Date of filing : 28.7.2017

Date of judgment : 15.6.2018

Mr. Ayan Sinha, Member

            This is a complaint under Section 12 and 13 of C.P.Act, 1986 made by Debarshi Sarkar, EE-162 A/7, Sector II, Salt Lake City, P.S.-Bidhannagar (East), Kolkata-700 091, West Bengal against (1) Huawei Telecommunication (India) Co. Pvt. Ltd., Kredent Tower, J-1/14, Block EP & GP, Sector-V, Salt lake City, P.S.-Salt Lake Electronic Complex, Kolkata-700 091, West Bengal (OP No.1), (2) Amazon India Limited, Brigade Gateway, 8^th floor, 26/1, Dr. Rajkumar Road, Malleshwaram(W), Bangalore-560055, Karnataka, India (OP No.2), (3) Green Mobiles, No.1/B, Indospace logistics Park, Puduvoyal Durainallur Village, Ponneri Taluk, Thiruvalluvar, PIN Code-601206, Tamilnadu (OP No.3) and (4) Anand International, 233, D.H.Road, Near Pathak Para Bus stop, Behala, Kolkata-700 034 (OP No.4), praying for direction upon OPs jointly or severally to refund the petitioner the actual price of the mobile phone of Rs.12,999/- with interest of 24% p.a. to be accrued from the date of purchase till the actual realization of the same along with compensation of Rs.20,000/- for harassment and litigation cost of Rs.15,000/-.

           Facts in brief are that the Complainant is an Advocate by profession whereas OP No.1 is manufacturer, OP No.2 is an online shopping portal, OP No.3 is a little App of OP No.1 and OP No.4 is the service centre of OP No.1.

         The Complainant was in urgent need of a mobile phone set with internet features and eventually got attracted with the advertisement of OP No.1 for mobile phone namely HONOR 6X. The same mobile phone was booked for a price of Rs.12,999/- and on 16.5.2017 this mobile phone was delivered by OP No.2 at Complainant’s residence.

             Suddenly, on 8.7.2017 the said mobile phone blacked out and became completely dead for which the Complainant went to OP No.4 for examination of the phone. OP No.4 communicated over phone that the mother board of the phone is malfunctioning and needs complete replacement which they have already ordered and waiting for the same to be supplied. The Complainant failed to find the reasons why the mother board of the phone crashed within a span of 2 months when it was used very lightly only for internet purpose. The Complainant addressed  to OP No.1, 2 & 3 through Speed Post on 15.7.2017 with a demand for replacement which was refused by OP No.1.

            Thereafter, the Complainant received calls on 15.7.2017 from Mr. Jignesh Sharma on behalf of OP NO.1 for information regarding the phone deposited at Service Centre which was replied back through e-mail. Again the Complainant received call from Mr. Sanjay Tewari on behalf of OP No.1 acknowledging the e-mail.

               On 20.7.2017, the petitioner received a call from Customer Care Executive of OP No.1 that the said phone had been repaired and was told to collect the same phone from the Service Centre. The Complainant sent an e-mail to OP No1 again demanding for replacement against which one Mr. Kishan Pippal called up and clearly intimated that as per their warranty policy cannot be replaced and advised to take the delivery of the phone from the Service Centre.

            The Complainant mentioned in the complaint petition that the phone had inherent manufacturing problem which developed to malfunctioning of the mother board and thereafter the refusal for replacement of the phone by OP leads to deficiency of service and thus filed this complaint case.

            Notices were served upon OPs. OP No1, 3 & OP No.4 has not contested this case by filing written version. OP No.2 filed written version in which they have stated that they are on line market place where independent third party sellers uploads displays, fix price and various other details on its own responsibility. Complainant has also not paid any consideration money to OP No.2 OP No.2 in their written version also stated that being an intermediary has no liability or role to address the grievance of this complaint and prayed for dismissal of this case against them. They have also cited some judgments for non-maintainable of this case against them.

