THE PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

CASE No. CC- 25  of  2021

 

Smt. Ruma Saha,

W/O- Kamal Roy Chowdhury,

Flat Ground Floor, Professor Para,

Near Bijoy Apartment, Agartala,

West Tripura, Pin- 799004. ...................Complainant.

 

-VERSUS-

 

1. Amazon.com,

Brigade Gateway,

8th Floor, 26/1, Dr. Rajkumar Road,

Malleshwaram(W), Bangalore - 560055.

Karnataka, India, through its Manager/Authorizes Signatory,

 

2. RITU

M.S. Traders,

Bearing No.4/3 Weakarol Bagh,

Karol Bagh, Karol Bagh,

New Delhi- 110005.  

 

3. MI Service Centre Agartala,

HR Services, Lakshmi Narayan Bari Road,

Near Markline Consultancy & South,

Agartala, Tripura- 799001, 

Though its Manager,/ Authorized Signatory.

 

4. Xiaomi Technology India Private Limited,

8th Floor, Tower- 1, Umiya Business Bay Marathal-Sarjapur,

    Outer Ring Road, Bangalore- 560103.

Karnataka, India, 

Through its Manager/ Authorized Signatory.  ......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

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

C O U N S E L

 

For the Complainant : Sri Manojit Saha,

  Sri Surajit Sarkar,

  Learned Advocates.

  

For the O.P. No.1 : Sri Amritlal Saha.

   Sri Kajal Nandi,

   Sri Sunil Bhowmik,    

     Learned Advocate.

 

For the O.P. No.2, 3 & 4 : Exparte.

 

 

  

JUDGMENT  DELIVERED  ON : 28.12.2022.

 

J U D G M E N T

The case led to the proceedings for being a complaint petition filed by Smt. Ruma Saha, W/o Sri Kamal Roy Choudhury, Agartala (here-in-after referred to as ‘Complainant’) against: (i) Amazon.com, Bangalore (here-in- after referred to as ‘O.P.1’) (ii) RITU, M.S. Traders, New Delhi (here-in-after referred to as the ‘O.P.2’) (iii) MI Service Centre, Agartala (here-in-after referred to as ‘O.P.3’) (iv) Xiaomi Technology India Pvt. Ltd., Bangalore (here-in-after referred to as ‘O.P.4’) u/s 35 of the Consumer Protection Act, 2019.

2. The case, in brief is that the Complainant purchased one mobile hand-set with the brand-name and specifications as Redmi Note 5 Pro Gold, 4 GB IMEI No.867194036742784 valued Rs.11,000/- from O.P.1 which was delivered to him on 27.11.2020 against his order No.407-3875367-8302744 placed with O.P.1. The phone was bought in exchange of an old Gionee Mobile for an exchange value of Rs.800/-. After few months of delivery of the mobile-set, disturbances/ problems developed in it and the same was produced to O.P.3 for repair. But, O.P.3 declined to render any after-sales service on the mobile as they discovered that the mobile was earlier activated on 29.03.2018 and thus the warranty period of the mobile had already got lapsed. It has also been intimated by O.P.3 that earlier this mobile was got repaired in a MI service centre at Mumbai. The Complainant averred that a second-hand mobile-set was sold to him by O.P.1. Thereafter, on 02.02.2021, the Complainant sent an e-mail to O.P.3 for providing replacement of the defective mobile or, alternatively, refund of Rs.11,100/- (Rs.10,200/- + Rs. 800/-+ Rs.100/-). The Complainant also sent an e-mail to O.P.1 on 6.2.2021 requesting them to either replace the defective mobile or refund the amount. A legal notice was sent to the O.P.2 but the notice was received by the party. The Complainant also received a response from O.P.3 through e-mail dated 25.2.2021 stating that as the mobile handset was not under warranty, the Complainant may contact with the O.P.1. It is alleged by the Complainant that the revelation made by the O.P.3 in respect of the warranty period of the mobile-set given her to understand that O.P.1 and O.P.2 had cheated her by delivering a second hand mobile-set and which is a deficiency of service. It is also averred that the packing box containing the disputed mobile shows that the mobile was manufactured in December, 2019 which appeared to be a false disclosure. Being aggrieved so, the Complainant filed this petition before this Commission for redressal of her grievance seeking a relief for an aggregating amount of Rs.1,11,100/- which include the cost of the disputed mobile-set and exchange value of the old mobile set. Hence this case.

