DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 76 of 2019.

 

Sri Animesh Baidya,

S/O.Lt. Satyabrata Baidya,

C/O.Sri Sunil Das,

Jogendra Nagar, Near Vidyasagar Bridge, Agartala,

Dist.-West Tripura, ….........….......................................................................Complainant.

 

-VERSUS-

 

1. Amazon Seller Services Private Ltd.

Brigade Gateway, 8th Floor,

26/1, Dr. Rajkumar Road, Malleshwaram(W), 

Bangalore-560055,

Karnataka, India.

 

2. Amazon Courier Service Hub,

Dhaleswar Road No.13,

Near UBI Bank, Blue Lotus Club Chowmuhuni,

Agartala, West Tripura

 

3. Manager, 

Customer Care,

Xiaomi Technology,

India Pvt. Ltd. 4th Floor,

Ozone Manay Tech Park, 

Hongasandra, Bangalore, Karnataka........................................................ Opposite Parties.

 

 

     __________PRESENT__________

 

 SRI RUHIDAS  PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

 

For the Complainant : Sri Mridul Kanti Arya,

  Sri Saptarshi Roy,

  Advocates. 

 

For the O.P. No.1 : Sri Ranjan Bhattacharjee,

  Sri Mallika Roy,

  Sri Basudev Chakraborty,

  Advocates. 

For the O.P. Nos.2 & 3 : None appeared. 

 

JUDGMENT  DELIVERED  ON : 12/04/2021.

J U D G M E N T

          The Complainant Sri Animesh Baidya, set the law in motion by presenting the complaint petition U/S 12 of the Consumer Protection Act, 1986  complaining negligence & deficiency of service by the O.Ps. 

The Complainant's case, in brief, is that the Complainant searched for one mobile phone of Xiaomi mobile Mi A3 in the net wherein one of the specification is dual sim card (nano + nano) with dual standby (4G+4G) and internal ram is 64 GB which can be expandable upto 256 GB and other specification. The Complainant booked the mobile on 27/08/2019 for an amount of Rs.12,998/-. The said mobile phone namely Xiaomi mobile Mi A3 was delivered on 29/08/2019 vide order number 407-0707201-6799550 & invoice number SCCC-74283 dt. 27/08/2019 bearing IMEI No.868581045780830 & 868581045780822. After receiving this mobile the Complainant noticed that there is only one nano sim card slot and one SD card slot where one nano sim card could be inserted but at a time if 2 sim card slot used then SD card could not be inserted. Thereafter, the Complainant on many occasion tried to return the said phone and lastly on 05/09/2019 the Complainant again made a contact with the customer care executive for return the said mobile phone but the customer care executive again informed that there is no return policy except replacement. If the mobile phone have any technical defect then replacement policy can be available. So due to misleading advertisement made by the O.P. No.I the Complainant purchased the same and he suffered a lot. 

So, being aggrieved and dissatisfied with the conduct of the O.Ps.,  the Complainant alleging deficiency of service has filed the instant complaint before this Commission claiming Rs.1,60,000/-(Rs.1,00,000/- + Rs.30,000/- + Rs.15,000/- + Rs.15,000/-)  as deficiency of service and as compensation for causing harassment, Legal expenses and  mental agony  from the O.Ps.  

 

2. On admission of the complaint notices were issued upon the O.Ps. But the O.P. Nos.2 & 3 after receiving the notice did not turn up and consequently the case was proceeded ex-parte against them vide orders dated 13/11/2019 & 27/01/2020. The O.P. No.1 contested the proceedings by way filing written version. In the written version O.P. No.1 submitted para-wise reply to the complaint in seritem. The O.P. No.I in their written version challenged the maintainability of the proceedings on the ground that the O.P. No.I is not the actual seller as well as manufacturer of the Goods. They are only an agent of the seller wherein there is an online marketplace where independent third party sellers list their products for sale are exhibited. The O.P. No.I is not involved in the same transaction between the customer and seller, they are only a facilitator. The contract of sale of products on the Website is strictly a bipartite contract between the customer and the seller. It is further, stated that the Complainant has not bought any goods from the O.P. No.I and it has acted as an inter-media only. So, the O.P. No.I is neither a necessary nor a proper party in the complaint. They also further stated that the Complainant purchased a goods from the Darshita Aashiyana Private Ltd.(Seller) selling on the Website operated by the O.P. No.I on 27/08/2019 and that seller was not made a party in the instant case. So, the complaint is bad for non-joinder of necessary party as well as miss-joinder of the parties. It is further stated that the Information Technology Act, 2000 exempts intermediaries from liability regarding any third-party information, data or communication link made available or hosted by them. In support of the defense the O.P. No.I relied upon some decisions of the Apex Court as well as the National Commission. 

           At last, it is submitted that the complaint is not maintainable in law and it is liable to be dismissed.                     

 

3. EVIDENCE ADDUCED BY THE COMPLAINANT:-

Complainant has examined himself as PW-I and he has submitted his examination-in-Chief by way of Affidavit. In this case the complainant produced 3 documents comprising 8 sheets under a Firisti dated 07/09/2019. The documents are namely Photo copy of mobile specification displayed in Amazon website, Photo copy of mobile specification displayed in Xiaomi website  & Photo copy of Computer generated cash memo/invoice. On identification the  documents are marked as Exhibit-I series. The Complainant was cross examined by the O.P. No.1. 