            OP No.2 also filed a separate petition along with written version mentioning that this case has been filed against OP No.2 as “AMAZON INDIA LIMITED” and prayed for a direction upon Complainant for correction of cause title and change it to “AMAZON SELLER SERVICES PRIVATE LIMITED”.

            The Complainant has filed affidavit-in-chief reiterating the facts as mentioned in the petition of complaint to which OP No.2 did not file questionnaire and the opportunity for filing questionnaire by OP No.2 was closed after giving two dates fixing for OP’s evidence. OP No.2 has filed their evidence to which Complainant has filed questionnaire but OP No.2 did not file Affidavit-in-reply even after opportunity for two dates were given and finally the matter was fixed for argument.

            OP No.2 has filed BNA along with some judgments they have relied upon. The Complainant has also filed written argument to prove his complaint case.

            Main point for determination

1. Whether Complainant is a consumer?
2. Whether the case is maintainable against OP No.2
3. Whether there is any deficiency of service upon OPs?
4. Whether the Complainant is entitled for the relief as prayed for?

       Decision with reasons

           Point No. (i) – On perusal of the documents filed by Complainant, it appears that the Complainant bought one mobile phone Honor 6X (Grey, 64GB) X 0000ZSUID, IME I No.864068030893681 through on line shopping amazon.in vide invoice No.TN-MAA4-174078971- 481952 dt.14.5.2017 for Rs.12,999/- and the invoice was issued by OP No.3 i.e. Green Mobiles with Delivery to be made in Complainant’s address. Thus, Complainant is a consumer of OPs and as such Point No.(i) answered accordingly.

            Point No.(ii) – On perusal of the petition filed along with written version by OP No.2 on 11.10.2017, it appears that they have alleged that the Complainant has filed this complaint petition against AMAZON INDIA LIMITED, i.e. OP No.2 and they are AMAZON SELLER SERVICES PRIVATE LTD. (ASSPL), and prayed to give directions to the Complainant for necessary amendment as mentioned above. But the invoice issued by Green Mobiles to the Complainant clearly indicates in the below “Purchase made on amazon.in” and all returns of the items to be addressed to amazon.in/returns.

             Since Notices were served on Amazon India Ltd. (OP No.2) and OP No.2 has contested this case as Amazon Sellers Pvt. Ltd. by filing written version and evidence, and the Invoice also indicates “purchase made on amazon.in”, so Considering the facts and circumstances, we are in the opinion that the case is maintainable against OP No.2, since OP No.2 after displaying the product on their on-line portal by attracting consumers with offers and thereafter not attending the grievance of the consumer by shrugging off their responsibilities once the sale is complete.

              As such Point No.(ii) answered accordingly.

             Point No.(iii) – On scrutiny of the Invoice No.TN-MAA4-174078971-481952  dt.14.5.2017, issued by Green Mobiles (OP No.3), it is clearly mentioned that “Purchase made on amazon.in” and in case of returns of any item, the same has to be addressed to

          In point No.7, it is mentioned “During the warranty period, Huawei or its Authorised Service Centre will repair, at Huawei’s option, the product is found to be defective. The buyer of the product or his/her assignee (“consumer”) shall not be changed (whether for parts, labor or otherwise) for the repair or replacement of a defective product during the warranty period. All the replaced parts, boards or equivalent shall become the property of Huawei”.

          So, there is no doubt that OPs have unnecessarily harassed the Complainant. In ideal way OP No.2 could have immediately collected the mobile upon receipt of the Complainant and should have forwarded to the manufacturer either for replacement or for removal of defects, when actually the mother board of the phone is out of order which was detected by the Service Centre (OP No.4) of OP No.1 only. OP No.1 also after receiving the complaint took dilatory tactics and did not solve the Complainant’s problem. They have mentioned in their e-mail that they do not have replacement policies. On the contrary, in the warranty card of OP No.1, it is clearly mentioned in Clause No.8.

            “The warranty in respect of a repaired or replaced product/part shall continue until the expiration of the remaining warranty period or ninety (90) days from the date of repair or replacement, whichever is longer.”

