PER:

Nidhi Verma, Member;

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11 & 12 against the opposite parties on the allegations that the complainant purchased one Lenovo Zuk Z1 (Space Grey Cyanogen OS) mobile phone for personal use through Amazon.in vide invoice No. KA-BLRS-167791461-710641 order dated 17.10.2016 and received through courier on dated 26.10.2016 on the payment of Rs. 11,039/- to the opposite party No. 1. But after it use it created trouble like lost the network. The complainant approached to the opposite party No. 3 office on dated 9.11.2016. The opposite party upgraded the software of the mobile and handed over to the complainant. After receiving the mobile phone the complainant checked it again and facing the problem in the hand set like heating and lost the network. The complainant again approached the office of opposite party No. 3 on dated 14.12.2016 that the opposite party No. 3 engineer checked the hand set and told to the complainant to change the hardware part like mother board,  which is not working  On dated 14.12.2016 the complainant deposited the hand set to the office of Opposite party No. 3 and thereafter the complainant received the hand set on 22.12.2016 after replace the mother board/ PCBA because it cannot repair. After receiving the hand set complainant again used the hand set in the month of September 2017 and complainant again faced problem in hand set heating. After it complainant again approached the opposite party No. 1 and write number of mails to the opposite party No. 1 on different dates i.e. 18.9.2017, 21.9.2017 and 3.10.2017 and visited the office of Opposite Party No. 3 on 3.10.2017 and deposited the hand set to the opposite party no. 3 office after checked the mobile in working condition and Engineer of the opposite party No. 3 again registered complaint like software update and finger print scanner and touch is not working. After that, the opposite party not removed the defect in the hand set and returned the same to the complainant on 4.10.2017. The complainant has prayed that the opposite party may kindly be directed to refund Rs. 11,039/- or to replace the set with new one and to pay compensation of Rs. 20,000/- and litigation expenses for Rs. 5,000/-.   

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by inter-alia pleadings that the opposite party No. 1 neither sells nor offers to sell any products and merely provides an online mark at place where independent third party sellers can list their products for sale. The sellers themselves (not the OP No.1) are responsible for their respective listings and products on the website. The opposite party No. 1 is neither responsible for the products that are listed on the Website by various third party sellers, nor does it intervene or influence any customers in any manner. The opposite party No. 1 is not involved in the sale transaction between the customer and seller. The conditions relating to the customer’s use of the Website (as expressly available on the website) and specifically agreed by customers state that the opposite party No. 1 is only a facilitator and cannot be a party to control in any manner any sale transaction on the Website. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller. The opposite party No.1 is an intermediary as per the Information Technology Act, 2000 and complies with all the obligations laid down for intermediaries in the Information Technology and thus is entitled to an exemption from liability for the information/ material hosted on their portal. The transaction is akin to the complainant/buyer having made a purchase from an independent third party seller from a vital mall/ shopping complex, the seller/ manufacturer having manufactured/sold the merchandise are liable for the respective products to the total exclusion of the mall/ shopping complex management. The mall/ shopping complex management are neither responsible nor liable for the acts/ omissions of the independent third party sellers who are themselves responsible and liable for their independent acts/ omissions. The complainant does not fall within the definition of Consumer Under the Act.  The complainant has not bought any goods from the opposite party No.1 nor has the complainant  paid any amount/ consideration to the opposite party No. 1 for the purchased product. The goods have been bought by the complainant from an independent third party seller selling its products on the Website operated by opposite party No. 1. Accordingly, the complainant does not fall within the definition of consumer vis a vis the opposite party No. 1. The opposite party No. 1 is merely an online marketplace where independent third party sellers have listed their products for sale. The opposite party No. 1 is neither a necessary nor a proper party in the complaint. The complaint is liable to be dismissed due to mis joinder of parties. The deficiency/ defects alleged in the present complaint cannot be attributed to the opposite party No.1 by any means whatsoever. There is no occasion for the complainant to approach this commission seeking Redressal of his grievances against the opposite party No. 1. The opposite party No. 1 is not involved in the transaction between the complainant and the seller. The complainant has explicitly, by virtue of his use of website, agreed to be bound by the terms contained in the ‘conditions of Use’.  The sellers in the instant case is Green Mobile (“Seller”)  and the same has not been made a party in the instant complaint. The opposite party No. 1 is not involved in the contract of sale between the complainant and the seller. The complaint shall be dismissed on this account alone. The present complaint does not raise any consumer dispute as defined under the Act, and therefore the same is liable to be dismissed. The complainant is not a consumer of opposite party No. 1. The subject matter of the present complaint is restricted to the alleged manufacturing defects in one for Lenovo Zuk Z1(Space Grey, Cyanogen OS) (“Product”) purchased by the complainant from the seller on the Website of the Opposite party N. 1 vide order ID #171-3159537-2621150 on 17.10.2016. Though the Website is managed and operated by the opposite party No. 1, but the transaction is between the seller and buyer is governed by ‘Conditions of Use’ enumerated on the Website of the opposite party No. 1. This commission lacks territorial jurisdiction. The opposite party No. 1 has not its registered or corporate office within the jurisdiction of this commission nor does it have any branch office for doing business. it is clearly deduced that the parties have vested exclusive jurisdiction to this Court at Delhi and as per terms and conditions, the courts at Delhi shall alone have the jurisdiction to try this complaint. The complainant has not approached this commission with clean hands and has suppressed material facts, just to misguide this commission. The complainant placed an order for the product on 17.10.2016 and the same was delivered to the complainant. The complainant never approached the Customer Service team of the opposite party No. 1 regarding the issues with the product. The instant case clearly pertains to manufacturing defects and the same can only be rectified either by the manufacturer or the seller and no liability can be fastened on the opposite party No. 1 whose role is limited to the facilitator. The opposite party No. 1 has nothing to do with the complaint but it has been impleaded as a part to the complaint. There is no privity of contract between the opposite party No. 1 and the complainant. The opposite party No. 1 has been granted permission to conduct business as a marketplace based model of e-commerce specifically stipulate, in schedule 1 at entry 16.2.3 to the Regulation. The opposite party no. 1 is not obliged to police or monitor content in their marketplace and cannot be held liable for any third party date, information etc. hosted in their market place.  The opposite party No. 1 complies with all the obligations that have been imposed on an intermediary by the IT Act and IT Rules framed there under and is thus entitled to claim exemption from liability as an intermediary in respect of the content available on their e-commerce portal.  The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.

