Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 676.
Instituted on : 02.12.2019
Decided on : 29.11.2023
ManojNandal son of Sh. Ram Kanwar, Resident of VPO Bohar, Mailing address, Room No.318, Irrigation department, Rohtak, Haryana.
..............Complainant.
Vs.
- Amazon.in through its Director/Executive Officer/Manager/Authorized person, registered office at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram(W) Banglore-560055 Karnataka India.
- Amazon.in, Branch office/Local office through its authorized person at Near Petrol Pump, Outer Sunaria Chowk, Rohtak.
- Appario Retail Private Limited,through its Director/Executive Officer/Manager/ office at Rect/Killa No. 38//8/2 min 192//22/1, 196//2/1/1, 37//15/1, 15/2, Adjacent to Starex School Village Binola, National Highway 8, Tehsil Manesar Gurugram-122143.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh.VikasPruthi Advocate for the complainant.
Shri KunalJuneja Advocate for the opposite party No.1 & 2.
Opposite party no. 3exparte.
ORDER
VIJENDER SINGH, MEMBER:
1. Brief facts of the case, as per complainant are that he placed an order to purchase a Nokia 60.1Plus mobile for a sum of Rs.10999/- vide order no.405/3323377-4557931 on dated 13.09.2019 andmade the payment online i.e. through credit card/visa payment EMI Rs.987.57 for 12 months plus interest charged by the banker and the same was delivered to the complainant vide invoice no.DEL5-2438570 dated 14.09.2019.. But the abovesaid mobile has display problem i.e. manufacturing defect and complainant reported the defect to the respondents and they confirmed replacement order vide replacement order no.408-2112863-3241126 dated 20.09.2019. But at the time of picking up the mobile and refund the amount, the particulars i.e. IMEI number of the mobile was not matched with their record hence the delivery person refused to take back the above mobile and to refund the amount. Till date the amount has not been refunded to the complainant despite his repeated requests. It is further submitted that the due to their own technical problem, the opposite parties could not pick up the mobile in question and refund was not made to the complainant. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to refund the amount of Rs.10990/- alongwith interest @ 20% p.a. from the date of purchase till final realization of the amount and also to pay compensation of Rs.30000/- for causing mental harassment and 11000/- as litigation expenses to the complainant as explained in relief clause.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party no. 1&2 intheir reply has submitted that after receipt of the product from the independent third party seller i.e.Appario Retail Private Ltd., the complainant contacted ASSPL on 16.09.2019 and raised an issue regarding the product being defective as its display was allegedly not working as per his expectation. Upon receipt of such information, ASSPL contacted the independent third party seller on behalf of the complainant. The independent third party seller investigated the grievance of the complainant and agreed to replace the product and created a replacement vide order ID 408-2112863-3241126. However, as per the information received from the third party seller, the pick up of the alleged defective product and its replacement failed as admittedly, the complainant was not available at the place of pick-up. The pick-up of the product was cancelled by the complainant. Despite of the fact that the complainant was not present on the date of the return pick up for replacement, the independent third party seller agreed to accept the return of the product and to issue a refund order against it as a goodwill gesture. However, when the delivery executive of the third party seller, came to pick up the product again, the complainant tried to return a different phone from the one he had purchased, as the IMEI number of the phone did not match with the product which he had purchased. Therefore, the return pick up by independent third party seller also failed. It is further submitted that ASSPLis neither the seller nor the manufacturer and it merely operates an e-commerce marketplace where independent third party sellers similar to Apario Retail Private Limited list their products for sale. It was the liability of the seller to replace/issue refund against the product that was sold and delivered to the complainant by the independent third party seller. Therefore, the answering opposite party cannot be made liable for any act or omission attributable to the independent third party seller.Therefore the instant complaint is liable to be dismissed against the opposite parties.
3. Notice sent to opposite party No.3 through registered post received back with the report of refusal. As such opposite party No.3 was proceeded against exparte vide order dated 07.04.2021 of this Commission.
4. Ld. Counsel for the complainant in his evidence has tendered affidavits Ex.CW1/, documents Ex.C1 to Ex.C16 and has closed his evidence on dated 05.05.2022. Ld. counsel for the opposite party no.1& 2 has tendered affidavit Ex.RW1/A, document Ex.R1and has closed his evidence on 05.05.2022.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that the complainant had purchased the mobile in question on 14.09.2019 from the opposite party No.3 for a sum of Rs.10999/- as is proved from the invoice Ex.C2. As per copies of messages Ex.C5 to Ex.C15, it is submitted by the opposite party No.1 & 2 that the refund will be processed after receiving the item. All the messages were sent by the opposite party No.1. Hence it was the prime duty of the amazon to pick up the article from the complainant and to return the amount or replace the product as requested by the complainant. It has been admitted in preliminary objection of their reply by opposite party No.1 & 2 that as per the information received from the independent third party seller, the pickup of alleged defective product and its replacement failed as the complainant was not available at the place of pickup. Hence the perusal of written statement shows that the product was defective and the replacement was initiated but not completed. Once the opposite party no.1 admitted the delivery of damaged product, and assured the complainant to refund the amount of product after pick-up the same, it was the duty of the opposite party No.1 & 2 to fulfill their promises and to refund the amount of product. But the opposite party No.1& 2 failed to keep their words and neither replaced the product nor refunded the amount of mobile phone to the complainant, which shows that there is deficiency in service on the part of opposite party no.1& 2. As such opposite party no.1& 2 are liable to refund the price of mobile set of Rs.10999/- to the complainant.
7. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.1& 2 to refund the price of mobile set Rs.10999/-( Rupees ten thousand nine hundred and ninety nineonly) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.02.12.2019 till its realization and shall also pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision.However complainant is directed to hand over the mobile in question to the opposite party no.1 & 2 at the time of making payment by the opposite parties.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
29.11.2023.
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Nagender Singh Kadian, President
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TriptiPannu, Member.
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Vijender Singh, Member