3. O.P.1 has contested the case by filing written statement wherein they have refuted and rebutted all the charges/allegations that is being levelled against them by the Complainant. It is submitted by the O.P.1 that the Complainant had wrongly impleaded ''Amazon.com'. The entity which operates the e-commerce market-place through the web-address of www.amazon.in is Amazon Sales and Serivce Private Ltd. (here-in-after referred to as ‘ASSPL’) having its registered office at Bangalore. It is submitted by them that ASSPL is e-commerce market-place where the sellers list their products for sale and any buyer is free to choose and order any product from any independent 3rd party seller registered in the e-market place. The ASSPL does not make any influence or interference in any process of listing and executing of the sale transaction. The invoice/tax invoice for sale transactions are issued by the independent 3rd party sellers only and here the buyers directly place the order with the independent 3rd Party seller and not that the ASSPL. It is also submitted by them that they disclaim any warranties or representations in respect of quality, suitable, accuracy, performance, safety etc. It is also averred by them that the ASSPL implicitly or explicitly does not support or endorse the sale of product on the website. It is further averred by ASSPL that they are the intermediary as defined under the IT Act, 2000 and complies with all the obligations laid down for intermediaries in the said Act. Therefore, under the Act, as being an intermediary, ASSPL is not liable for the warranty representations made by the 3rd party seller on the e-commerce marketplace. It is also submitted that the O.P.2 had informed them that they demanded a job sheet/ service record from the Complainant substantiating her grievances in relation to the product indicating that the manufacturer through its authorized service centre denied the redressal of her grievances which the Complainant failed to submit. Therefore, under such indications of the averments made by them they are not liable to be prosecuted in respect of the instant complaint as the 3rd party seller is the O.P.2.

4. Despite receiving notice by the O.P. No.2, 3 & 4 they failed to appear before this Commission though they have been allowed adequate time and opportunities to do so. Hence, the proceedings of the case drawn against them as exparte.

5. The Complainant submitted her evidence-in-chief by way of affidavit. The documents submitted by her has been exhibited and marked as Exhibit-1 Series. The O.P.1 has failed to submit any examination-in-chief in respect of their contesting the case despite allowing them due opportunities for submission of the same.

6. Now, the points to be decided in this case as under:

(i)Whether the O.Ps have committed any deficiency of service and adopted any unfair trade practice against the Complainant nor not?

(ii) If so, in such case, what would be the entitlement of relief for the Complainant in respect of the amount of compensation sought for?

7. We have heard the arguments of the Complainant as well as the O.P.1 and the salient points of the arguments being made out are as under:

(i) It has been pleaded by the side of the Complainant that she has been delivered a defective mobile hand-set by the O.P.1 with reference to her purchase order No.407-3875367-8302744 placed with the O.P.1. On being popped up defects on the mobile, she requested for an after- sales service help for the disputed mobile from O.P.3. But the O.P.3, subsequently, discovered that the IMEI No- 867194036742784 (an unique identification number provided by the manufacturer for each mobile) which was allotted to the disputed mobile got activated on 29.03.2018 and, therefore, the warranty period of the disputed mobile had already been expired. In consequence to that, O.P.3 was unable execute the after-sales service request. It has also been argued that on being taken up the issue with the O.P.4 through email, the O.P. No.4 divulged the fact that under this IMEI number the mobile was earlier serviced at a service centre of O.P.4 located in Mumbai. It is also submitted that as per the intimation of the O.P.4 the mobile was earlier sold to one, namely, Sunprit Poojary and the same was serviced in the service centre of O.P.4 at Mumbai under this name. Therefore, the O.P.1 and O.P.2 had defrauded the Complainant by providing a second-hand mobile-set with reference to her purchase order for a new mobile-set placed with O.P.1.

(ii) The O.P.1 has submitted written argument which states that Amazon.in does not have any entity and exact entity which operates the e-commerce market place through the website of www.amazon.in is Amazon Seller Services Private Limited having its registered office at Bangalore. It is submitted by them that the role of the e-commerce market place is not to publicized or endorse the products of any sale rather the sellers can enlist their products with detail specifications and benefits offered on their website. The buyer has opportunity to go for choice out of the options available on the websites. The sell agreement is executed between the buyer and the 3rd party seller and ASSPL does not have any role in the purchase process. It is also argued by them that being played a role of intermediary between the buyers and the seller and in pursuance of the relevant provisions of the Information Technology Act, 2000 they are not liable for any safety, quality, guarantee etc. of any product. It is also submitted by them that the Complainant has failed to produce any job sheet/process sheet to O.P.2 substantiating her grievances in respect of the product from the after-sales service centre of the manufacturer regarding denial of redressal of her grievances by the manufacturer No.3. As a result of which the complaint petition is not tenable for refund or replacement of the disputed mobile.

8. We have heard arguments of both side and looked through and appraised the documents being relied upon by the Complainant. On appreciation of the case in entirety, we find that it is an admitted fact that the mobile set was purchased through the e-commerce website of O.P.1. It is also noted that on being surfaced defects/disorders on the mobile, the Complainant was denied the after-sales service on the mobile, as so being committed under the explicit warranty offered against the purchase of the mobile. But the most disturbing facts emerged in context of the case is that the O.P.3 made a grievous revelation that the disputed mobile-set was earlier sold to someone and got activated on 29.03.2018 and; which is prior to the date of purchase of the disputed mobile-set by the Complainant. A shocking disclosure has been made by the O.P.4 that the mobile was earlier serviced in the year, 2019 in a service centre of O.P.4 located in Mumbai.