4        Notice was issued to the opposite parties No.2 and 3 and they were duly served but they opted not to come forward to contest the complaint and consequently, the opposite party No. 2 and 3 was proceeded against ex-parte. 

5        To prove his case, Ld. counsel for the complainant has placed on record affidavit of complainant Ex. C-1, copy of e mail dated 18.9.2017 Ex. C-2, copy of invoice Ex. C-3, copy of the EMI No. Ex. C-4, copy of the customer information slips Ex. C-5 and C-6 and closed the evidence. Ld. counsel for the opposite party No. 1 tendered in evidence affidavit of Rahul Sundaram Ex. OP1/1, copy of letter Ex. OP1/2, copy of the resolution Ex. OP1/3, copy of the condition of use Ex. OP1/4, copy of the notice and procedure Ex. OP1/5, copy of amazon software terms Ex. OP1/6 and closed the evidence.

6        We have heard the Ld. counsel for the complainant, opposite party No. 1 and have gone through the record on the file.

7        In the present complaint, the complainant purchased Lenovo Zuk Z1(Space Grey Cyanogen OS) mobile phone for personal use through Amazon vide invoice no KA-BLRS-167791461-710641 order dated 17 Oct, 2016 and received through courier on dated 26 Oct 2016 on the payment of Rs 11,039/- to the OP No 1, but after it use it created trouble like lost the network . The complainant approached to the OP No 3 office on dated 09 Nov, 2016 and the OP No 3 upgraded the software of the mobile and handed over to the complainant. After receiving the mobile phone complainant again facing the problem in the handset like heating and lost the network, complainant again approached the office of the OP No 3 on dated 14 Dec, 2016  and handed over the hand set to the office of the OP No 3 and thereafter complainant received the hand set on dated 22 Dec, 2016 after replaced the mother board/PCBA because it cannot be repaired. Later in the month of Sep 2017 complainant again facing the problem of heating in hand set. After that complainant approached the OP No 1 and wrote numbers of mails to the OP No 1 different dates like 18.9.2017, 21.9.2017 and 3.10.2017 and visited the office of OP No 3 on dated 3.10.2017 (attached customer information slip as Annexure C-6) and deposited the hand set to the OP No 3 office, The engineer of the OP No 3 registered complaint like software update and finger print scanner and touch is not working. After that OP not removed the defect in the hand set and returned the same to the complainant on dated 4.10.2017. OP No. 1 stated in their written version that the complainant has wrongly impleaded ‘Amazon’ as OP No 1 to the instant complaint. The OP No 1 neither sells nor offers to sell any products and merely provides online marketplace where independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective listings and products on the website. The OP No 1 is not involved in the sale transaction between the customer and seller. The conditions relating to the customer’s use of the website and specifically agreed by the customers state that the OP 1 is only a facilitator and cannot be a party to control in any manner for any sale transaction on the website. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller. It has been held by the Hon’ble State Consumer Disputes Redressal Commission in matter of Vinay Narain Vs LG Electronics India Pvt. Ltd. & Ors case No. 270/2010 decided on 21.5.2015 had held that “the OP-2 is neither a necessary nor a proper party as it has nothing to do with the quality of the product. It is only a shopping site and the manufacturer is responsible for the product.  The Hon’ble High Court of Karnataka in case titled as Flipkart Internet Private Vs State of Kerla on 7 January, 2013 has dealt with the issue of Online marketplace and has stated that the functions performed by the marketplace model are covered under definition of service provider and do not amount to transaction of sale. In the cited matter, the OP NO. 1 was rediff.com India Ltd. an online intermediary as OP-1(ASSPL) in the present matter. It is further added that the opposite party number 1 neither  has the knowledge nor the facility to ascertain if the alleged defects in the product are due to manufacturing flaws or customer abuse and it is only the manufacturer and the service centre of the manufacturer who can resolve any such alleged defects with the product. The warranty is provided by the manufacturer, subject to the warranty terms and conditions and the opposite party one has no role to play in the warranty terms and conditions and the same is clearly enumerated under clause 13 of conditions of use -Disclaimer (Ex op1/4). The same is evident from the judgments which are reproduced below :-

