Date of Filing: 31-03- 2017

                                                                                         Date of Order:28 -10-2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

   HON’BLE Sri P.VIJENDER, B.Sc. L.L.B.  PRESIDENT

HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER

Monday, the  28^th day of October, 2019

C.C.No.166 /2017

Between

Bongu Sai Ram Goud,

Aged 30  years, Occ: Private Employee

C/o.Mr.Chandra Kant Shukla,

21-1-958, Ghansi bazar,

Opp: High Court, gate No.6,

Hyderabad – 500002

Ph.No.8008561103                                                           ……Complainant                                                                          

And

1. Lenovo India Pvt.Ltd.,

Rep. by Managing Director

Ferns Icon, Level -2,

Doddenakund Village,

Marathhalli Outer Ring Road,

Marrathhalli Post, Kr Puram Hobli,

Bangalore – 560037

2. Amazon India

Rep. by its Principal Officer

Brigade Gateway, 8^th floor,

26/1, Dr.Rajkumar Road, Malleshwaram West,

Bengaluru, Karnataka – 560055

3. Satyam Electronics,

Rep. by Principal Officer,

Authorised Lenovo Mobile Service Centre

2-42/1, Chaitanya Chambers,

Chaitanyapuri, Dilsukhnagar,

Hyderabad – 500060

Ph No.040-49531356                                                ….Opposite Parties

Counsel for the complainant                      :  Mr.Ch. V. Prasad Babu

Counsel for the opposite Party No.1         :  Party in person

                          Opposite Party No.2          :  M/s. Rights & Marks

                                                                      Mr. Devarajan G

                           Opposite Party No.3         :  Party in person

O R D E R

(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint has  been preferred under Section 12 of C.P. Act  1986 alleging  that sale of  handset to the complainant having manufacturing defect amounts to unfair trade practice,  hence a direction to the opposite parties to compensate the loss caused to the complainant by paying a  sum of Rs.90,000/- and award further sum of Rs.10,000/- towards costs of this complaint. 

1. Complaint averments in brief are that  the complainant purchased a smart phone for the personal use  having  IMEI No.865374020143312 manufactured by opposite party No.1 through online  platform  of opposite party No.2 on 19-5-2016.  But right from the  date of purchase it is   causing  problem like hanging as same is  having  manufacturing defect.  The complainant has to restart the phone by  removing  the battery  and inserting  it every time  when it  hang’s up and   in the process he was losing several important calls.  Since the product was  in the warrantee period the complainant visited the authorized service centre  opposite party No.3 herein to rectify the problem but  having  collected  it for  2 times  on 3-10-2016 and 19-12-2016 opposite party No.3 did not rectify the defect.  In fact opposite party No.3 retained  the handset for longer time thereby caused any amount of inconvenience to the complainant during the said period.   Sale of product having manufacturing defect amounts to not only unfair trade practice but also deficiency of service as the authorized service centre failed to rectify it.  Hence the present complaint. 
2. Manufacturer Opposite party No.1 and authorized service centre opposite party No.3 herein remained absent  despite service of notices of  this complaint. 
3. Opposite party No.2 alone filed a written version contending that  it is neither  sold nor offered to  sell any product to any prospective purchaser.  It is only  online platform  where independent 3^rd party sellers  can list their products  for sale.  Similarly  users registered  with its online services are interested  buyers who  browse and buy products that are listed by the  3^rd party sellers.  Thus opposite party No.2 is only provider of a platform  where the sellers are responsible for their  respective  listings, offers and products  on the website.  Both  the sellers  and users are registered with the  opposite party No.2 website and they are strictly  bound by a bipartite  contract between the customer/buyer  and the seller.  Hence opposite party No.2 neither  responsible   for the products that are  listed on the website by various  third party sellers nor intervenes or influences any customers in  any manner.  Opposite  party No.2 is not involved in the sale transaction between  the customer and  seller. The conditions  relating  to the customer’s  use  of the website  and  specifically  agreed by  the customer for binding and opposite party No.2 being only  a facilitator  cannot be  a party to  or control  in any manner any sale transaction   on its website.  Hence filing of the complaint against the opposite party No.2 is not maintainable and no relief can be granted to the complainant against it. 

        In the enquiry  the complainant has  got  filed his evidence affidavit reiterating    the material facts of the complaint and  to support the same got exhibited  four (4) documents.    Similarly for the  Opposite Party No.2 the   evidence affidavit  of its authorized signatory  Cum its Senior Corporate Council is got filed and  the substance of the  same is in line  with the defense taken in the written version.  Copy of resolution authorization of Sr.Counsel cum authorized signatory to represent the opposite party No.2 in the proceedings   Copy of conditions relating to use of website of it are exhibited as B1 and B2 documents.    Both complainant and opposite party No.2  filed written arguments. 

            On a consideration of material available on the record the following points have emerged for consideration .        

