Delhi

North East

CC/40/2016

Mohd. Athar - Complainant(s)

Versus

Amazon Seller Service - Opp.Party(s)

29 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

Complaint Case No.40/16

 

In the matter of:

	Mohd. Athar V-287, Street No. 21A, Vijay Park, Maujpur, Delhi-110053.	Complainant
	Versus
1.         2.	YU Televentures Pvt Ltd, New Delhi. 21/14, Block A, Phase II, Nariana Industrial Area, Naraina, New Delhi-110028.   Amazon Seller Services Pvt Ltd Having office at Bridge Gateway, 8th Floor, 23/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore-560055.	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

01.02.2016 18.05.2018 29.05.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that he had purchased YU Yureka Mobile model no. AO5510 of OP1 company as manufacturer thereof through online seller Amazon i.e. OP2 herein on 05.03.2015 vide invoice no. HR-DEL2-144105041-1056269 for a sum of Rs. 8,999/-. The said mobile was having one year warranty from the date of purchase and six months warranty on accessories thereof. The complainant has stated that OP1 in its terms and conditions on website had stated that “we will provide a replacement handset to you within 48 hours of complaining. Actual time depends upon your location. Just give us a call at our support number and we will take it up as soon as possible.” The complainant has stated that on 11.10.2015, all of a sudden his said mobile stop functioning for which he contacted OP1 customer care on their help line number on 12.10.2015 and on the same day mailed the details of the said mobile phone on the e-mail ID of the OP1 vide ticket number 1468323. After much wait and numerous communication with OP1, the complainant was given an old mobile by OP1 through courier on 04.11.2015 (first replacement of mobile). However, the said mobile was not working for which the complainant contacted the customer care of OP1 on 05.11.2015 which advised him to go to their service centre M/s Garhwal Communication, Chand Bagh Delhi which the complainant visited on 07.11.2015 and handed over the defective exchanged handset for repair / replacement vide a jobsheet no. NO31597-1115-20174289. The complainant got another old mobile by OP1 on 02.12.2015 (second replacement of mobile) through courier which also turned out to be faulty for which he contacted the customer care of OP1 again on 03.12.2015 which informed him the complainant that the battery may be faulty and asked the complainant to purchase a new one. Therefore the complainant paid Rs. 499/- to OP1 for  purchase of a new battery on 24.12.2015 however he was given an old / used / faulty battery on 28.12.2015 which got discharged / drained totally and got swelled up. The complainant contacted the customer care of OP1 yet again on 28.12.2015 reporting the battery issue and the customer care of OP1 informed the complainant that the old battery will be swapped with a new one and after a long wait, on 22.01.2016, OP1 sent battery through courier and the delivery boy asked for cash of Rs. 499/- which the complainant refused to pay since he had already paid the said amount in December 2015 to OP1. Therefore since the mobile which was under warranty till 04.03.2016 but became defective on 11.10.2015 itself had caused mental agony and tension and OP1 did not take any action to address the problem of the complainant, the complainant was constrained to file the present complaint before this Forum praying for directions against OP1 to provide a new mobile with new battery with one year warranty and compensation of Rs. 1,00,000/- for harassment, mental pain, agony and wasting time and money of the complainant. The complainant had also prayed for appropriate action against OP2 for selling products of such a defaulter company without any verification.

The complainant has attached a copy of retail/tax invoice dated 05.03.2015 of purchase of mobile of OP1 through online purchase from OP2, copy of warranty card, copy of declaration letter cum-delivery challan dated 26.10.2015, copy of jobsheet dated 07.11.2015 submitting the faulty mobile with service centre of OP1 Garhwal Communication, copy of customer dispatch slip dated 30.11.2015, retail invoice dated 24.12.2015 of Rs. 499/- for purchase of new battery and retail invoice dated 11.02.2016 price nill for purchase of mobile battery.

