BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.410 of 2021
Date of Instt. 13.12.2021
Date of Decision: 30.07.2024
Rajinder Prashad, aged about 34 Years s/o Ashwani Kumar, resident of 162, Raj Nagar, Jalandhar City, Punjab.
..........Complainant
Versus
1. Amazon, through Managing Director/Director/Authorized Signatory, 2nd Floor, Safina Towers Opposite J.P. Techno Park No.3, Ali Asker Road Bangalore-560052, Brigade Gateway 6th Floor 26/1, Dr. Raj Kumar Road, 560055; Malleshwaram (W) Bangalore-560055.
2. Divine India, 5/2, K-Square Industrial and Logistics Park, ear Pushkar Mela, Off. National Highway-3, Village Kurund, Taluka Bhiwandi Bhiwandi, Maharashtra, 421302, India through its Manager;
3. Samsung India Electronics Pvt. Ltd., Head Office 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector-43, DLF PH-V, Gurgaon Haryana-122202, through, its Managing Director/Director/Authorized Representative.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: None for the Complainant.
None for OP No.1.
Complaint qua OP No.2 dismissed.
Sh. Vishal Chaudhary, Adv. Counsel for OP No.3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant had purchased Samsung Galaxy Z-Flip Mobile Set from OP No.1 through online on 17.07.2021 for a sum of Rs.67,630/- with the guarantee regarding the set and its parts. The set has been manufactured and sold by OP No.3. On 18.08.2021, the phone screen of the mobile set damaged automatically. The complainant immediately gave a letter through email to the OP No.3 in this respect and in response to the said letter, the OP No.3 replied that the complaint of the complainant has been given to Senior Authority. But the complainant did not receive any response from the OPs. Again the complainant emailed a letter dated 05.10.2021, but to no effect. The complainant received a reply that the OP No.3 has been taking care of the complaint and the concerned team will contact the complainant at the earliest. Thereafter, even no response was received by the complainant and again the complainant wrote many emails to the OPs and receiving the replied on email, but no action was taken by the OPs. The display of the mobile set has broken automatically and could not survive for more than one month. The complainant got issued a legal notice to the OPs, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the mobile set or to return back the amount of mobile i.e. Rs.67,630/-. Further, OPs be directed to pay a compensation of Rs.1,00,000/- for causing mental tension and harassment to the complainant and Rs.50,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that ASSPL owns and operates the e-commerce market place, therefore, it is clear that the complainant has filed the instant complaint without verifying the facts and exercising reasonable due diligence and therefore, has wrongly impleaded the OP No.1 as a party. It is further averred that against the invoice, the payment towards the product was made by the complainant directly to the independent third party seller i.e. M/s Divine/OP No.2 in the nodal account in accordance with the RBI Directors. It is further averred that the OP No.1 has been wrongfully arrayed as a party to the present proceedings. The complainant has no cause of action against OP No.1 and the grievances of the complainant, if any, are primarily against the OP No.2 and OP No.3. It is further averred that the user (s) of e-commerce marketplace are bound by the conditions of Use enumerated on Amazon Platform which clearly state that the contract of sale is a bipartite contract between the buyer and the seller only and the OP No.1 is not a party to it. The OP No.1 is to make the E-Commerce Marketplace user friendly for the independent Third Party sellers to list necessary details of the products and for the buyers for searching and browsing through the said products. On merits, it is admitted that he has purchased the mobile Samsung Galaxy Z-Flip, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. On the other hand, correct address of OP No.2 not filed by the complainant after availing number of opportunities and ultimately, complaint qua OP No.2 was dismissed u/O 9 Rule 2 CPC.
4. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is bad for mis-joinder of parties. The OP No.3 has unnecessarily been impleaded as party to the present complaint. No cause of action arose to complainant to file the present complaint against the answering OP. The complainant has mishandled and negligently used the handset due to which the handset got damaged. It is further averred that the complaint has been filed with mischievous intentions thereby enabling the complainant to enrich him at the cost of answering OP by filing frivolous claim. The complainant is not entitled for any relief from the Forum as he has concealed the true and material fact. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
5. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
6. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
7. We have heard the learned counsel for the OP No.3 only as none has appeared on behalf of the complainant as well as OP No.1 and complaint qua OP No.2 already dismissed and have also gone through the case file very minutely.
8. The complainant has proved on record the invoice Ex.C-1 showing that he has purchased the mobile Samsung Galaxy Z-Flip from the OP No.3 through OP No.1 on 17.07.2021. He has alleged that a guarantee was given for the mobile phone and its parts by the OP. On 18.08.2021 automatically the phone screen of the mobile set got damaged and the information was sent to the OP No.3 through email in this respect and the complainant was informed that the complaint has been sent to the senior authority. He has sent emails again to the OP on 05.10.2021, but the OP never gave any reply to the complainant. The complainant has alleged that the defective piece was given to the complainant. As per the allegations, he purchased the mobile on 17.07.2021 and within a month i.e. 18.08.2021, the same got damaged. As per allegations, the screen of the mobile set got damaged automatically. The OP No.1 is intermediary. The phone was purchased from OP No.2 through OP No.1. No deficiency in service qua OP No.1 has been alleged nor proved.
9. The OP No.3 on the other hand alleged that there is no manufacturing defect in the phone. The damage has been caused to the mobile phone as there was a physical damage. It has been alleged that the complainant immediately did not get the phone checked from the service centre rather got checked from the local service centre on 28.08.2021 and he was informed that it was a case of physical damage and there is no manufacturing defect. Since, there was a physical damage, therefore it was not covered under any warranty.
10. The complainant has proved on record the legal notice Ex.C-5. The OP has also produced on record the bill Ex.OP-1/3. The OP No.3 has proved on record the service request Ex.OP3/1. Perusal of Ex.OP3/1 shows that the complainant approached the service centre on 28.08.2021. The fault found was display damage. As per conditions, if there is a physical damage, the same is not covered under the warranty. The OP No.3 has also produced on record the photographs showing the condition of the mobile set. The complainant has not produced on record any document to show that there was a manufacturing defect in the mobile. He has not produced on record any report of expert to show that this damage of the screen or display was automatically or it was not due to physical damage as alleged. Nothing has been proved by the complainant. There are mere allegations that it got damaged automatically. The complainant has failed to prove any deficiency in service and accordingly, the counsel for the complainant is without merits and thus, the same is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
30.07.2024 Member Member President
