Order dictated by:

Ms. Rachna Arora, Member

1.       The complainant has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that  the complainant is law abiding citizen and is residing with his family. He put an online order to the opposite party no.4 for purchasing a mobile phone made of One plus company Oneplus 2 (Sandstone black, 64G) in the month of Oct 2015. That the opposite party no.1 to 3 are authorized representative of opposite party no.4, who booked the parcel of Oneplus2 A2003 IN 64GB (Sandstone) Black Model by the complainant on his address through cash on delivery payment. It was expressly assured on-line that the company provide one year warranty guarantee on the said mobile handset. Accordingly, on 12^th October, 2015, handset Oneplus 2(IMEI 867290027275535) parcel delivered to the complainant through its representative of opposite party no. 1 to 4 and received the COD amount of Rupees 24,999/- from the complainant against invoice receipt (Invoice no KA-BLR6-144105041 4834468). The opposite parties 1 to 4 supplied the defective mobile handset which was having consistent manufacture defects as the said handset has MIC problem which not hearing properly, overheating in Battery charging problems and Hand set does not catch the SIM signals properly. On 8th September 2016 complainant approached to Opposite Party No.5 i.e. Company's authorized service center opposite party no. 3 and made complaint in this regard, without giving such satisfactory solution regarding removal of the hardware defects in handset, they just reinstalled the software in handset. The problems of handset were still there. The complainant again went to opposite party no.5 the authorized service center of opposite party no.3 and requested them to resolve the problems of handset. The technician of the opposite party no. 5 opened the hand set of complainant and changed its battery part number 04080004010. On 19-september-2016 complainant again went to opposite party no. 5 and again requested them to remove the problems of his handset or replace it with new one but they refused to do so. Further, they suggested the complainant that there must be some problem related to the motherboard chip in this handset, then they replaced part named as small PCBA(China) part no 4090004060 from the said handset. But inspite of these efforts, the mobile handset of the complainant has not been worked & functioned properly. Then on 27 September 2016 complainant again made call on the number of Oneplus India customer service.  The call was attended by Mr Ajit Mishra representative of opposite party no.3, complainant explained every problems regarding the defective handset which has not been functioned properly as designed assured on opposite parties on-line sight. The complaint was registered by the complainant regarding the defect of its working & functioning, but the Opposite Parties have failed to remove the defect in the product. The opposite parties have done unfair trade practice by cheating the complainant by giving a defective handset. Vide this complaint, the complainant has sought the following reliefs:

1. Opposite Parties be directed to return the amount paid by the complainant alongwith interest.
2. That the complainant may be further awarded to Rs.50,000/- as compensation for physical & mental harassment from the opposite parties.
3. That the complainant may be further award compensation of Rupees 10,000/- as litigation expenses from the opposite parties,
4. To make direction to the Telecome Regdulatory Authority of India for cancellation of the license of  Opposite Parties due to unfair trade practice.
5. And any relief to which the complainant is found entitled may also be granted in his favour in the interest of Justice, equity and fair play.

Hence, this complaint.

2.       Upon notice, opposite parties No.1, 2 appeared and contested the complaint by filing  the joint written statement taking preliminary objections therein inter alia that the answering Opposite Parties denies each and every statement or contention which is inconsistent with, or contradictory to, whatever is stated in this written statement, and no statement, or contention, not specifically denied by the answering respondent shall be deemed to have been admitted merely for want of a specific traverse. The instant complaint is bad in law as much as no services much less after sales services have been provided by the answering respondent. The liability to provide after sale services do not upon the answering respondent as it is neither the manufacturer of product nor the authorized service centre of the manufacturer who has the sole and prime responsibility to provide after sale services to the consumers. It is  submitted that answering Opposite Parties are an independent entity which is carrying on the business of sale of goods as a retailer and as a registered seller on the Website operated and managed by Amazon Seller Services Pvt Ltd (ASSPL The answering Opposite Parties  clarifies that the relationship shared between the answering Opposite Parties  and ASSPL is on a principal to principal basis, and either of the parties are neither willing to, nor assume any responsibility for any action inaction, warranties liabilities, etc qua the other Accordingly it is denied that the answering respondent is the authorized representative of OP4 Notwithstanding aforesaid, it is an admitted matter of record that the Product was received by the Complainant on October 12, 2016 without any demur. However, it is further clarified at this stage that the Product on which the Complainant is claiming as stated, has been provided to him Manufacturer's warranty if at all in existence. by the manufacturer of the Product i.e. OnePlus. As entire transaction is limited to that of selling of the Product.  The liability to provide after sale services do not lay upon the answering respondent as the answering respondent is neither the manufacturer of the Product nor the authorized service center of the manufacturer, who has the sole and prime responsibility to provide after sale services to the consumers under Manufacturers warranty clause.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       None appeared on behalf of Opposite Parties No.3 and 5, hence they were proceeded against exparte vide order of this Forum.