2. Notice was issued to the OPs. OP2 did not appear despite effected on 07.03.2016 and was proceeded against ex-parte vide order dated 22.04.2016. OP1 entered appearance on 21.03.2016 and filed written statement in which he took the preliminary objection that it neither sells nor offers to sale any product and merely provides a technology platform (an online market place) where independent third party sellers can list their products for sale and these sellers are themselves responsible for their respective listing and products on the website and the OP1 does not intervene or influence any customer nor is it involved in sale transaction between customer and seller and is a mere facilitator and cannot be a party responsible for any sale transaction on its website since the contract of sale of products on its website strictly a bipartite contract between the customer and the seller. The OP2 further took the defence that the complainant had not bought the subject mobile from OP2 nor has the complainant had paid any consideration against the purchase thereof and therefore OP2 was not a necessary or a proper party to the present complaint. The OP2 further raised the objection that as per the “Condition of Use” which the complainant has explicitly by virtue of his use of OP2’s website had agreed to be bound by the terms contained therein, the complainant had agreed, understood and acknowledged OP2 as an online platform for enabling purchase from third party and that OP2 is only a facilitator and not a party in control of any transaction. Further OP2 relied upon clause 13 which was a disclaimer vide which the complainant had acknowledged and undertaken to access the services of the website of OP2 and transact at his own risk using his best and prudent judgment before entering into any transaction through OP2 and that OP2 shall neither be liable nor responsible for any action /inaction of sellers or any breach of conditions, representations or warranties by seller or manufacturers of the products thereby expressly disclaiming all responsibility and liability in that regard. Further that at no time shall any right, titled or interest in the products sold through or displayed on the website vest with Amazon nor shall Amazon have any liabilities in respect of any transaction on the website. The OP2 further raised objection that no deficiency of service can be attributed to OP2 since the complainant had purchased the subject Yu Yureka mobile from third party seller through the website of OP2 and hence the seller and buyer were governed by “Conditions of Use” and that the product in question was delivered to the complainant in a sealed box by OP2 as it was received from the manufacturer and / or seller and therefore OP2 was not liable to pay any compensation to the complainant, there being no liability of after sales service on the part of OP2 whose role was limited to that of an online facilitator. The OP2 further took the defence that the relief claimed by the complainant was beyond the T&C of usage and sale and OP2 neither had knowledge nor facility to ascertain if the defects in the mobile were due to manufacturing flaw or customer abuse and since the complainant fully understood the responsibility/ liability of OP1, he immediately approached the authorized customer care / service centre being well aware of the return policy of OP2 that the product could be returned within 10 days of the delivery in case of damage or defect post which as per the policy, the customer has to approach respective manufacturer (OP1) under warranty for repairs. Therefore OP2 prayed for dismissal of the present complaint on grounds of mis-joinder of it being arraigned as necessary party when it was neither manufacturer or seller of the mobile in question and placing reliance upon the “Condition of Use” which binds the complainant on accessing and transacting through it.
3. Rejoinder and evidence by way of affidavit was filed by the complainant exhibiting the documents placed on record alongwith the complaint and reiterating his grievance.
4. Evidence by way of affidavit was filed by OP2 exhibiting the authority letter and board of resolution in favour of Rakesh Mohan Bakshi, Director Legal and copy of “Conditions of Use” of the website of the OP Amazon.in.
5. Written arguments were filed by both the parties delineating their respective complaint / defence.
6. We have heard the rival contentions of the complainant and OP2.

The OP1 failed to appear or rebut to the allegations leveled against it by the complainant of selling defective mobile which stopped working within 7 months of its purchase and after several swapping of mobile phone giving in lieu thereof which all turned out to be defective / non functional, the grievance of the complaint could not be addressed despite several follow up visits and repeated repair/replacement. We are therefore of the considered opinion that the allegation of the complainant against OP1 regarding manufacturing defect in the Yu Yureka Mobile purchased from OP1 have since gone un-rebutted by OP1, the same is proven from the documentary evidence placed on record by the complainant. We therefore hold OP1 guilty of deficiency of service and direct OP1 to replace the defective mobile handset with a brand new handset of cost of Rs. 10,000/- approx with new battery and all accessories in original untampered sealed box with one year warranty. We also direct OP1 to pay to the complainant a sum of Rs. 5,000/- as compensation for mental harassment pain and agony suffered by the complainant due to defective handset.

As for OP2, notwithstanding the defence taken by it as a mere online facilitator between the buyer an vendor and not a party to any dispute arising between them for any deficiency of service, OP2 acts as a medium of communication between the buyer and seller and since this is a business interest, it cannot be said or construed as a gratuitous service to its consumers since OP2 brings into existence contracts of sale and purchase of moveable goods and therefore it cannot be permitted to claim that such services are without are consideration since OP2 is clearly not a charitable organization involved in e-commerce with no business returns for itself.We therefore, holding OP2 as agent who sold the Yu Yureka Mobile, duty bound to ensure its quality and if the product was found defective which it was, agent i.e. OP2 shall be vicariously liable for the loss caused to the purchaser i.e. the complainant herein, alongwith the liability of the manufacturer of the product i.e. OP1. This view was held by the Hon’ble NCDRC in the case of Emerging India Real Assets Pvt Ltd Vs Kamer Chand and Anr. in RP no. 765/2016 decided on 30.03.2016. We therefore direct OP2 to pay a sum of Rs. 5,000/- to the complainant for facilitating sale of defective mobile phone on its website. Let the order be complied with by the OPs within 30 days from the date of receipt of copy of this order.

7.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8.   File be consigned to record room.
9.   Announced on 29.05.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member