IN THECONSUMER  DISPUTES  REDRESSAL  COMMISSION,  KOLLAM

DATED THIS THE    23^rdDAY OF SEPTEMBER 2021

Present: –      Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

                     Smt.S.Sandhya   Rani. Bsc, LLB ,Member

CC.No.93/2018

Sujith M.S.,

MadhavaVilasom,

Karavoor P.O.,

Piravanthoor,

Kollam 689696.                                                                                :           Complainant           

V/S

1. Amazon Online Shopping,

Amazone,Brigade Gateway,

8^th Floor, 26/1, Dr.Rajkumar road,

Malleswaram west, Banglore

560055, Karnataka.

(By Adv.AjeeRajappan)                                                                 :          Opposite parties

2. Proprietor of RedmiMi mobile Company

Xiaomi Technology India Pvt.Ltd.,

5^th Floor, Delta block, Embassy Tech Square,

Kadubeesanahalli, Marathahalli, Outer Ringroad,

Bengaluru, Karnataka 560 103.

(By Adv.AjeeRajappan)

3. Redmi Mobile Service Centre,

MI Service Center,

M/s Gee Cell, MK Building,

Vadayattukotta, Mill Road, Kollam 691001

ORDER

Smt.Sandhya Rani, B.SC, LLB, Member

This is a case based on a consumer complaint filed U/s 12 of the Consumer Protection Act 1986.

The averments in the complaint in short are as follows:-

          On 24.03.2018 the complainant has made an order for RedmiMi Y1 Lite mobile phone through Amazon Online Shopping and he has received the same on 26.03.2018.  But on 16.04.2018 that is hardly 20 days after its purchase the battery of the phone go off with a loud noise and that was collapsed completely.  When the complainant contacted with Amazon Shopping site on the next day they replied that the replacement facility provided by them limited for a period of 10 days since itspurchase and they have directed him to get replace the phone by contacting directlywithRedmicompany.  Accordingly he has made a complaint with the customer care service centre of Redmi through phone.  But the complainant didn’t get any response from them.  Thereafter the complainant entrusted the phone with Redmi service centre at Chinnakkada, Kollam but the service centre have returned the phone not only without repairing but also showering abusive words upon him , which caused grave mental agony apart from financial loss.  The above said act experienced from the opposite parties amount to deficiency in service and unfair trade practice.  In the circumstancesthe complainant is entitled to get Rs.6,999/- as value of the mobile phone and Rs.25,000/- as compensation for mental agony, financial loss as well as time consumption caused to the complainant.  Hence the complaint.

          1^st opposite party contended that Amazon Seller Services Pvt.Ltd. (ASSPL) is acting as a facilitator providing online marketplaces where independent third party sellers list their product for sale and they do not directly involved in the sale transaction between the customer and seller.  Therefore the sellers themselves are responsible for their products on the website.  In other words 1^st opposite party is acting only as intermediary as per the IT Act.  Hence they are exempted from liability for the materials hosted on their portal.  It is further contended that the mall/shopping complex management are neither responsible nor liable for the acts or omissions of the independent third party sellers.  Another contention raised by the 1^st opposite party is that the complainant has purchased the alleged phone from the seller named Rocket Kommerce LLP who has issued invoice against him and 1^st opposite party has no claim over the said price accepted by the Rocket Kommerce LLP.  Accordingly the complainant would never become a consumer of 1^st opposite party.  This complaint is filed against 1^st opposite party on the misconception about the role, authority, function and control of 1st opposite party.  The alleged defects found in the mobile phone are manufacturing defects hence it is to be dealt with the manufacturer of the product that the 1^st opposite party is wrongly impleaded in the party array as the 1^st opposite party is only a facilitator where buyers and sellers meet independently

