Order dictated by:
Ms.Rachna Arora, Member
1. Vattandeep Singh, complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant booked one mobile phone make Motor G Plus, 4th Gen (Black, 32 GB) through Amazon Seller Services Pvt.Ltd. i.e. opposite party No.2 vide booking order No. 402-9350045-5059563 dated 1 October 2016. The said mobile phone was delivered to the complainant on 7 October 2016 at his residential address having IMEI No. 358223072509298. The price of the said phone was Rs. 13,499/-. The said phone was having guarantee/warranty of one year . After some days of purchase the said mobile phone started showing defect. The complainant approached opposite party No.1 & 2 and brought the defects in the mobile phone to their notice, who told the complainant to approach opposite party No.3. The complainant approached opposite party No.3 and handed over the mobile phone for removing the defect, who issued receipt dated 16.1.2017 and the name of the defective part was duly mentioned in the said receipt. Opposite party No.3 kept the mobile phone with them for many days and assured the complainant that they will clear the defect but failed to clear the defect. Again the complainant approached opposite party No.3 and requested them to clear the defect of the mobile phone as it was not functioning properly as it was facing ringer/speaker problem . Again opposite party No.3 took the mobile phone from the complainant and issued receipt dated 14.2.2017 and asked the complainant to collect the mobile phone on 25.2.2017. In the receipt issued by opposite party No.3 defect of the mobile phone has duly been mentioned. The complainant again approached opposite party No.3 on 25.2.2017 and opposite party No.3 handed over the mobile phone to the complainant by saying that they have cleared the defect. But the defect in the mobile phone has not been cleared by the opposite party No.3 as the mobile phone was showing the same problem i.e. ringer/speaker, loud speaker . As such complainant again approached opposite party No.3 and requested them to clear the defect of the mobile phone as the same was within the warranty period. Again opposite party No.3 took the mobile phone from the complainant on 4.3.2017 and issued receipt dated 4.3.2017 and told the complainant to collect the mobile after few days. It is pertinent to mention here that as and when the opposite party No. 3 handed over the mobile phone to the complainant, it always showing new defect. The complainant again approached opposite party No.3 and requested them to return his mobile phone after removing its defect but the opposite party No.3 told the complainant that the defect will not be cleared. As the mobile phone is within warranty period , as such the complainant approached opposite party No.1 through phone and requested them to replace the mobile phone, but opposite party No.1 flatly refused to replace the mobile phone of the complainant. Vide instant complaint, complainant has sought for the following reliefs :-
(a) Opposite parties be directed either to replace the mobile phone with new one or to refund the price of the same alongwith interest ;
(b) Compensation to the tune of Rs. 25000/- alongwith litigation expenses be also awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite party No.2 appeared and filed written version in which it was submitted that replying opposite party neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective listings and products on the website. The complainant placed an order for one Motor G Plus bearing order Id 402-9350045-5059563 on 1st October 2016 from the seller on the website of the answering opposite party .In the instant case, the complainant has alleged that soon after the purchase, the product started having certain defects and the complainant approached opposite party No.3 i.e. Motorola Service Centre for getting the product repaired , but the same was not done. As per the return policy of the answering opposite party, the mobile phones, whose delivery is fulfilled by the replying opposite party, are not eligible for any refund. In the instant case, the complainant never contacted the answering opposite party with any alleged defects in the product . The goods have been bought by the complainant from the independent third party seller selling its products on the website operated by the replying opposite party. Accordingly, the complainant does not fall within the definition of “consumer”. Opposite party No.2 is neither a necessary nor a proper party in the complaint. The defects alleged in the present complaint, cannot be attributed to the replying opposite party. While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite parties No.1 & 3 did not opt to put in appearance despite service, as such they were ordered to be proceeded against ex-parte.
4. In his bid to prove the case, complainant tendered into evidence his duly sworn affidavit Ex.C-1, copy of shipping address Ex.C-2, copy of price tag Ex.C-3, copy of order summary Ex.C-4, copy of moto service record/job sheet Ex.C-5, copy of job sheet Ex.C-6, copy of job sheet Ex.C-7, copy of order details Ex.C-8 and closed the evidence.
5. On the other hand Sh.Mohan Arora,Adv.counsel for opposite party No.2 tendered into evidence duly sworn affidavit of Sh.Rahul Sundaram,Authorized signatory Ex.OP2/1, copy of authority letter Ex.OP2/2, copy of resolution dated 5.11.2016 Ex.OP2/3, copy of conditions of use of Amazon Ex.OP2/4 and closed the evidence on behalf of opposite party No.2.
6. We have heard the complainant as well as ld.counsel for opposite party No.2 and have carefully gone through the record on the file.
