BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint Case No.162 of 2018.
Date of institution: 29.05.2018.
Date of decision:13.06.2019.
Sumit Jaglan Advocate, Lawyer, Chamber No.42, District Courts, Kaithal.
…Complainant.
Versus
- Amazon Seller Services Company Amazon, Registered Office, Address; Brigade Gate Way, 8th floor, 26/1, Dr. Raj Kumar Road Malleshwaram (W) Bangalore-560055 through its Managing Director.
- Redmi Customer Care Centre, Opposite Old D.C.Residence, Karnal Road, Kaithal through its prop./partner.
- Xiaomi Technology India Pvt. Ltd. by rising stars mobile India Pvt. Ltd. 380 Beleica Road, Sri City Siddam Agra-hara Villge Varadalahpalem Mandal Chiitor District (Andhra Pradesh), Pin Code-517541 through its Managing Director.
….Respondents.
Before: Sh. D.N.Arora, President.
Sh. Rajbir Singh, Member.
Smt. Suman Rana, Member.
Present: Complainant in person.
Sh. Munish Sikri, Advocate for the OP.No.1.
Op No.2 exparte.
Sh. Vikram Tiwari, Adv. for the Op No.3.
ORDER
D.N.ARORA, PRESIDENT
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainant purchased a mobile set of Redm Mi-Max bearing IMEI No.883409030479223 for a sum of Rs.19,999/- through online booking dt. 31.05.2017 from the Op No.1. It is alleged that after few days of its purchase, the said mobile set became defective with the problems i.e. automatic off during its operation for calling, online use, download and during its operation it heats up to the extent that it was not possible to carry in hand. It is further alleged that the complainant visited the Op No.2 upon which the mechanic of Op No.2 got hold the above-said mobile of complainant and after three days returned to the complainant but despite repair, the defects from the mobile set were not removed and working of mobile set became bad to worst because the mobile set started giving problem in its proper charging the battery back up and the screen of mobile set became darkish the digest of data’s were not visible. The complainant made several requests to the Ops to repair or replace the said mobile set but the Ops did not listen the genuine request of complainant. So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint. Hence, this complaint.
2. Upon notice, the OPs No.1 & 3 appeared before this Forum and contested the complaint by filing their replies separately, whereas Op No.2 did not turn-up and opted to proceed against exparte vide order dt. 20.09.2018. Op No.1 filed the reply raising preliminary objections that the complainant does not fall within the definition of ‘consumer’ under the Consumer Protection Act, 1986. Admittedly, the complainant has not bought any gods from ASSPL nor has the complainant paid any amount/consideration to ASSPL. The goods have been bought by the complainant from the independent third-party seller selling its products on the website operated by the Op No.1. Accordingly, the complainant does not fall within the definition of ‘consumer’ vis-à-vis the Op No.1. Further, the Op No.1 has merely provided an online marketplace where independent third-party sellers have listed their products for sale. The Op No.1 is neither a necessary nor a proper party in the complaint. The complainant has not bought any goods from ASSPL and it has acted as an intermediary only. Further, the amount paid by the complainant is against an invoice raised by the seller of the product and the Op No.1 has no claim over the said amount. There is no deficiency in service on the part of Op. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
3. Op No.3 filed the reply raising preliminary objection that on 26.10.2018 the complainant approached the authorized service-centre of the Op No.3 that the product was facing issue related to “Power of fault & display colour spot”. The service engineer duly recorded the issue in service job-sheet and provided the job-sheet to the complainant. The technician of the authorized service-centre of the Op No.3 duly repaired the product as per the standard warranty conditions and duly returned the product to the complainant in proper working condition. There is no deficiency in service on the part of Op. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
4. The complainant tendered into evidence affidavit Ex.CW1/A and documents Ex.C1, Ex.C2 and Annexure-CA and thereafter, closed the evidence.
5. On the other hand, the Op No.1 tendered into evidence affidavit Annexure-RW1/A, Op No.3 tendered into evidence affidavit Annexure-RW3/A and thereafter, closed the evidence.
6. We have heard both the parties and perused the record carefully.
7. Undisputedly, the complainant purchased the mobile set in question from the Op No.1 through online for the sum of Rs.19,999/-. According to the complainant, after few days of its purchase the said mobile set became defective with the problems i.e. automatic off during its operation for calling, online use, download and during its operation it heats up to the extent that it was not possible to carry in hand. The grievance of the complainant is that he approached the Op No.2 regarding defective mobile set but despite repair, the defects were not removed from the mobile set. The complainant has also supported his versions by affidavit Ex.CW1/A and documents Ex.C1, Ex.C2 & Annexure-CA.
On the other hand, the OP No.1 produced on the file affidavit Ex.RW1/A and Op No.3 tendered into evidence affidavit, Ex.RW3/A, whereas the OP No.2 did not appear and proceeded against ex parte. However, it is made clear that the OP No.3 has mentioned in the reply that the technicians of the authorized service-centre of Op No.3 duly repaired the product as per the standard warranty conditions but they have not placed on file any job-sheet. So, the evidence of complainant that there were defects in the mobile set, goes unrebutted against the OPs. The OP No.1 contended that he is not the manufacturer but an online market place and a platform for different sellers to sell their products. According to Section 79 of the Information Technology Act, 2000, the OP No.1 is exempted from liability for third party information, data or communication link made available or hosted by it. So, in view of above facts and circumstances of the case, we are of the considered view that the mobile set in question of the complainant became defective within the warranty period and the OPs No.2 & 3 have failed to resolve the defects of said mobile set. Hence the OPs No.2 & 3 are deficient in providing services to the complainant.
8. During the arguments, ld. Counsel for the complainant stated that the complainant has purchased a new mobile set and the mobile set, if replaced by the Ops is of no use for the complainant, so, in the interest of justice, the cost of mobile set may please be ordered to got returned from the Ops. We found force in this contention of the complainant because the defects arose in the mobile set time and again. In this regard, we can rely upon the authority decided by Hon’ble State Commission, Haryana bearing first appeal No.460 of 2014 decided on 28.05.2014 titled as Deepjot Singh Vs. The Mobile Store. So, keeping in view the above citation, we are of the considered opinion that the interest of justice will be met if the cost of mobile set be ordered to be refunded after making 40% depreciation of the same.
9. Thus, as a sequel of above discussion, we allow the complaint partly against the Ops No.2 & 3 and direct the Ops No.2 & 3 to pay Rs.11,999.40 paise rounded as Rs.12,000/- the cost of the mobile set after deducting 40% depreciation i.e. (Rs.19,999/- less Rs.7999.60 paise-=Rs.11,999.40 paise rounded as Rs.12,000/-). The complainant is directed to deposit the old mobile set alongwith accessories with the service-centre of Ops. Both the Ops No.2 & 3 are jointly and severally liable. Let the order be complied with within 30 days from the date of preparation of copy of this order, failing which, the complainant shall be entitled interest @ 9% p.a. from the date of commencement of order till its payment. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
Dt.:13.06.2019.
(D.N.Arora)
President.
(Suman Rana), (Rajbir Singh)
Member Member.
