the Complainant and not on an intermediary, such as the answering opposite party No. 1. The onus of proving that deficiency of service against the opposite party No. 1 is on the Complainant. As the Complainant has approached the Hon'ble Commission with the complaint, the Complainant is required to prove that deficiency of service against the answering opposite party No. 1. In case, the Complainant is not able to prove that the deficiency of service lies in part of the opposite party No. 1, then the opposite party No. 1 cannot be held liable for deficiency of service. It is further pleaded that the answering opposite party No. 1 operates and manages the e-commerce marketplace at www.amazon.in  wherein lakhs of third-party sellers and buyers interact and conduct their transactions and as such is an intermediary in terms of Section 2(1)(w) of the Information Technology Act, 2000 ("IT Act"). The opposite party No. 1's online marketplace provides users access to a range of approximately 170 million products listed offered for sale by approximately 5,00,000 registered sellers across a broad range of categories. Any 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. It is further pleaded that the only role of the answering opposite party No. 1 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 the 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). All payments are made directly by such buyers to independent third-party sellers. It is further pleaded that the answering opposite party No. 1 is an ‘intermediary’ as defined under the Information Technology Act, 2000 (here-in-after referred to as the 'IT Act') and complies with all the obligations laid down for intermediaries in the Information Technology (Intermediaries Guidelines) Rules, 2011 (here-in-after referred to as 'the IT Rules'). Section 2(w) of the IT Act defines an intermediary as the following:-

"Intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes".

It is further pleaded that the Complainant has raised issues, which involves question of facts as well as law and it necessarily requires deposition of evidence and trial and the same cannot be done in proceedings under Consumer Protection Act, 2019 which are summary proceedings and the complicated questions of law and facts are beyond the jurisdiction of this Hon'ble Commission. It is further pleaded that the present complaint of the complainant is not maintainable and the complaint is liable to be dismissed on this ground alone and there is no deficiency in service on the part of the answering opposite party No.1.

          On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.

4.       Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint of the complainant is not maintainable in the eyes of law. The allegation of the complainant regarding deficiency in service is totally false and frivolous. Rather it is complainant who is not agreeing to the terms of warranty to which he had given consent at the time of purchase of Washing Machine in question. It is pleaded that the complainant has not come to the Hon'ble Court with clean hands. The present complaint of the complainant is liable to be dismissed with costs against the answering OP No. 2 as no cause of action has arisen in favor of the complainant against the answering OP No. 2. The obligation of the OP No. 2 is set the washing machine right under the terms and conditions of the warranty. The complaint of the complainant was properly attended by the engineers of authorized service station, but every time machine was working fine. It is further pleaded that the answering OP No. 2 has never denied to provide it's after sale service and there is no deficiency of service on the part of the answering OP No. 2. The opposite party No. 2 by this reply assure the Hon'ble Commission to provide its services by inspecting and setting right the washing machine under the terms of warranty. The complainant has filed the present complaint with malafide intention to extract money from the OP’s by dragging them into unwanted litigation on the basis of the false allegation. The complaint of the complainant is liable to be dismissed with costs. It is further pleaded that the request of the complainant for damages is not proper and justified. The complainant has no legitimated for damages as prayed. It is not the case of the complainant where the washing machine is having any irreparable or manufacturing defect and OP’s has willfully deficient in service or indulge in unfair trade practice, but merely asking for compensation alongwith litigation charges had shown the intention of the complainant. It is further pleaded that the complainant has not filed any documentary evidence or report of an expert from the approved laboratory in his support of his allegation in the complaint regarding cause of defect in the washing machine. In the absence of the authentic report the allegation of the complainant are baseless. It is further pleaded that there is no cause of action has arisen in favor of the complainant against the answering OP No. 2. The present complaint is not maintainable as the allegation of the deficiency in service as labeled by the complainant is baseless and without any substance. The complainant himself not failed to adhere to the terms of the warranty despite giving consent to the same at the time of the purchasing of the Washing Machine in question. It is further pleaded that the present complaint of the complainant is not maintainable and the complaint is liable to be dismissed on this ground alone and there is no deficiency in service on the part of the answering opposite party No.2.

          On merits, the opposite party No.2 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.

5.       Opposite parties No 3 and 4 did not appear despite the service of notice and was proceeded against exparte vide order dated 10.08.2022.

6.       Learned counsel for the complainant has placed on file affidavit of Inderjeet Singh, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-7 alongwith complaint.

7.       Learned counsel for the opposite party No.1 has placed on file affidavit of Sh. G S Arjun Kumar, (Working as Corporate Counsel (Litigation), Bangalore) alongwith other documents as Ex.OP-1/1 to Ex.OP-1/5 alongwith reply.