without any intervention of 1^st opposite party.  1^st opposite party again contended thatthe contract of the sale and purchase of the items traded over at the Website is strictly a bipartite contract between a registered seller and the customer and both the parties are bound by the terms of the “Conditions of Use”.  In “Conditions of Use” sited in Amazon Website clearly reveals that Amazon haveno obligation or liabilities in respect of any transactions on the Website.  It is further contended that though the Website is managed and operated by the 1^st opposite party the transaction is between the seller and the buyer is governed by “Conditions of Use” enumerated on the Website of 1^st opposite party and after sale services are not provided by the 1^st opposite party.  Another contention raised by them is that the Courts at Delhi alonehave the jurisdiction to try this complaint.  Again contended that in accordance with the current FDI policy issued by the Department of Industrial Policy and Promotion (DIPP) 1^st opposite party follows a market place based model of e-commerce which acts as a neutral platform to allow sellers interacted with their customers without exercising ownership over any goods or indulging in the manufacture or dealing in any goods and they are not responsible for the warranty/guaranty of the goods being sold by such sellers.  It is further submitted that as per Information Technology Act 2000 and the Information Technology Intermediary (guidelines) Rules 2011 the  1^st opposite party is entitled to claim exemption from their liability as an intermediary in respect of the content available on their e-commerce portal.  1^st opposite party is neither a necessary nor a proper party as it has nothing to do with the quality of the product but it is only a shopping site and the manufacture is responsible for the product.  No liability can be imposedon the 1^st opposite party as there is no documentary evidence to prove the seller purchaser relationship between the complainant and ASSPL.   There is no cause of action or allegation against 1^st opposite party to suffice to make out a case against them and the complainant is not entitled to any relief from 1^st opposite party.  Hence the complaint may be dismissed or in the alternative delete 1^st opposite party from the array of parties and award exemplary cost in favour of 1^st opposite party.

          2^nd opposite party is a company incorporated under the Companies Act 2013 engaged in the marketing sale and service interalia of mobile phones in India under the brands “Mi” and “Xioami”.  Accor ding to the 2^nd opposite party the complaint is false frivolous and concocted and all the contentions raised against 2^nd opposite party are specifically and vehemently denied.  According to 2^nd opposite party the complainant is filed with intend to unnecessarily harass to the 2^nd opposite party.

          It is further contended that when the complainant approached the authorized service centre of the 2^nd opposite party with issues related to the subject matter the mobile service engineer duly recorded the issue in the service job sheet and requested him to wait for the examination and review of the product at their authorized service centre and the technicians of the authorized service centre ascertained that the product’s appeared bend and deformed batter cover is damaged LCD is broken and the battery is also burned.  Therefore this is a case of customer induced damage and they have requested the complainant to pay repair cost since any customer induced damages are not covered under standard warranty terms and conditions applicable to the product.  But when the complainant refused to pay the repair cost the product was returned to the complainant without repair and the same can be ascertained from Annexure D (service record).  2^nd opposite party would further contend that the job sheet produced establishes that the product was not working as a result of damage induced by the complainant and therefore the warranty terms are automatically invalidated and as a result the complainant will have to bear the expense of repair  that the product has no manufacturing defect that the onus to prove manufacturing defect lies on the complainant as it is a trite law that the one who makes an allegation then he has to prove the allegation.  There is no expert evidence produced by the complainant to prove the mobile is having manufacturing defect.  Another contention raised by the 2^nd opposite party that if the complainant had paid the estimatecost of repairs to the authorized service centre of 2^nd opposite party then the mobile phone would have been repaired in accordance with the prescribed replacement and the applicable warranty exclusions.  Again contented that the reason for payment to

repair is that here the damage is customer induced damage which is specifically excludes from the applicable warranty terms and conditions.  Hence in this case the complainant is not entitled to any remedy in connection with defects in the product which is limited to repair or replacement or refund associated with the entire product.  The 2^nd opposite party further prays 1) to dismiss the complaint and to award costs of the litigation to the 2^nd opposite party.  2) Consider the above submissions and accompanying affidavit by way of evidence on record and to treat said evidence as evidence on record on behalf of 2^nd opposite party.  3) Direct the complainant to approach the authorized service centre to take the product repaired according to the applicable warranty.  4) Any other relief which this Hon’ble Forum may deem fit may also be granted to the 2^nd opposite party against the complainant.