4.       Opposite Party  No.4 appeared and contested the complaint by filing  the joint written statement taking preliminary objections therein inter alia that the Complainant has wrongly impleaded Amazon India as opposite Party No 4 to the instant complaint. It is submitted that the Answering Respondent is a well reputed company and has a very large customer base and amongst others, manages and operates the website www.amazon.in It is pertinent to submit here that the Answering Respondent herein neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale The sellers themselves (and not the answering respondent) are responsible for their respective listings and products on the Website. The answering respondent is neither responsible for the products that are listed on the Website by various third party sellers nor does the answering respondent intervene or influence any customers in any manner The answering respondent is not involved in the sale transaction between the customer and seller. The conditions relating to the customers use of the Website (as expressly available on the Website) and specifically agreed by the customer states that the answering respondent is only a facilitator and cannot be a party to or 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. Admittedly, the Product was received by the complainant on October 12. 2015 without any demur in a good usable free from any defect condition as on October 12 2015. A complaint alleging manufacturing defects in the Product only on September 8, 2016 was raised after using the Product for more than 11 months.  It is denied that any unfair trade practice has been adopted by the answering respondent Infact, the answering respondent does not undertake any trading activity in the absence of the same, there arise no question of adoption of any unfair trading activity, as alleged Further, the Product is neither manufactured nor sold by the answering respondent, therefore, no liability can be fastened on the answering respondent for the alleged defects in the Product.  Even on a bare perusal of the complaint it is crystal clear that the complainant is only insisting for warranty repairs in the Product which the complainant has already used for more than 11 months since the role of answering Opposite Party   is limited to that of a facilitator. The answering respondent is not the Seller neither it is the manufacturer nor the service provider Accordingly, the answering respondent is not liable in any manner to the Complainant. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

5.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.CW1/A in support of the allegations made in the complaint and also produced copies of documents Ex.C1  to Ex.C2  and closed his evidence.

6.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties No.1, 2 tendered into evidence the affidavit of Sh.Swati Chaudhary, Ex.OP1/2/1, affidavit of Sh.Harshit Ratan Ex.OP1,2/2 alongwith copies of documents Ex.OP1,2/3. Opposite Party  No.4 tendered into evidence affidavit of sh.Rahl Sundaram ExOP4/1 alongwith copies of documents Ex.OP4/2 to Ex.OP4/3 and thereafter, Opposite Parties closed their respective evidence.

7.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

8.       Ld.counsel for the complainant  has reiterated the facts as detailed in the complaint and argued that  the complainant put an online order to the opposite party no.4 for purchasing a mobile phone made of One plus company Oneplus 2 (Sandstone black, 64G) in the month of Oct 2015. The  opposite party no.1 to 3 are authorized representative of opposite party no.4, who booked the parcel of Oneplus2 A2003 IN 64GB (Sandstone) Black Model by the complainant on his address through cash on delivery payment. It was expressly assured on-line that the company provide one year warranty guarantee on the said mobile handset. Accordingly, on 12^th October, 2015, handset Oneplus 2(IMEI 867290027275535) parcel delivered to the complainant through its representative of opposite party no. 1 to 4 and received the COD amount of Rupees 24,999/- from the complainant against invoice receipt (Invoice no KA-BLR6-144105041 4834468). The opposite parties 1 to 4 supplied the defective mobile handset which was having consistent manufacture defects as the said handset has MIC problem which not hearing properly, overheating in Battery charging problems and Hand set does not catch the SIM signals properly. On 8th September 2016 complainant approached to Opposite Party No.5 i.e. Company's authorized service center opposite party no. 3 and made complaint in this regard, without giving such satisfactory solution regarding removal of the hardware defects in handset, they just reinstalled the software in handset. The problems of handset were still there. The complainant again went to opposite party no.5 the authorized service center of opposite party no.3 and requested them to resolve the problems of handset. The technician of the opposite party no. 5 opened the hand set of complainant and changed its battery part number 04080004010. On 19-september-2016 complainant again went to opposite party no. 5 and again requested them to remove the problems of his handset or replace it with new one but they refused to do so.

9.       On the other hand, ld.counsel for the appearing parties repelled the aforesaid contention of the ld.counsel for the complainant on the ground that admittedly, the Product was received by the complainant on October 12, 2015 without any demur in a good usable free from any defect condition as on October 12 2015. A complaint alleging manufacturing defects in the Product only on September 8, 2016 was raised after using the Product for more than 11 months.  It is denied that any unfair trade practice has been adopted by the answering respondent. However, none appeared on behalf of Opposite Parties No.3 and 5 despite due service for the reasons best known to them.  Hence, it is the admitted fact that the handset became defective within warranty period of one year.  The complainant made so many complaints to the Opposite Parties for put the said handset in working condition or in the alternative replace the same or refund the cost of the product, but the Opposite Parties failed to comply with any of the condition, therefore, the necessity arose to file the present complaint. The aforesaid act of the Opposite Parties of not listening the genuine and legitimate request  of the complainant is quite illegal, unwarranted and unsustainable. The contention of the complainant is that since the date of purchase of handset in question it started giving problem,  and the same is not working properly and not giving  the proper service and the Opposite Parties have given defective handset  and deprived the legal rights  of the complainant for not taking  benefit of the handset in question.    It is not disputed that the handset  in dispute started giving problem within warranty period. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount. Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.  In the instant case, handset  in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that  the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.  So, in such a situation, we direct all the Opposite Parties jointly and severally to refund the price of the handset in question amounting to Rs. 24,999/- to the complainant within 30 days from the date of receipt of copy of this order, failing which the Opposite Parties shall be liable to pay the awarded amount alongwith interest @ 6% per annum from the date of order till its realisation. The Opposite Parties are also jointly and severally  directed to pay Rs.2,000/- to the complainant on account of litigation expenses.   Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 17.08.2017.                  (