    The O.P. No.I has declined to adduce evidence. 

POINTS TO BE DETERMINED:-

    Based on the contentions raised by the Complainant in the pleadings and having regard to the evidence adduced by the complainant, the following points are cropped up for determination:-

    (i). Whether the complaint is maintainable in law for non-joinder of necessary party or miss-joinder of parties ? 

     (ii).  Whether there is any deficiency of service on the part of the O.Ps. towards the Complainant and have also indulged in unfair trade practices?

  (iii). Whether the complainant is entitled to get  any compensation/relief as prayed for?           

 

5.              ARGUMENTS OF BOTH SIDES: 

        Both sides submitted their written arguments. 

Learned Counsel of the Complainant argued that the Complainant on 27/08/2019 searched for one mobile phone of  Xiaomi mobile Mi A3 in Amazon application wherein one of the specification was dual sim card with dual standby (4G+4G) and internal ram of 64 GB and being satisfied with the specification he purchased the mobile phone for an amount of Rs.12,998/- and accordingly it was delivered on 29/08/2019 and after receiving the mobile the Complainant noticed that there is only one nano sim card slot and one SD card slot. Thereafter the Complainant on many occasions tried to return the said mobile phone and made contact with customer care service but it is informed that there is no return policy accept replacement. The replacement policy can be available if there is any technical defect. It is argued that due to miss leading advertisement by Amazon as well as  Xiaomi mobile Mi A3 mobile Website the Complainant was cheated. It is further argued by the Counsel of the Complainant that all the O.P. including Amazon are liable to compensate for doing unfair trade practice and the Complainant claimed in total Rs.1,60,000/- on different counts.   

On the other in the O.P. No.I submitted in the written argument that the Complainant placed an order to the Darshita Aashiyana Private Ltd. who is the seller of mobile phone for a consideration of Rs.12,998/-. Where as the O.P. No.I is E-commerce market place operated by them and they are not responsible or liable for any breach of contract. It is further argued that the O.P. No.I does not sell or offer to sell any products and neither they advertise or endorse any products or service on its  E-commerce market place where independent third-party sellers list their products for sale are shown. The third-party sellers themselves are responsible for their respective listing and products on the E-commerce. It is further argued that the Complainant has not impleaded the independent third-party seller that is the  Darshita Aashiyana Private Ltd. As a result the complaint is bad for non-joinder of necessary party and miss-joinder of party. 

DECISION AND REASONS FOR DECISION:

       Point No.I:- Whether the complaint is maintainable in law for non-joinder of necessary party or miss-joinder of parties ?   

          We have meticulously gone through the pleadings as well as evidence and documents of parties.  

         On perusal of the complaint we find no where  name of the seller of the mobile phone. It is crystal clear that the Complainant searched for purchasing the mobile phone namely  Xiaomi mobile Mi A3 as per specification shown in the Amazon application but from the exhibited documents that is exhibit -I series, we find that the mobile phone was sold by the  Darshita Aashiyana Private Ltd. who is a seller of the mobile phone and it is a Company of Hoogly, West Bengal. The exhibited documents is very much clear about the purchase or billing address, shipping address and invoice No. We can not say that the Complainant is not aware about the name and address of the seller of the mobile phone, but the Complainant did not make the seller as a party in this case who is in our opinion a necessary party. In the instant case we find that the O.P. Nos.2 &3 did not turn up but that does not mean that in their absence we can decide the case as the Complainant failed to implead the necessary party that is the seller of the mobile phone. From the written version submitted by the O.P. No.I, we find that the contract of sale of products on the Website is strictly a bipartite contract between the customer and the seller. 

 

 

7.        After consideration all facts and circumstances of the case we find there is no dispute that the Complainant purchased Xiaomi  Mi A3 mobile phone using the Website of the O.P. No.I through online system on 27/08/2019 for sum of Rs.12,998/-. The allegation of the Complainant is that the mobile phone which is received by him is not as per specification as shown by the O.P. No.I. Accordingly, the Complainant prayed for replacement of said mobile phone or to refund the price along with a compensation. We have already mentioned that the Complainant did not make the seller as a party of this case who is the necessary party and accordingly the instant case is not maintainable in the absence of the necessary party and it is bad in law. 

            Accordingly, this issue is decided in the negative. 

            Issue Nos.-2 & 3 : 

      In view of the decision and findings of issue No.I.

           These issues are also decided in the negative. 

              Order:

           

      As per decision of the issue No.I the Complaint is not maintainable in law and accordingly the complaint is dismissed. No costs.       

            Supply copy of order free of cost to the Complainant as well as the O.P. No.I.             

         

    Announced.

 

SRI  RUHIDAS  PAL

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

 

 

  DR (SMT)  BINDU  PAL

 MEMBER, 

DISTRICT CONSUMER DISPUTES 

REDRESSAL COMMISSION, 

WEST TRIPURA, AGARTALA