In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service on the part of opposite parties 1 to 3?
2. Whether the damage sustained to the mobile phone is customer induced one?
3. Whether the complainant is entitled to get compensation from opposite parties 1 to 3?
4. Reliefs and costs?

When the case was taken up for recording evidence opposite parties 1 to 3have not co-operated with trial and remain exparte.  Complainant filed proof affidavit and got marked Ext.P1 to P3 documents.

Point No. 1 to 3

For avoiding repetition of discussion of materials these 2 points are considered together. The complainant filed chief affidavit by reiterating the averments in the complaint and got marked Ext.P1 to P3 documents.  Ext.P1 is the service order dated 24.04.2018 issued by Ms GEE CELL, MK building(3^rd opposite party).  Ext.P2 tax invoice /bill of supply /cash memo dated 24.03.2018 issued by Amazon for Rocket Kommerce LLP for Rs.6999/-.  Ext.P3 is a certificate issued by New Mobiz Mobiles, RO Junction, Anchal evidencing that Redmi–Y1 Lite-IN-2+16G-Golden)  is not repairable because the phone is totally damaged.

From Ext.P2 cash memo dated 24.03.2018 it is evident that the complainant has purchased a Redmi Y1 Lite mobile phone for Rs.6,999/- from the 1^st opposite party Amazon.in for Rocket Kommerce LLP and hardly 20 days after its purchase the battery of the phone went off with loud noise and the phone got collapsed completely.  It is clear from the available materials that when the complainant contacted with 1^st opposite party they replied that their replacement facility is limited for a period of 10 days.  Therefore the complainant contacted with the 3^rdopposite party customer care service centre of Redmi through phone but they didn’t respond.  Though the complainant has approached 3^rd opposite party Redmi mobile service centre at Kadappakkada several time  buthe didn’t get it repaired.  The specific allegation of the complainant is that instead of repairing or replacing the damaged phone the 3^rd opposite party returned him by showering abusive words that caused mental agony to the complainant apart from financial loss.

In view of Ext.P2 cash invoice it is evident that it is issued by Amazon.in for Rocket Kommerce LLP that the sale proceed is received by the company Amazon.in in their label through their website for and on behalf of Rocket Kommerce LLP.  In the version filed by 1^st opposite party they have admitted that they are providing market place ecommerce neutral platform through their website Amazon.in where different entrepreneurs sell their different products.  Moreover all details regarding the products like cash invoice, name and address of service centres, customer care service centre etc. are available in the1^st opposite party website.  In short 1^st opposite party possess overall control upon the products in their site as that of distributor is having upon the product.

It is pertinent to note that 1^st opposite party have not stated anywhere in their lengthy objections that they are not getting monitory benefit from the sale proceeds carried out through their platform Amazon.in.  The 1^st opposite party has not denied

having sold the disputed mobile phone to the complainant and they have collected the sale proceeds through their website of Amazon.in.  In short by providing sale proceeds to Rocket Kommerce LLP in their website they are acting the role of distributors of the 2^ndopposite party manufacturing company.  Though the 1^st opposite party categorically stated that the total collapse of the phone is due to manufacturing defect, selling a product having manufacturing defect through website of Amazon.in is also an unfair trade practice for which they are also liable.