          The Learned DLF-Jind in its Judgment dated 6.12.2016 passed in complaint case No. 51/2016 Surendra Kumar Vs Motorola House and ors. has held that in case of manufacturing defect, the manufacturer and the service center are liable to rectify the manufacturing defects.  The Learned DCF-Vadodara in complaint case No. 147/2016 Miteshkumar D. Patel Vs Amazon India & Ors. in its Judgment dated 11.5.2017 has been pleased to dismiss the complaint as opposite party No. 1 i.e. ASSPL and has held that OP-1 i.e. ASSPL is merely a Web service provider and has not sold any item to the complainant. 

8        We have heard the Ld. Counsels  and have gone through the documents on record . The OP No 1 ASSPL merely provides an online marketplace and is not involved in the after sales Services in relation to do any of the product listed on its website. Therefore there is no deficiency in service or negligence on the part of the opposite party number 1.

The learned DCDRF-Surat in complaint case NO. 675 of 2016 Karan Mukesh Gopalani Vs Amazon India and Ors. in its Judgment has held that “Now, coming to the question of opposite party No. 1,  it can be said that opponent No. 1 is neither a manufacturer nor a trader. He has simply dispatched the mobile to the complainant. No doubt, he had received the money. But on the invoice, it is stated that the opposite party No. 4 i.e. Green Mobiles has sold the mobile to the Opponent No. 4 i.e. Green Mobiles has sold the mobile to the Opposite party No. 1(typo error in the order-should be complainant) Thus, we are of the view that the opponent No. 1 cannot be made liable for any compensation. The opponent Nos. 3 and 4 are liable for defective mobile and also the opponent No. 3 who has not repaired the mobile to the satisfaction of the complainant. Thus it is necessary to direct the opponent Nos. 3 and 4 to redress the grievance of the complainant. Herein, Opponent No. 1 was ASSPL i.e. opposite party No. 1 in the present case.

9        We are of the consider view that the OP NO 2 as an manufacturer and OP No 3 as a Lenovo service centre are the best person to explain the present case whether the complainant visited the service centre on dated 09/11/2016 , what problem complainant facing in hand set and so on  or not , but they preferred to proceed Ex -Parte’s despite due service through registered post . Now question arises here that if the complainant faced trouble in using hand set after a month and approached the OP No 3 office on dated 09/11/2016 then he Should provide some evidence like customer information slip as he provided the same when he approached the OP No 3 after almost 11 months and 8 days (Annexure Ex.C6) . Further complainant submitted (Annexure Ex C-5) as the copy of the customer information slip but same document is not readable. However complainant approached the OP No 1 and mailed on dated 18/09/2017 almost after 11months but never approached or logged any complaint regarding any defect or trouble when he earlier faced the trouble in using hand set after a month .

10      After going through the documents on record we are of the consider view that the complainant used the hand set for almost 11months and 8 days and then approached the Amazon regarding defect and trouble in using hand set . It is pertinent to mention here that the complainant faced the same problem after the one month of the purchase of the hand set but did not follow up with the O.Ps  for the replacement or repair of the hand set but after using the handset for almost 11 months and 8 days (just some days left for the warranty period) approached the O.Ps , we consider the complainant allegations are completely misplaced and unfounded and do not constitute a valid cause of action . Thus, complainant is not entitled to any relief, whatsoever and is not entitled to claim and recover anything from the OPs. Consequently, the present complaint is dismissed. The parties are left to bear their own costs. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

15.09.2022