8.       Learned counsel for the opposite party No.2 has placed on file affidavit of Sh. Karan Kohli, (Working as Senior Manager Legal with M/s. Whirlpool of India Ltd.) alongwith reply.

9.       Rejoinder filed by the complainant.

10.     Written arguments filed by the opposite party No.1 but not filed by the complainant and opposite party No.2.

11.     Counsel for the complainant has argued that complainant had purchased one Whirlpool 7.5 Kg 5 Star Inverter Fully-Automatic Top Loading Washing Machine with In built Heater (360 Bloom wash Pro INV H) Graphite, Intelligence Inverter Motor) for the purpose of domestic use vide invoice Ex.C1. It is further argued that the washing machine purchased by the complainant was defective and on complaint being lodged with the opposite parties No.2 to 4 and said defective machine was replaced by the opposite parties No.2 to 4 and a new washing machine was supplied to the complainant. After delivery of the new machine the complainant found that in the new machine supplied by opposite parties the feature of heater was missing. Since the complainant had made payment for purchasing specific product with heater and as such replacement of machine in which feature of heater is missing amounts to deficiency in service.

12.     On the other hand counsel for the opposite party No.1 has argued that opposite party No.1 has nothing to do with the sale and purchase of the machine and opposite party No.1 has only provided market place to the purchaser and seller and the payment of the machine was also made to the opposite party No.2 and as such complaint against opposite party No.1 is not maintainable.

13.     Counsel for the opposite party No.2 has argued that machine of the complainant was replaced on complaint. It is further argued that complaint was registered with the authorized service centre of opposite party No.2 which was attended by the engineer and found the machine working fine. It is further argued that complainant intended to switch to other model as he thinks this particular model is making noise. It is further argued that complainant himself had declined to accept the replaced machine with heater with the plea that machine with heater makes noise.

14.     Opposite parties No.3 and 4 remained exparte.

15.     We have heard the Ld. counsels for the complainant and opposite parties No.1 and 2.

16.     To prove his case complainant has placed on record his duly sworn affidavit Ex.CW-1/a, copy of tax invoice Ex.C1, copy of model number Ex.C2, copy of Aadhaar Card Ex.C3, copy of display of washing machine Ex.C4 and Ex.C5, copy of messages Ex.C6 and Ex.C7 whereas opposite party No.1 has placed on record affidavit of G.S. Arujun Kumar, copy of amazon circular Ex.OP-1/1, copy of authorization Ex.OP-1/2, copy of tax invoice Ex.OP-1/3, copy of letter dated 24.11.2009 Ex.OP-1/4, copy of conditions and use of the product Ex.OP-1/5. Opposite party No.2 has placed on record affidavit of Karan Kohli.

17.     It is admitted fact that Whirlpool 7.5 Kg 5 Star Inverter Fully-Automatic Top Loading Washing Machine with In built Heater (360 Bloom wash Pro INV H) Graphite, Intelligence Inverter Motor) for the purpose of domestic use. It is further admitted fact that the said machine sold by the opposite parties was giving problem and on complaint being lodged the said machine was replaced by the opposite parties No.2 to 4. It is further admitted fact that the replaced machine was not having feature of heater. The only disputed issue for adjudication before this Commission is whether the failure to provide feature of heater in the replaced machine amounts to deficiency in service.

18.     The only plea for having supplied washing machine without heater by the opposite party No.2 is that complainant had himself opted to get the replaced machine without heater as the complainant was of the opinion that washing machine with feature of heater was giving noise but perusal of file shows that there is no such request or message of the complainant for receiving the replaced machine without feature of heater. As such we are of the view that opposite parties No.2 to 4 had deliberately supplied washing machine without feature of heater inspite of the fact that opposite parties had received full payment of Rs.24,390/- for having sold machine to the complainant with feature of heater. As such replacement of defective machine with a new machine without feature of heater amounts to deficiency in service but since machine has been purchased on 02.11.2021 and the machine must had been used by the complainant, as such replacement of the machine at this stage does not seem to be justified. As such we are of the view that complainant can be compensated for the deficiency in service on the part of the opposite parties No.2 to 4.

19.     Accordingly, present complaint is partly allowed and opposite party No.2 to 4 are directed to pay compensation of Rs.5,000/- to the complainant for deficiency in service and Rs.2,000/- as to costs of litigation, mental tension and agony within 30 days. It is further made clear that if amount is not deposited within 30 days from the date of receipt of copy of this order, the amounts referred above shall carry interest @ 9% P.A. from the date of filing of the present complaint till realization.                                                  

20.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                                               

            (Lalit Mohan Dogra)

                                                                                      President.  

Announced:                                                   (B.S.Matharu)

March. 01, 2024                                                    Member.

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