The main contention raised by 2^nd opposite party isthat  the damages caused to the mobile phone is purely customer induced damage which is specifically excluded from the applicable warranty terms and conditions.  But that fact is not recorded in the service order dated 24.04.2018 issued by the 3^rd opposite party immediately after the mobile phone damaged.  It is true that in the annexure D service record it is stated that battery mal-function caused as CID(Customer induced damage).  The above document has been produced by the 2^nd opposite party along with version but not got marked in Evidence.  In the absence of any such endorsement in Ext.P1 document the endorsement in annexure D service record cannot be believed and relied upon.  Battery of a mobile is kept inside the phone.  There is no chance of causing any damage to the battery by the customer.  It is true that the 2^nd opposite party has filed a petition before this Forum along with written version praying to examine the defective mobile phone.  But copy of that petition was not served on the complainant no any I.A. number was assigned to the petition.  In the circumstances the said petition is deemed as not pressed.

It is a facts that the alleged mobile phone was purchased by the complainant for Rs.6,999/- and the same was collapsed completely with a loud noise hardly within 20 days of its purchase. The opposite parties have totally denied the said allegations.  If the 2^nd opposite party is having a case that the said  collapse was customer induced onethe burden of proving the same is upon the 2^nd opposite party.  In the above circumstances the examination of the collapsed phone would have been initiated by the 2^nd opposite party but here they have failed to do so.  Therefore it is crystal clear that the collapse of the alleged phone hardly 20 days of its purchased is purely due to its manufacturing defect as alleged in the complaint.

It is pertinent to note that the cost of phone is Rs.6,999/- but the repairing charges demanded by the 3^rd opposite party authorised service centre is Rs.6,910/- which is almost equivalent to the value of a new phone .  Demanding charges almost equivalent to it value within 20 days of its purchase itself is an unfair trade practice.

In view of the materials including Annexure D warranty statement produced by the 2^nd opposite party it can be concluded that as the mobile is collapsed within the warranty period the 3^rd opposite party who is the authorized service centre is legally bound to repair the same free of cost and if it is not possible, the damaged mobile phone has to be replaced through the 2^nd opposite party manufacturing company.  At any rate the 3^rd opposite party is not entitled to demanded Rs.6,910/- by way of repair charges .  The above act of the 3^rd opposite party definitely would amount to deficiency in service and unfair trade practice on it part.  By providing the website of Amazon.in as a market place model ecommerce neutral platform for large number of manufacturers (entrepreneurs)the1^st opposite party Amazon have acted as promoters of substandard mobile phone. The total collapse of the phone within 3 weeks of its purchase itself would indicate that their exist manufacturing defect on it.  In the circumstances there is no need of any other cogent and credible evidence or expert opinion to prove that the phone was having inherent manufacturing defect. In view of the materials on record we are of the view that there is deficiency in service and unfair trade practice on the part of opposite parties 1 to 3 in the deal and thereby the complainant has sustained mental agony apart from financial loss.  Hence the complainant is entitled to get a defect free new mobile phone or its value as well as the compensation for mental agony.  The points answered accordingly.

Point No.4

          In the result the complaint stands allowed in the following terms.

1. The 2^nd opposite party manufacturing company shall replace the damaged phone with a brand new one of the same specifications or to return Rs.6,999/- being the value of the said mobile phone to the complainant.
2. Opposite parties 1 to 3 are directed to pay Rs.3,000/- eachas compensation for deficiency in service and unfair trade practice committed by them in the deal.
3. Opposite parties 1 to 3 are directed to pay Rs.2,000/-each as costs of the proceedings to the complainant.
4. If opposite parties No. 1 to 3 fails to comply with the above directions within 45 days from the date of receipt of a copy this order the complainant is at liberty to recover the amount awarded against each opposite party along with interest at the rate of 9 % per annum except for costs from the date of complaint till realization.

Dictated to the Confidential Assistant Smt. Minimol. S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  23^rd day of  September2021.

S.Sandhya Rani:Sd/-

E.M.MuhammedIbrahim:Sd/-

Forwarded/By Order

Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1             : service order dated 24.04.2018 issued by Ms GEE CELL, MK building

Ext.P2             : tax invoice /bill of supply /cash memo dated 24.03.2018

Ext.P3             : certificate issued by New Mobiz Mobiles, RO Junction, Anchal

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil