MRS.RAJASHREE AGARWALLA,MEMBER:-
Deficiency in service and unfair trade practice in respect of manufacturing defect in LED TV and its non-replacement are allegations arrayed against Ops.
2. Complaint, in brief reveals that complainant purchased a 40” Full HD LED TV, manufactured by Micromax(OP No.1 & 2) through Amazon India(OP No.4) shopping site on dtd.27.10.15 by cash on delivery of Rs.20,990/- vide Invoice No.UP-QNAE-156405371-4512. It is alleged that on dtd.24.07.16, when complainant switched on the TV set a crack extending from middle of top to bottom right corner was marked on the said TV set. Complainant lodged a telephonic complaint to customer care, Amazon India.in in telephone No. 180030009009. On the suggestion of OP No.4 Amazon India.in complainant lodged a complaint before OP No.1, Micromax Customer care bearing complaint No.OR250716936352 on dtd.25.07.2016, who assured the complainant to look into the matter through higher officials. Complainant also contacted to the local servicing centre of Micromax i.e. Lucky Enterpriser(Micromax LED service Centre) OP No.3, who arrived and took photographs of defective TV and related documents. The complainant was in regular touch with OP-manufacturing company and lastly the officials/technicians of Ops demanded money to eradicate the defect, which is an eternal one but complainant refused to accept the offer. It is also alleged that, complainant’s son is physically challenged person who lives his life on a wheel chair and passes his majority time by watching TV and without proper functioning of the TV set the complainant and his family member is sustaining emotional pain and mental agony. Hence, prayed this Forum for replacement of TV of same model with warranty and to pay a compensation of Rs.12,000/- for mental agony along with cost of litigation.
3. Being noticed OP No.1 & 2 manufacturing company appeared through their Ld. Counsel but did not file any written statement, equally notice was duly served on Lucky Enterprises, the authorized service centre(OP No.3) and postal AD against OP No.3 is a part of the record, who also did not prefer to appear, hence OP No.1 to 3 were set ex-parte by this Forum.
4. Upon receipt of notice Amazon Seller Service Pvt.Ltd. ‘ in short ‘ASSPL’(OP No.4) appeared into the dispute and filed written statement submitting that OP No.4 neither Sales nor offer to sale any products and merely provides an online market place where independent third party sellers can list their product for sale and sellers are responsible for their respective listings and products on the website. The OP No.4 is not involved in the sale transaction between the customer and seller. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller. In the written statement Ops challenge the maintainability on the ground that there is no relationship between complainant and OP No.4 as ‘consumer’ and ‘trader’ or ‘service provider’ as per definition U/S-2(1)(d) of C.P.Act,1986. In the facts of the case it is averred that complainant placed an order for Micromax 40 “ Full HD LED TV on dtd.27.10.2015 and as per ‘condition of use’ the OP No.4 intimated the complainant to raise the matter before the manufacturing company. It is categorically recited in the written statement of OP No.4 that the ASSPL can not be a party to or control in any manner any sale transaction on the website, the OP No.4 just acted like a facilitator in the business deal. Accordingly, OP No.4 averred that they have not caused any financial loss and mental agony to the complainant, hence the allegation and complaint is to be dismissed against the answering Ops with exemplary cost.
5. Heard the submissions of complainant and case of OP No.4 ASSL on merit and ex-parte hearing against OP No.1 to 3. Ld. Counsel for OP No.1 & 2 retired from the proceeding during pendency of the dispute,perused the mail correspondence documents filed by complainant. It is a fact that complainant purchased a FULL HD LED TV manufactured by Micromax Informatics Ltd., booking through Amazon India(OP No.4) on dtd.27.10.15 by paying an amount of Rs.20,990/-. It is also revealed from the mail correspondence document that the said TV set of the complainant went defective since 24th July,2016, for which complaint was lodged before the OP No.4 and OP-manufacturing company. OP No.4 though responded the complaint, but did not eradicate the defects in the said TV. OP No.4, ASSL who is an online business partner of OP-Finance Company submits that as per the contract different company’s to sale list their product with the OP No.4. The warranty and replacement of any defective product the manufacturing company is liable for the same. In support of their stand, OP No.4 ASSL filed details copy of agreement for ‘conditions of use’ and ‘condition of sale’. The customers like complainant are binding to the conditions of OP No.4-Company. It is further revealed that OP No.4 acts like a facilitator in the process of transaction. OP No.4 challenges the maintainability of the complaint on the grounds that there is no relationship between ‘complainant’ and ‘OP No.4’ as per the provisions of C.P.Act,1986. In this aspect we are of the opinion that when the alleged TV set booked through OP No.4, then the OP No.4 accepted the booking on ‘consideration’ which is an ‘offer by the complainant’. Hence, complainant and OP No.4 are ‘consumer’ and ‘Trader’ or ‘Service Provider’. In the present case the settle principle of law is that to eradicate or to replace the TV set, the manufacturing company is only liable, though the company appeared but did not filed any written statement in their support, hence without any evidence, we cannot held that the alleged TV set was not having any inherent manufacturing defect. This case is a non-rebuttal in nature. Further, during the pendency of the proceeding OP-manufacturing Company along with the complainant filed a joint petition to replace the TV set along with compensation. But the negotiations failed, reasons best known to the parties. In this case OP-manufacturing company has no defence to counter the allegations of the complainant, further on presentation of joint petition for replacement TV, where no expert evidence is required to assess the TV set to justify the allegation of complainant and the action of OP-Finance Company impressed this Forum that the complainant’s TV set is having manufacturing defect, same to replaced with compensation as per terms and conditions of the warranty issued by the OP-manufacturing company to its customers. The warranty is valid for a period of one year from the date of actual purchase of the product. It is revealed that complainant had purchased the TV set on dtd.27.10.2015 and the warranty expires on dtd.26.10.2016, accordingly the defects and claim for replacement of TV set is well within the existence of the warranty period. This forum finds no deficiency in service or unfair trade practice committed by OP No.4, accordingly OP No.4 is freed from the said charges. In the complaint it is alleged that, complainant’s son who is a physically challenged person spends his time on wheel chair by watching TV programme, and in the absence of non-functioning of the TV set, it definitely causes emotional pain to the complainant and his family, for which complainant deserves sympathy of this Forum.
Having observations reflected above, it is directed that OP No.1 & 2 will replace TV set of the complainant of same model and same price on its production by the complainant before OP No.3, Lucky Enterprisers,Ganamahal,Kendrapara for its handing over to OP No.1 & 2 manufacturing Company. OP-manufacturing company will issue a fresh warranty from the date of delivery of the TV set. If, the TV set of same model is not available with OP-manufacturing Company, OP-Company will refund the price of the TV set of Rs.20,990/- with 9 per cent interest from dtd.25.07.2016 to till its realization. The OP-Company will pay Rs.5,000/- as compensation for mental agony including cost of litigation. The order is to be carried out by OP-manufacturing company within one month of receive of the TV set from the OP No.3(local servicing centre),failing which action will be initiated against the defaulting parties.
Complaint is allowed in part with cost against OP No.1 to 3 on ex-parte.
Pronounced in the open Court, this 29th day of April, 2017.
