Delhi

East Delhi

CC/559/2016

SHREY DEWAN - Complainant(s)

Versus

MOBILE CARE - Opp.Party(s)

14 Aug 2019

ORDER

                         CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

                  CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                  

                                                                                                  Consumer Complaint no.          559/2016

                                                                                                  Date of Institution                   26/10/2016

                                                                                                  Order Reserved on                  14/08/2019

                                                                                                  Date of Order                           19/08/2019  In matter of

Mr. Shrey Dewan,       

R/o  86 RPS DDA Flats  

Mansarovar Park, Delhi 110032 …………………………..…………….Complainant

                                                                         Vs

1 M/s The Mobile Care (India)  

B 36,Guru Nank Pura, Opp. V3S Mall,

Laxmi Nagar, Delhi 110092  

 

2- M/s YU Televentures Pvt Ltd. 

21/14 Block A, Narayana Industrial Area  

Phase 2, New Delhi 110028

 

3-Amazon India

Brigade Gateway, 8^th Floor

26/1, Dr Raj Kumar Rd,

Malleshwaram (W), Bangaluru, 560055, Karnataka.…..……….Opponents

 

Complainant                                        In Person

Opponent’s Advocate 2&3               Kohli & Sobti Associates Advocates   

 

Quorum          Sh Sukhdev Singh      President

                         Dr P N Tiwari              Member

                         Mrs Harpreet Kaur    Member

 

Order by Dr P N Tiwari  Member 

Brief Facts of the case                               

Complainant purchased YU Yutopia YU5050 grey colored handset on 27/12/2015 through OP3/Amazon India, online portal, for a sum of Rs 24,999/-vide order no. 171-6978414-6846714 (Ex.CW1/ Anne.A). After using about 2 months, back camera got dislodged, so complained to OP2/YU customer care for replacement of said mobile.

OP2 told to contact their authorised service centre where  estimate of Rs 5260/ was given for camera repair, but complainant did not pay amount and demanded for replacement for new  mobile (Ex CW1/Anne.B). After some time, said mobile developed SIM detection problem, but OP2/service centre asked for repair cost which was again returned. It was stated that even after writing to OP2 for refund of the cost of his mobile which was under standard warranty was also refused. OP2 replied through email for service centre report and if not corrected, OP 2 would refund of the cost (Ex CW1/Anne.D). It was stated that even intimating OP3/Amazon for refund of the cost of mobile, but OP3 also  refused to refund the cost Rs 24,999/-(Ex CW1/Anne.E & F) when mobile was under warranty, so filed this complaint and claimed entire cost of said mobile Rs 24,999/- as there was manufacturing defect in the mobile.

OP 2 filed written statement and denied all the allegation of complainant and admitted that the said mobile was purchased on 27/12/2015 and after inspecting mobile, complainant was told to pay camera repair charges as it had physical damage for which estimate of Rs 5260/-was given which did not cover warranty, but complainant refused to pay. So, said mobile was returned. Hence the complaint was based on baseless and false allegations and thus complaint be dismissed.  

OP3/Amazon India submitted written statement through their Attorney (Anne. A & B) and stated that their services were based on terms and conditions (Anne.C). OP3 submitted that they were the third party online party and did not purchase or manufacture any product where many manufacturer use their platform and sell their product to customers and purchaser never pay any consideration, hence here was no privity of contract. It was stated that seller of the product was M/s Cloudtail India Pvt Ltd and said mobile (YU Yutopia YU5050-Grey) was purchased from seller. All the terms and conditions were provided by Yutopia. Hence there were no contact between OP3 and OP2. OP1 being a seller, did not put his appearance even after notices, so proceeded Ex Parte.

Complainant in his rejoinder denied replies submitted by OP2 & 3. He stressed that the said mobile had manufacturing defect and developed defects twice, but neither defects were rectified nor cost was refunded. He also submitted evidences through his own affidavit and reaffirmed on oath about his facts and evidences in complaint as true and correct. He relied on invoice of mobile (Ex. A) and service report from OP2 where estimate was given by OP2 whereas his mobile was under warranty (Ex B) and various emails sent to OP2 (Ex C to Ex. F).    

OP2 submitted their evidences on affidavit through Mr Mohd. Asad Shakeel, working as Sr. Legal Manager with OP2 and affirmed reply in their written statement and evidences submitted on record.  It was stated that mobile was under standard warranty, but camera was not covered in warranty, so OP2 had no deficiency in services and no liability be fastened.

OP3/Amazon also submitted evidence through AR Mr Rahul Sundaram who stressed on their exhibit OPW3/1 as power of attorney, all terms and conditions submitted as Ex. OPW3/2 & 3.It was stated that OP3 being an online platform for ecommerce and customer do not had any contact and as no contract established and no consideration was paid. OP3 also stressed that in this case the seller was M/s Claudtail India and manufacturer were M/s Topia who was not made as a necessary party. As manufacturer was not made a necessary party, hence no claim could arise from OP3. OP3 also stated that due to e-business model of Information Technology, such online platforms were existing for the benefit of consumers based on B2B transaction and there was no ownership system though warranty or guarantee of the goods sold through the open market, so responsibility rest on the seller. It was also stated that due to IT Act, 2000 which provides intermediary with an exemption from liability for any third party information, data or communication link made available or hosted by them. OP3 also cited some judgments based on IT Act 2000 as –

1. Kent RO Sysytem Ltd & others vs Amit Kotak & others, CS(COMM), 1655/2016 Delhi High Court, decided on 18/01/2017,
2. Vinay Narain vs L G Electronics India Pvt Ltd. & others in CC no. 270/2010, SCDRC Delhi.
3. Siddivinayak Knot & Prints Pvt Ltd vs Craft Villa & others, (NML) 2425/2015 in suit no 906/2015, Bombay High Court.

It was laid down in above citations that OP3 had no liability or deficiency in services. OP3 advised complainant to approach their authorized service center/OP2 and his hand set would be repaired and if parts were found defective then complainant had to produce evidence. In case of any manufacturing defect, goods/mobile would be replaced.  

Complainant submitted a copy of old job sheet and terms and conditions of different mobile which was taken on record.

Arguments were heard from complainant who was in person and counsels of OP2 & 3. After perusal of material on record, order was reserved.  

We have gone through all the facts and evidences on record. It has been observed that complainant had not filed any terms and conditions of warranty of his mobile and fresh job sheet as directed by OP3. Also he could not produce a single evidence of manufacturing defects in his mobile. As mobile had developed some problem under warranty, so we allow the complaint and pass the following order-

1. Complainant is directed to get his mobile repaired from OP2 and if any defective part is found, OP2 shall replace with original one and charge its genuine cost, but will not take any service charge.
2. OP2 shall facilitate six months extended warranty from the date of handing over mobile in perfect running condition.  
3. The compliance of the order shall be done within 30 days from the receiving of this order. There shall be no order to cost or compensation.
4. If order is not complied in time essence then OP1 and OP2 jointly refund cost of mobile with 6% interest per annum from the date of order till realized.

The first free copy of this order be sent to the parties as per the Section 18 (6) of the Consumer Protection Regulation, 2005 ( in short CPR)  and file be consigned to the Record Room under Section 20 (1) of the CPR.

 

(Dr) P N Tiwari –Member                                                                      Mrs Harpreet Kaur – Member

                                                         Sukhdev Singh  President