Punjab

Faridkot

CC/16/274

Dr. Gurdeep Singh Sidhu - Complainant(s)

Versus

Managing Director Amazon India - Opp.Party(s)

G.S. Chauhan

08 May 2017

ORDER

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :          274     

Date of Institution :     19.09.2016

Date of Decision :       8.05.2017

Dr. Gurdeep Singh Sidhu aged about 45 years s/o Mohinder Singh Sidhu # 44, Housefed Colony, Bathinda, now # 492, Puri Clony, Ferozepur Road,  Faridkot.                                                                    

.....Complainant

Versus

1.  M/s Amazon Seller Services Private Limited (ASSPL) through its Managing Director, Brigade Gateway, 8^th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore-560055.
2. Managing Director, Cloudtail India Pvt Ltd, Anjareya Infrastructure Project No. 39 & 39, Soukya Road, Kacherakanatalli, Hoshote Taluka, Bangalore rural District Bangalore-560057, Karnataka, India.
3. Managing Director, Xiaomi Technology India Private Limtied, 8^th Floor, Tower-1, Umiya Business Bay Marathahalli-Sarjapur, Outer Ring Road, Bangalore, Karnataka, India.

........OPs

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Sh Purshotam Singla, Member.

 

Present: Sh G S Chauhan, Ld Counsel for Complainant,

              Sh Neeraj Maheshwary, Ld Counsel for OP-1,

             OP-2 and 3 Exparte.

 

ORDER

(Ajit Aggarwal, President)

                                          Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to replace the defective mobile with new one or to refund the cost of mobile and for further directing OPs to pay Rs 50,000/-as compensation for harassment and mental tension suffered by complainant alongwith Rs.5,500/- as litigation expenses.

   2                        Briefly stated, the case of the complainant is that complainant purchased one new Xiaomi Redmi Note 3(Gold. 32 GB) hand set for Rs.11,999/- from OP-2 through OP-1 vide invoice no KA-BLR6-14410504113110505 bearing order ID 4035654005-7573106 dated 25.05.2016 having warranty till 26.05.2017. Said mobile phone started giving problems just after purchase. In July, 2016 it started showing network signal problem and complainant had to select the network manually within short span of an hour. Besides it used to be hang mode and got switched on and off at its own and on 16.08.2016, it became dead automatically and did not switch on despite repeated attempts. Complainant contacted OP-1/Customer Care of Amazon for refund of cost price of mobile but they did not give any satisfactory reply. It is further contended that worst part on Redmi is that there is no service centre of Ops in district Faridkot and its nearby area. The product sold by Ops is of very low quality and it has inherent manufacturing defect and there is deficiency in service on the part of Ops in supplying such defective mobile handsets to customers. Ops have not come up to warranty provisions of handset and have even failed to redress his grievance. Repeated requests made by complainant for replacement of mobile bore no fruit. This act of OPs amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and mental tension to complainant. Complainant has prayed for directing OPs to replace the said mobile phone or to refund its cost price and to pay compensation of Rs.50,000/- for harassment and mental agony suffered by him besides Rs.5,500/- as litigation expenses. Hence, the present complaint.

3                         Ld counsel for complainant was heard with regard to admission of the complaint and vide order dated 26.09.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                        On receipt of the notice, the OP-1 filed reply taking preliminary objections that complainant is not the consumer of answering OP as complainant has not purchased the said handset in question from answering OP nor that he paid any consideration for said handset to answering OP. It is averred that complainant purchased the mobile in question from an independent third party seller selling its products on website operated by answering OP and thus, he is not the consumer of OP-1. It is asserted that OP-I has an online marketplace where independent third party sellers have listed their products for sale and OP-1 is neither a necessary not a proper party to the complaint. There is misunderstanding on the part of complainant that he considers himself to be consumer of OP-1. It is further averred that OP-1 acts like a facilitator and it has no role in any trading activity and moreover, mobile handset in question is neither manufactured by OP-1 nor it is sold by answering OP and thus, no cause of action arises against OP-1. Ld counsel for OP-1 stressed mainly on the point that no transaction occurred between complainant and OP-1 as complainant has neither paid any amount to them nor have they sold anything to complainant. the contract of sale and purchase of items traded over at website is strictly a contract between registered seller and the customer and both the parties are bound by the terms of conditions of use and there is no privity of contract between complainant and answering OP-1 and therefore, OP-1 is not responsible for any non-performance or breach of contract occurred between complainant and the seller. It is further averred that website of OP-1 is just a platform that enables to purchase products listed on website at the price indicated therein at any time from any location and it is just a facilitator and is not a party and can control any transaction on website and thus, contract of sale of products on website is a contract between complainant and the seller and OP-1 is not liable for any action or inaction of sellers or for any breach of conditions regarding warranty of products given by sellers and OP-1 cannot resolve any dispute between complainant and the seller or manufacturer of products. Complainant purchased the said mobile set from Op-2 and OP-3 is the manufacturer of this set and contract of this sale is between complainant and the seller and OP-1 is not involved in this sale transaction. Moreover, this Forum has no jurisdiction to decide the present complaint and it has no branch office at there. It is further asserted that grievance of complainant is limited to alleged manufacturing defect, which can not be resolved by OP-1 as Op-1 is neither manufacture nor the seller of this product, rather OP-1 has been falsely dragged in present litigation. However, on merits, OP-1 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering opposite party and asserted that all the allegations levelled by complainant are false and fabricated and no financial loss or inconvenience is caused to him. He has prayed for dismissal of complainant.