1. Whether  the complainant could make out a case of  unfair trade practice  and deficiency of service  on  the part of the  opposite parties  ?
2. Whether the complainant is entitled for the amounts claimed in the complaint?
3. To what relief?

Point No.1&2:  The complainant’s case is he purchased a smart phone manufactured by opposite party No.1 by using the online platform of opposite party No.2 and opposite party No.3 is authorized service centre of the said product.  Ex.A1 invoice evidences the purchase of the said product by the complainant on 19-5-2016.  This invoice further shows the amount  was paid by the complainant  on delivery of the product and cost of Rs.13,499/- inclusive of all taxes.  As per Ex.A2 product description  the month and year of the manufacturing  of the product was April, 2016 i.e,  just  one month prior to the purchase by the complainant.  Ex.A3 is  service order generated by opposite party No.3 and it evidences  handing over the product purchased by the complainant  from opposite party No.1 i.,e manufacturer  on 3-10-2016 with a complaint of hanging . Ex.A3 further evidences that by the time   smart phone  was handed over to the opposite party No.3 by the complainant  it was in warrantee status the nature of the complaint was hanging problem.  Ex.A4 is  another service  order from the opposite party No.3 with a complaint of power on / off  issues but by then it was out of  warranty.  As per the service notes mentioned by opposite party No.3 phone was found in liquid damaged condition.  In Ex.A4 there is no mention of complaint of hanging problem was resolved by opposite party No.3 when it was first handed over by the complainant.  This documentary evidence placed on record by the complainant fortifies  his version  that  he bought the defective smart phone manufactured by opposite party No.1 by using online platform of opposite party No.2 where the opposite party No.1 listed it product for sale and complainant  by using the said platform  purchased it and this service between the complainant and opposite party No.1 are seller and buyer.  Since the opposite party No.3 authorized service centre of product manufactured by opposite party No.1 and accepted the service when  smart  phone was handed over  by the complainant says  a relationship  as customer and service provider. At the same time  it is to be seen that there is no relationship by either seller and buyer  or customer and  service provider between the complainant and opposite party No.2 because as rightly contended in the  written version as well as  in the evidence affidavit  it is only  facilitator  in listing of products by manufacturer  and the prospective  purchaser of the  product  sale  listed out.  No part of sale  consideration   paid by the complainant for the purchase of  smart phone were shared  by opposite party No.2 so as to rope in  opposite party No.2 along with opposite party No.1 & 3 in the  present complaint.  Similarly  it is not the case of the complainant  that  any services were promised by opposite party No.2 in the transaction between him and manufacturer   for the purchase of the  smart phone as such  the complainant  cannot maintain  the present complaint  against opposite party No.2 who is only mediator and facilitator  between the seller and prospective purchaser  of the product listed  on the  platform of opposite party No.2. 

                The material brought on record has clinchingly  proved that  the smart phone  manufactured by opposite party No.1 purchased by the complainant  by using the online platform of opposite party No.2 got manufacturing defect and  opposite party No.3 as an authorized service  provider of the  product manufactured by opposite party No.1 failed to resolve it and thus the complainant  made out a case of unfair trade practice   by opposite party No.1 and  deficiency of service  against opposite party No.3.  Hence complaint is allowed in part directing the opposite party No.1 to refund the cost of smart phone with interest and further directed opposite party No.1 &3 who caused lot of inconvenience on account of sale of smart phone having manufacturing defect hence entitled for the grant of compensation as such opposite party No.1&3 liable to pay  a sum of Rs.25,000/- as compensation to the complainant.  Accordingly point No.1&2 are answered. 

Point No.3: In the result, the complaint is allowed in part directing

1. The opposite party No.1 to refund the cost of  smart phone sold to the complainant  at Rs.13,499/- with interest at 18% from 19-5-2016 to the date of payment
2. Opposite party No.1&3  are directed to pay a sum of Rs.25,000/-  towards  compensation for mental agony  & inconvenience  to the complainant  and further  directed to pay a sum of Rs.5,000/- towards cost of  this complaint.
3. Complaint against opposite party No.2 is dismissed.

Time for compliance : 30 days from the date of service of this order

                        Dictated to steno, transcribed and typed by her, pronounced  by us on this the     28^th  day of October , 2019

MEMBER                                                                                            PRESIDENT

APPENDIX OF EVIDENCE

Exs. filed on behalf of the Complainant:

Ex.A1- copy of retail invoice /cash memorandum dt.19-05-2016

Ex.A2- copy of  product description dt.19-05-2016

Ex.A3- copy of service center’s job order dt.3-10-2016

Ex.A4- copy of service center’s job order dt.19-12-2016

Exs. filed on behalf of the Opposite party No.2

Ex.B1 –  copy of Resolution

Ex.B2-  copies of  conditions of use and conditions of sale

MEMBER                                                                                            PRESIDENT