9. It appears from the container/packing box of the disputed mobile-set that it was manufactured in the month of December, 2019. But, as per the disclosures made by O.P.3 and O.P.4, it appears that the disputed mobile was earlier sold to a customer, namely, Sunprit Pujari and the same got activated in 29.3.2018 and; at a subsequent stage the disputed mobile was serviced through a service centre of O.P.4 in Mumbai. Therefore, we have no hesitation to believe that the year and month of manufacture mentioned in the packing box is a gross misrepresentation of facts and, therefore, it is a display of misleading and misguiding information by the O.P.1 and O.P.2. This is an attempt on the part of O.P.1 and O.P.2 to sell an old used product in the guise of a new one by deliberately withholding the facts and which, according to us, is nothing but deceiving the buyer by representing falsehoods and performing a business in bad-faith. Such act is described by us as resorting to an unfair trade practice by O.P.1 and O.P.2.

10. The Complainant ran pillar to post either to get the mobile repaired or to have a replacement of the same or to get refund of the money by taking up the matter with the O.P.1, 2, 3 & 4. It appeared that the Complainant did not get any remedies or solutions towards redressal of her grievances.

11. The O.P.2 has submitted that since it is a matter between the buyer and the 3rd party seller they, being an intermediary, have no role to play in respect of any misrepresentations of facts, quality, warranty etc. of the products sold through their e-commerce marketplace and in pursuance of the relevant provisions of Information Technology Act, 2000 they are not liable for the misdeeds of the seller. But, we find that conditional immunity to intermediaries for liability of 3rd party act has been allowed under the Act. To avail the exemption liability under sub-section (1) of section 79 of the Act., an e-commerce marketplace shall have to comply with the sub-section (2) and (3) of that section. The sub-section 2(c) suggests that the intermediary shall require to exercise due diligence while discharging duties under this Act. and also to observe such other guidelines as the Central Government may prescribe in this behalf. The Consumer Protection (E-Commerce) Rules, 2020 has outlined certain guidelines in respect of liabilities of e-commerce marketplace entities. As per rule (5) (2), every e-commerce marketplace shall require sellers through an undertaking to ensure that accurate and appropriate information which directly correspond to the product or service are provided. Here, for the disputed mobile-set, we observe that misguided and misleading information have been provided through the e-commerce marketplace of O.P.1 with an ill-motive to deceive the customer for illegitimate monetary gain. Therefore, O.P.1 has failed to comply the guidelines envisaged under rule (5) (2) of the Consumer Protection (E-Commerce) Rules, 2020 and; for such default they are liable for adopting unfair trade practice. The points raised by O.P.1 regarding the failing by the Complainant to produce any job sheet/ process sheet from any after-sales service centre of the manufacturer to O.P.2 confirming the denial of redressal of her grievances, it is observed that O.P.3 and O.P.4 have, through e-mail or otherwise, intimated their inability to execute the service request of the Complainant due to expiry of guarantee period of the disputed mobile. O.P.2 despite receiving notice did fail to appear to contest the case and thus such plea does not hold good. Therefore, the pleas of O.P.1 regarding their not having any role to play in respect of any warranty and quality of any product which is sold through their e-commerce marketplace does hold no merit and thus not acceptable. 

12. We are also of the opinion that by not providing the refund or replacement for/ of the disputed mobile by the O.P. No.1, they have committed deficiency of service.

13. In view of the points expressed in the foregoing paras, we hold that the Complainant has successfully abled to prove the deficiency of service and unfair trade practice committed/ adopted by O.P.1 and O.P.2 to our satisfaction. Hence, it is ordered that the O.P.2 shall refund the price of the mobile of Rs.11,100/- to the Complainant within two months from the date of this judgment. We further order that the O.P.1 and O.P.2 shall pay a compensation of Rs.12,000/- each to the Complainant due to causing harassment, mental agony and cost to the Complainant within two months from the date of this judgment. Failing to pay within the specified time, the amounts shall carry an interest @ 9% P.A. till realization of the same in full. The Complainant is directed that on receipt of full payments, she will intimate the Commission in writing confirming such receipt of payments. The office of the Commission shall, thereafter, hand over the mobile-set with all accessories to the O.P.1 or their authorized representative by taking appropriate proof for such delivery.

14. All the points are decided accordingly. Supply copy of this judgment to the parties free of cost.  

 

Announced.

 

 

SRI R. PAL

PRESIDENT,

DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA.

 

 

 

 

 

SRI SAMIR GUPTA,

MEMBER,  

DISTRICT CONSUMER DISPUTES REDRESSAL 

COMMISSION

  WEST TRIPURA,  AGARTALA.