5                          Notice issued to OP-2 and 3 through RC AD did not receive back in the office undelivered. Statutory period expire. Acknowledgment might have been lost in transit. Despite repeated calls, no body appeared in the Forum on date fixed on behalf of OP-2 and Op-3 either in person or through counsel to defend the case, thereafter after long waiting till 4.00 pm, OP-2 was proceeded against exparte vide order dated 15.11.2016 and Op-3 was proceeded against exparte on 8.11.2016.

6                                 Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence affidavit of complainant as Ex C-1 and document Ex C-2 to 4 and then, closed the evidence.

7                                 In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Rahul Sundaram as Ex OP-1,/A and documents Ex OP-1/1 to OP-1/3 and then, closed the same on behalf of OP-3.

8                                  We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

9                Ld Counsel for complainant vehementally argued that complainant purchased new Xiaomi Redmi Note 3(Gold. 32 GB) hand set for Rs.11,999/- from OP-2 through OP-1 vide invoice no KA-BLR6-14410504113110505 bearing order ID 4035654005-7573106 dated 25.05.2016 having warranty till 26.05.2017. It is contended that said mobile phone started giving problems just after purchase. In July, 2016 it started showing network signal problem and complainant had to select the network manually within short span of an hour. Besides it used to be hang mode and got switched on and off at its own and on 16.08.2016, it became dead automatically and did not switch on despite repeated attempts. Complainant contacted OP-1/Customer Care of Amazon for refund of cost price of mobile but they did not give any satisfactory reply. It is further contended that worst part on Redmi is that there is no service centre of Ops in district Faridkot and its nearby area. The product sold by Ops is of very low quality and it has inherent manufacturing defect and there is deficiency in service on the part of Ops in supplying such defective mobile handsets to customers. Ops have not come up to warranty provisions of handset and have even failed to redress his grievance. Repeated requests made by complainant for replacement of mobile bore no fruit. This act of OPs amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and mental tension to complainant. Complainant has prayed for directing OPs to replace the said mobile phone and to pay compensation alongwith litigation expenses.

10                                 To controvert the allegations levelled by complainant, ld counsel for OP-1 argued before the Forum that complaint is liable to be dismissed as it is filed on false and vague grounds. It is asserted that complainant is not the consumer of answering OP as complainant has not purchased the said handset from OP-1 nor he paid has paid any consideration for said handset to answering OP. It is averred that complainant purchased the mobile in question from an independent third party seller selling its products on website operated by OP-1 and thus, he is not the consumer of OP-1. It is asserted that OP-I has an online marketplace where independent third party sellers have listed their products for sale and OP-1 is neither a necessary not a proper party to the complaint. There is misunderstanding on the part of complainant that he considers himself to be consumer of OP-1. It is further averred that OP-1 acts like a facilitator and it has no role in any trading activity and moreover, mobile handset in question is neither manufactured by OP-1 nor it is sold by answering OP and thus, no cause of action arises against OP-1. Ld counsel for OP-1 stressed mainly on the point that no transaction occurred between complainant and OP-1 as complainant has neither paid any amount to them nor have they sold anything to complainant. The contract of sale and purchase of items traded over at website is strictly a contract between registered seller and the customer and both the parties are bound by the terms of conditions of use and there is no privity of contract between complainant and answering OP-1 and therefore, OP-1 is not responsible for any non-performance or breach of contract occurred between complainant and the seller. It is further averred that website of OP-1 is just a platform that enables to purchase products listed on website at the price indicated therein at any time from any location and it is just a facilitator and is not a party and can control any transaction on website and thus, contract of sale of products on website is a contract between complainant and the seller and OP-1 is not liable for any action or inaction of sellers or for any breach of conditions regarding warranty of products given by sellers and OP-1 cannot resolve any dispute between complainant and the seller or manufacturer of products. Complainant purchased the said mobile set from Op-2 and OP-3 is the manufacturer of this set and contract of this sale is between complainant and the seller and OP-1 is not involved in this sale transaction. Moreover, this Forum has no jurisdiction to decide the present complaint and it has no branch office at there. It is further asserted that grievance of complainant is limited to alleged manufacturing defect, which can not be resolved by OP-1 as Op-1 is neither manufacture nor the seller of this product, rather OP-1 has been falsely dragged in present litigation. OP-1 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering opposite party and asserted that all the allegations levelled by complainant are false and fabricated and no financial loss or inconvenience is caused to him. He has prayed for dismissal of complainant.