             So. OP no.1 being a manufacturer also did not take any initiative to replace or advise OP no.2, OP No.3 and OP No.4 for solving the problem of the Complainant, when the said phone was well within warranty period.

               So, we hold that there is deficiency of service upon OPs.

                In lieu of this they have cited judgment which they relied upon and are as follows:-

1. Hon’ble High Court Delhi in Kent RO Systems Ltd. VS Anr V. Amit Kotak & Ors, C.S.(Comm) 1055/2016
2. Bombay High Court in Siddhi Vinayak  Knots & Prints Pvt. Ltd. VS Crafts Villa & rs (NM(L) 2425/2015 IN SUIOT (l) No.906/2015)
3. Hon’ble Supreme Court of India in Shreya Singhal VS. Union of India AIR 2015 SC 1523.

              In regards to (a) where Hon’ble High Court Delhi was pleased to pass an order on IT ACT & RULE where the intermediary will not permit to be hosted as its website any information infringing the intellectual property rights of any other person if such person had informed the intermediary of the same.

           But in this case the Complainant has done an online purchase which was displayed in Amazon.in(i.e. OP No.3) and the same mobile was out of order just after 2 months.

            In regard to (b) Hon’ble Bombay High Court in Siddhi Vinayak VS Crafts villa the case was also for Information Technology Act where a party has copied another party’s design and displayed o n the website.

            But in this case the Complainant had purchased the mobile on online shopping of Amazon.in and the same was sold by Green Mobiles (OP No.3) and delivered by OP No.2.

            In (c) the Hon’ble Supreme Court of India, in Shreya Singhal VS Union of India AIR 2015 SC 1523. In that complaint case Hon’ble Supreme Court was pleased to pass an order directing the intermediary to follow as per regulations IT Act order how the intermediary will act and follow. But, in this case it is simply a purchase of a mobile through online shopping of OP No.2 displaying the products of OP No.1.

            To adjudicate this petition of complaint, we have relied upon the judgment of Hon’ble NCDRC in Rediff.com India Limited VS Ms. Urmil Munjal, RP4656 of 2012 and the order was passed on April, 2013. In that complaint case Rediff.com is an online shopping platform where they had claimed was mere facilitator of the transaction between the seller and buyer and cannot be held for any deficiency of service. Rediff.com also alleged Complainant is not a consumer since there was no contract for supply and the services provided to the buyer are gratuitous or without any consideration. But, Hon’ble National Commission was pleased to pass an order in para 9 of the judgment “If this is the declared business interest of RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its consumers, without any consideration. It is certainly not the case of RP/OP that it is a charitable organisation involved in e-commerce, with no business returns for itself. We therefore, reject the contention of the Revision Petitioner that the Respondent/ Complainant is not a consumer of the Revision Petition within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986” and, therefore, Hon’ble NCDRC was pleased to dismiss the revision petition case filed by Rediff.com who is an online shopping portal.

            In the instant case also OP No.2 alleged that Complainant is not a consumer and they are just intermediary.

            Taking all facts and circumstances and judgments cited by the OP No.2, we hold there is definitely a deficiency of service upon OPs and the Complainant is entitled to the reliefs.

            As such point No.(iii) and (iv) answered accordingly.

            The Complainant has prayed for refund of the actual price of the mobile which is Rs.12,999/- with interest @ 24% to be accrued from the date of purchase along with compensation of Rs.20,000/- and litigation cost of Rs.15,000/-.

            Considering circumstances, we are inclined to pass no order as to compensation.

            In our view, it will be just and proper if a direction be given upon OPs to refund Rs.12,999/- and litigation cost of Rs.2,000/- justice would be served.

            Hence ordered

            CC/419/2017 and the same is allowed on contest against OP No.2 and ex-parte against OP No.1, OP No.3 & OP No.4.

            OPs are directed to pay Rs.12,999/- to the Complainant within 30 days from the date of this order along with litigation cost of Rs.2,000/- within the aforesaid period. The liabilities of OPs are joint and several.