Order dictated by:
Sh.Anoop Sharma, Presiding Member
- Kanwar Jolly,complainant has brought the instant complaint under section 11,12,13 & 14 of the Consumer Protection Act, 1986 on the allegations that complainant after seeing advertisement through internet on the website of opposite party No.3 had placed an order for the purchase of Mobile set YU Yureka Plus Moondust Grey for Rs. 8999/- in the month of September 2015. Accordingly as per order placed by the complainant with opposite party No.3, opposite party No.2 has sent the mobile set YU Yureka Plus-Moondust Grey B011Hy3T1E having IMEI No. 911441050530983 vide Invoice K-BLR6-144105041-4335841 dated September 7th, 2015 and the same was duly received by the complainant. Thereafter the complainant started using the mobile set for his personal use and after few days, the complainant found some problem in the mobile set. The mobile set while using suddenly warm up resulting automatically switched off and in routine the complainant has to face this problem and another defect occurred into the mobile set as it does not work while operating and applications downloading on the phone does not operate properly. The complainant visited the service centre to check the mobile set, but they refused to check the same and told that since the same has been purchased online and they are not authorized to check/repair the mobile set. The complainant is facing lot of problems as the mobile set is not working properly as assured by opposite party No.3. The complainant served a legal notice to the opposite parties with a request to refund the amount of mobile set , but a reply from opposite party No.1 has been received clearly mentioning that they are not responsible to rectify the defect in the mobile handset of the complainant. The aforesaid acts of the opposite parties amount to deficiency in service. Complainant vide instant complaint has sought for the following reliefs:-
- Opposite parties be directed to replace the mobile handset of the complainant with new one of the same make and model or in the alternative to refund the price of the handset alongwith interest @ 12% p.a. from the date of payment till realization ;
- Opposite parties be also directed to pay compensation of Rs. 20000/- alongwith adequate litigation expenses.
Hence, this complaint.
2. Upon notice, opposite party No.3 appeared and filed written version taking certain preliminary objections therein inter alia that ASSPL neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their product for sale. The seller themselves are responsible for their respective products on the website. ASSP is neither responsible for the products that are listed on the website by various third party sellers nor does ASSPL influence any customers in any manner. ASSPL is not involved in the sale transaction between the customer and seller. The complainant has not purchased any goods from ASSPL nor has the complainant paid any amount to ASSPL for the purchased product. The goods have been purchased by the complainant from the independent third party seller selling its products on the website operated by the answering opposite party. Accordingly the complainant does not fall within the definition of consumer. As such there is no occasion for the complainant to approach this Forum seeking redressal of their grievances against ASSPL. The complainant has alleged that he placed an order for mobile set YU Yureka Plus Moondust Grey vide order ID 4034674954-1357130 from the seller on the website of answering opposite party on September 7, 2016. Though the website is managed and operated by the answering opposite party, but the transaction is between the seller and buyer. As per the return policy of the answering opposite party, the mobile phone, whose delivery is fulfilled by the answering opposite party, is not eligible for any refund. However, in case of receipt of a defective or a damaged mobile phone that is fulfilled by the answering opposite party, the customer is eligible for a free replacement within 10 days from delivery date. The complainant never contacted the customer support team of the answering opposite party regarding the alleged grievances in relation to the product. The warranty is provided by the manufacturer subject to the warranty terms and conditions and the answering opposite party has no role to play in the warranty terms and conditions . It was submitted that answering opposite party is merely a facilitator and is not involved in the sale transaction between the customer and seller. It is only the manufacturer and the service centre of the manufacturer who can resolve any such alleged defects with the product. While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite parties No.1 & 2 put appearance through Sh. Sumit Sharma,Advocate. But despite availing sufficient opportunities, opposite parties No.1 & 2 did not file written version, as such the right of the opposite parties No.1 & 2 to file written version has been forfeited vide order dated 7.1.2016.
4. In his bid to prove the case Sh. Amandeep Singh, Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of bill Ex.C-2, copy of legal notice Ex.C-3, copy of reply to the legal notice Ex.C-4 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence Sh.Sumit Sharma,Adv.counsel for opposite parties No.1 & 2 tendered into evidence affidavit of Ms.Sreenidhi Suresh , Company Secretary Ex.OP1,2/1, copy of extract of minutes of the meeting Ex.OP1,2/2 and closed the evidence on behalf of opposite parties No.1 & 2.
6. On the other hand Sh.Amit Monga,Adv.counsel for opposite party No.3 tendered into evidence affidavit of Sh. Rahul Sundaram Ex.OP3/1, copy of authority letter Ex.OP3/2, copy of resolution Ex.OP3/3 , copy of condition of use Ex.OP3/4 and closed the evidence on behalf of opposite party No.3.
7. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
8. From the facts and circumstances of the case, it becomes evident that the complainant has placed an order on the website of opposite party No.3 for the purchase of mobile handset YU Yureka Plus Moondust Grey for Rs. 8999/- from opposite party No.2. The opposite party No.2 has sent the mobile set YU Yureka Plus Moondust Grey B011Hy3T1E having IMEI No. 911441050530983 vide Invoice No. KA-BLR6-144105041-4335841 dated 7.9.2015 which was duly received by the complainant, copy of bill accounts for Ex.C-2 on record. It was the case of the complainant that after few days of the purchase of the mobile hand set, it started giving problem as it suddenly warm up resulting automatically switched off , secondly it does not work while operating and applications downloading . It was further the case of the complainant that he had visited the service centre to check the mobile set, but they refused to check the same on the ground that the complainant has purchased the product through online and they are not authorized to check/repair the mobile set. In this regard complainant also served a legal notice upon the opposite parties with the request to refund the amount of the mobile set , copy of legal notice is Ex.C-3 on record. In response to the legal notice, opposite party No.1 sent reply mentioning therein that they are not responsible to rectify the defect in the mobile handset of the complainant being the seller of the product and the defects mentioned in the notice relate to the manufacturer and/or the service provider , copy of reply to legal notice is Ex.C-4 on record. However, opposite party No.3 in their written version has submitted that they are merely a facilitator and is not involved in the sale transaction between the customer and seller and they have neither any knowledge nor the facility to ascertain any defect if it occurs in the product and it is only the manufacturer and the service centre of the manufacturer , who can resolve any such alleged defects with the product. However, opposite parties No.1 & 2 though put appearance but did not file written version, as such the right of the opposite parties No.1 & 2 to file written version stands forfeited . But, however, opposite parties No.1 & 2 tendered into evidence affidavit of Ms.Sreenidhi , Company Secretaru,cannot be corroborated in defence of opposite parties No.1 & 2 and in the absence of written version, same cannot be treated as defence taken by opposite parties No.1 & 2 to defend their case. So it stands proved on record that opposite parties No.1 & 2 has nothing to prove its case. However, the only defence of the opposite parties No.1 & 2 taken in the affidavit of Ms. Sreenidhi Suresh, Company Secretary that they are only the seller of the product and neither the manufacturer of the product nor the authorized service centre of the manufacturer and the role of opposite parties No.1 & 2 is limited to selling the product of the manufacturer to the complainant and even if the product is found to be defective as alleged by the complainant, it can only be the responsibility/liability of the manufacturer to replace or the authorized service centre to repair the same. It is neither the case of the opposite parties No.1 & 2 that there is neither any defect in the product nor the complainant has ever lodged any complaint in this regard. However, opposite parties No.1 & 2 cannot escape from their liability after sale of sub standard product only by saying that it is the responsibility of the manufacturer to replace the defective product. Reliance in this connection can be made Cadila Hospital Products Vs. Sri Kanth Bhatt and others 2005(2) CLT page 343 of the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi wherein it has been held in para No.4 of this order as follows:-
“In our view the relevant date is the date of purchase of the pacemaker and not the date when it became infected and needed replacement. It was on the representation of the appellant that the respondent purchased the pacemaker manufactured by a company whom they were representing in India. Thus appellant cannot escape from its liability of having sold substandard and defective pacemaker. Merely because the manufacturer was not impleaded as party cannot absolve the appellant from its liability. The liability of manufacturer and the supplier or seller is joint and several. Appellant was wrongly saddled with the liability to pay the price of the second pacemaker as he had only received Rs. 15,350/- towards the price of the pacemaker. He can at the most be penalized by way of compensation to the respondent on account of unfair trade practice and mental agony and harassment suffered by the respondent.”
9. When the facts of the present case are viewed in the light of the law laid down by the Hon'ble Delhi State Consumer Disputes Redressal Commission, it becomes abundantly clear that there is no necessity of impleading the manufacturer as the relief can very well be provided by the supplier of the product who has been impleaded as opposite parties in the present complaint case.
10. So in view of the above discussion, we are of the considered opinion that the complaint is liable to be allowed. As such, the complaint is allowed accordingly. Opposite parties No.1 & 2 are directed to refund the value of the mobile handset to the tune of Rs. 8999/- . Opposite parties 1 & 2 are also directed to pay compensation to the tune of Rs. 3000/- while litigation expenses are assessed at Rs. 2000/-. Compliance of this order be made within a period of one month from the date of receipt of copy of order ; failing which complainant shall be entitled to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated :11.4.2017