11               The case of complainant is that he purchased a mobile phone having one year warrantee from OP-2 manufactured by OP-3 through OP-1 against proper bill through online system and during the pendency of warranty period, said mobile phone started giving trouble to complainant as it did not show network signal and used to be hang mode and got off and on automatically without any command and when complainant brought this fact to the notice of OP-1, they did not give any satisfactory reply. Complainant made several requests to Ops to replace the said handset or to return the cost price of said mobile phone, but all in vain, which amounts to deficiency in service. To prove his case, complainant  has placed on record copy of bill Ex C-2 and has reiterated his pleadings through Ex C-1. On the other hand, stand of OP-1 is that complainant has not purchased the said mobile phone from them and there is no contract between complainant and OP-1 as said mobile is neither sold by them nor manufactured by them and thus, they are not liable for any defect occurring in said handset. Moreover, OP-1 is mere a facilitator and not the seller or the manufacturer of said phone. The actual grievance of complainant is against seller who sold the set and towards manufacturer and only OP-2 and 3 can are liable redress the grievance of complainant and can give effective service. There is no deficiency in service on the part of OP-1.

 12                            Ld Counsel for complainant argued that complainant placed order regarding mobile in question on the website of OP-1. At that time, there was no mention of third party seller.  The messages and e-mails regarding placement of order by him was sent by OP-1. He made payment for the product to OP-1 who further sent the messages regarding receiving the payment and confirmation of order and delivery of goods. Product was delivered by OP-1 at the address of complainant and nowhere the name of third party seller was mentioned.  All the transactions were directly made by complainant with OP-1 and payment was received by OP-1. The stand of OP-1  is that he is only a facilitator and all goods sold on their website are sold by independent sellers directly to the customers and they have nothing to do with their business and it is like online shopping mall where customers purchase products from different sellers and in case of any defect in the goods, the seller is liable for consequences and not the owner of the shopping mall. Further they receive payment on behalf of seller and they are not the ultimate beneficiary of this payment and they transfer the payment to third party seller. So, they are not liable for defect on behalf of third party seller and third party seller is only liable for the consequences thereof is not sustainable. The second objection of OP is that this Forum has no territorial jurisdiction to try and decide the present case as there is no branch office of OP within the territorial jurisdiction of this Forum. On this, complainant put reliance on citation 2014 (1) CLT titled as M D Air Deccan and others Vs Ram Gopal Aggarwal, Hon’ble Meghalaya State Commission Shillong held that where contracts for services and or goods are entered into over internet, for the purpose of Consumer complaints, part of cause of action arises interalia at complainant’s place of business. If acceptance of the contract is communicated to him through the internet, including the medium of e-mails, this is in addition to the other places where a consumer may choose to file a complaint in accordance with the provisions of S 11 of (2) of the Consumer Protection Act. So, this Forum has jurisdiction to try and hear this case.

13                                        From the careful perusal of evidence and record placed on file, it is observed that complainant purchased the mobile in question from OPs and he is facing some problem in using the same due to some inherent defects. Ex C-2 copy of invoice proves that complainant is the consumer of OPs.  As OP-3/Company is the manufacturer of mobile in question, therefore, it is their sole liability to supply thoroughly checked, defect free mobile phones to its customers.  It is observed that Ops are hand in gloves with each other as Op-1 is not only a facilitator, but it is also promoting and provoking the public to purchase the products of other Ops through their website.

14                                                In the light of above discussion and keeping in view the aforesaid facts and circumstances of the case, we are fully convinced with the pleadings and evidence led by complainant and therefore, complaint  in hand is hereby allowed. Ops are directed to replace the mobile phone in question with new one of same model or to refund the cost price of Rs.11,999/- of mobile phone in question. Ops are further directed to pay Rs.3000/-to complainant for harassment and mental agony suffered by him and Rs.1000/-as litigation expenses suffered by complainant. Compliance of this order be made within one month of date of receipt of the copy of this order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of the Consumer Protection Act. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Announced in open Forum:

Dated: 8.05.2017

Member                President                                          (P Singla)            (Ajit Aggarwal)