7. On the basis of the evidence on record, complainant has vehemently contended that he booked one mobile phone make Motor G Plus, 4th Gen (Black, 32 GB) through Amazon Seller Services Pvt.Ltd. i.e. opposite party No.2 vide booking order No. 402-9350045-5059563 dated 1 October 2016. The said mobile phone was delivered to the complainant on 7 October 2016 at his residential address having IMEI No. 358223072509298. Copy of delivery receipt is Ex.C-8 on record. The price of the said phone was Rs. 13,499/-. The said phone was having guarantee/warranty of one year . It was the case of the complainant that after some days of purchase the said mobile phone started showing defect. The complainant approached opposite party No.1 & 2 and brought the defects in the mobile phone to their notice, who told the complainant to approach opposite party No.3. The complainant approached opposite party No.3 and handed over the mobile phone for removing the defect, who issued job sheet dated 16.1.2017 and the name of the defective part was duly mentioned in the said receipt, copy of job sheet accounts for Ex.C-7 on record. As per complainant version, opposite party No.3 kept the mobile phone with them for many days but failed to clear the defects. Again the complainant approached opposite party No.3 and requested them to clear the defect of the mobile phone as it was not functioning properly as it was facing ringer/speaker problem . Again opposite party No.3 took the mobile phone from the complainant and issued job sheet dated 14.2.2017 and asked the complainant to collect the mobile phone on 25.2.2017, copy of job sheet is Ex.C-6 on record. In the receipt issued by opposite party No.3 defect of the mobile phone has duly been mentioned. It was further the case of the complainant that opposite party did not remove the defects in the mobile handset as the mobile phone was showing the same problem i.e. ringer/speaker, loud speaker . As such complainant against approached opposite party No.3 , who took the mobile phone from the complainant on 4.3.2017 and issued job sheet dated 4.3.2017, copy of job sheet is Ex.C-5 on record and told the complainant to collect the mobile after few days. But even then the defects could not be removed . The complainant again approached opposite party No.3 and requested them to return his mobile phone after removing its defect but the opposite party No.3 told the complainant that the defect will not be cleared. As the mobile phone is within warranty period , as such the complainant approached opposite party No.1 through phone and requested them to replace the mobile phone, but opposite party No.1 flatly refused to replace the mobile phone of the complainant.
8. On the other hand ld.counsel for opposite party No.2 has vehemently contended that opposite party neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective listings and products on the website. It was submitted that complainant placed an order for one Motor G Plus bearing order Id 402-9350045-5059563 on 1st October 2016 from the seller on the website of the answering opposite party and the product was duly delivered to the complainant . It has further been contended that as per the return policy of the answering opposite party, the mobile phones, whose delivery is fulfilled by the replying opposite party, are not eligible for any refund. Accordingly, the complainant does not fall within the definition of “consumer”. Opposite party No.2 is neither a necessary nor a proper party in the complaint. The defects alleged in the present complaint, cannot be attributed to the replying opposite party.
9. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant placed an order for purchase of one mobile phone make Motor G Plus, 4th Gen (Black, 32 GB) through Amazon Seller Services Pvt.Ltd. i.e. opposite party No.2 vide booking order No. 402-9350045-5059563 dated 1 October 2016. The said mobile phone was delivered to the complainant on 7 October 2016 at his residential address having IMEI No. 358223072509298. Copy of delivery receipt is Ex.C-8 on record. It was the case of the complainant that after some days of purchase the said mobile phone started showing defect for which the complainant approached opposite party No.3 many times i.e. on 16.1.2017 , 14.2.2017 as well as 4.3.2017 for which dates the opposite party No.3 issued job sheets to the complainant which are Ex.C-7, Ex.C-6 and Ex.C-5 respectively. But opposite party No.3 failed to remove the defects occurred in the mobile handset during warranty period and as per version of the complainant, opposite party No.3 finally told the complainant that the defect of the mobile phone will not be cleared. As such complainant has approached opposite party No.1 , who flatly refused to replace the mobile phone. On the other hand the evidence adduced by the complainant has gone unrebutted on record because, despite service, opposite parties No.1 & 3 did not opt to appear & contest the claim of the complainant thereby admitted the case of the complainant. As opposite parties No.1 & 3 have failed to set right the mobile handset nor they have even replaced the mobile handset or returned the amount of Rs. 13,499/- i.e. sale price thereof to the complainant. As the complainant by producing evidence has proved that the mobile handset became defective soon after the purchase and the opposite parties No.1 & 3 have failed to rebut the aforesaid evidence, as such opposite parties No.1 & 3 are liable either to replace the mobile phone of the complainant or to refund the price of the same. As the opposite party No.2 has duly delivered the mobile phone to the complainant being online marketplace, as such opposite party No.2 has provided its services to the complainant, for which opposite parties No.1 & 3 listed their products for sale. As such opposite party No.2 after delivery of the product has no role to play. It was not the case of the complainant that he has not received the product. Rather the case of the complainant is regarding the product which he has received through opposite party No.2 is suffering from various defects. As such no liability can be fastened upon opposite party No.2 and complaint against opposite party No.2 is liable to be dismissed.
9. Consequently, the opposite parties No.1 & 3 are directed either to replace the mobile handset of the complainant with same make or model or to refund the price of the mobile handset in dispute to the tune of Rs. 13,499/- to the complainant. As the complainant has to suffer in the hands of the opposite parties by approaching them for removing the defects occurred in the mobile handset, as such opposite parties No.1 & 3 are directed to pay compensation to the tune of Rs. 2000/- while litigation expenses were assessed at Rs.1000/-. However, complaint against opposite party No.2 is dismissed . Compliance of this order be made within a period of 30 days from the date of receipt of copy of order; failing which complainant shall be entitled to interest @ 9% p.a. from the date of filing of the complaint till realization . Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 2.8.2017
