Tamil Nadu
South Chennai
CC/2/2021
P. Sasitharan - Complainant(s)
Versus
M/s Acer India, rep by its Managing Director - Opp.Party(s)
Party in Person
30 Mar 2023
ORDER
Date of Complaint Filed : 09.12.2020
Date of Reservation : 17.03.2023
Date of Order : 30.03.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No.02/2021
THURSDAY, THE 30th DAY OF MARCH 2023
P.Sasitharan,
No: 18/24, Zakaria Colony Main Road,
Kodambakkam,
Chennai - 600 024. ... Complainant
..Vs..
1.M/s. Acer India (Pvt.) Ltd.,
Represented by its Managing Director,
Embassy Heights 6th Floor,
No. 13, Magrath Road,
Bangalore - 560 025.
Karnataka, India.
2.M/s. Amazon India,
Represented by its Manager / Managing Director,
Registered Office at
Brigade Gateway, 8th Floor,
No. 26/1, Dr Rajkumar Road,
Malleshwaram (West),
Bangalore - 560 055,
Karnataka, India. ... Opposite Parties
******
Counsel for the Complainant : Party in Person
Counsel for the 1st Opposite Party : M/s. Savitha.G
Counsel for the 2nd Opposite Party : M/s. Unilegal Solutions
On perusal of records and after having heard the oral arguments of the Complainant in person and the Counsel for the 1st Opposite Party, we delivered the following:
ORDER
Pronounced by Member-I, Thiru. T.R. Sivakumhar, B.A., B.L.,
1. The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to replace the Laptop with 32GB RAM with the same features to the Complainant in good working condition or to refund Rs.64,990/- wih 12% interest from 07.02.2019 till the date of realization and to pay a sum of Rs.2,00,000/- towards mental agony, stress, pain, loss and damages suffered by the Complainant and to pay a sum of Rs.1,00,000/- towards unfair trade practice and deficiency in service along with cost of Rs.10,000/-.
2. The averments of Complaint in brief are as follows:-
The complainant was instigated through the opposite parties various online advertisements and tall clients boosting of their achievements in the field of electronic technologies and based on the opposite parties technical experience and the quality of the product as well as service rendered after sales, and also as it was informed by the 2ND opposite party in their online advertisement RAM could be upgradeable up to 32 GB in addition to the original 8 GB provided in the laptop, he had purchased ACER NITRO CORE i5 15.6 inch FHD laptop [ 8 GB / 1 TB HDD / Windows 10 Home / 4 GB Graphics / Black / 2.2 KG / NP515-51 B079JBB7KP9 ] on 07/02/2019. The seller of the said laptop was Appario Retail PVT LTD.As per the promise of the 2nd opposite party, he had purchased the said laptop by paying a huge amount of RS.64,990/-and a invoice was raised under NO. BLR5-2282819 with details KA-BLR5-1034-1819 dated 07/02/2019. The said sum was paid through net banking of state bank of India on the very same day. The said laptop was delivered on 09/02/2019 along with a warranty from the date of purchase. Initially the said laptop was functioning smoothly without any hinderance or any major problems. He was using the said laptop for his personal and office works regularly and as he was a freelance video editor for private YouTube channel, namely Wedding events, short films, Pilot films and other functional videos, of which he earned money hence he was in need of upgrading the RAM of the said laptop instead of 8 GB to 32 GB. He approached the nearest service center to handover the said laptop for RAM upgradation and it was informed by the service center that it was not possible to upgrade the RAM in the version of said laptop. Again, he approached the 1st opposite party’s Chennai center for RAM upgradation and after checking his laptop thoroughly it was informed by them that it was not possible to upgrade the RAM in his laptop and a wrong information was given by the opposite partied to him. He had invested a huge amount believing the advertisement given by the opposite parties with regard to the up gradation of RAM and after purchase and on the information given by the 1st opposite party’s Chennai service center, he come to know that up gradation of RAM could not be done in his laptop and a wrong advertisement was given by the opposite parties. Thereafter he had contacted the 1st opposite party for redressal explaining the problem faced by him, for which the 1st opposite party directed him to approach the 2nd opposite party informing that the 2nd opposite party’s online advertisement was wrongly conveyed to the customers. He had contacted the 2nd opposite parties over phone and explained the problem faced by him, after hearing the entire grievances they did not resolve his queries. Hence, he suffered heavy loss in earning money due to non-upgradable of RAM. As left with no other alternate he once again approached the 2nd opposite party, though heh was made to wait for long months, no service person nor the 2nd opposite party answered about the upgradation of RAM. Subsequently he had approached number of times to know about the status of upgradation of RAM, the 2nd opposite party had shouted at him that they cannot upgrade the RAM. As he could not upgrade the RAM or the laptop and the opposite parties were not able to rectify the defects he had approached the National Consumer Helpline through their website for his grievances and it was informed to him to file a consumer complaint against the opposite parties who had given wrong information through online and cheated all the customers including me, he had also sent a mail on 12/07/2020 to 1st opposite party about the up gradation of RAM, who had strictly informed that the up gradation of the RAM was not possible and it was the 2nd opposite party who had given wrong features to all the customers including me. It is clear that the opposite parties had committed unfair trade practice. Hence the complaint.
3. Written Version filed by the 1st Opposite Party in brief is as follows:-
They are engaged in the manufacture/import of desktop computer systems, servers, laptops, notebooks, monitors, projectors, tablet Pcs and supporting IT peripherals, and trading thereof, and provision of ancillary services connected there with. It is submitted that the complainant had purchased an ACER NITRO NP515-51 model laptop bearing serial No. NHQ2YSI012748058A56600 from the 2nd opposite party and the capacity of inbuild of the said laptop was only 16 GB additionally, it was a pre embedded on board memory architecture over the motherboard and therefore it could not be upgraded beyond its inbuilt capacity by anyone. However, it was advertised by the opposite parties in the web portal as “RAM: 8GB of DDR4 system memory, upgradeable to 32GB” and it is submitted that it was an inadvertent error and they sincerely regretted for having committed the same and also understood that its serious nature which caused harm to the complainant. The complainant did not issue a legal notice and in absence of legal notice being served they were not given an opportunity to verify the factual position at the present matter and as such they could not offer an option to the complainant for settling the dispute at its pre litigation stage itself. In spite of the same they are willing to settle the dispute with the complainant amicably. To bring an expeditious end to the above complaint and subject to the approval of this commission, they agreed to replace complainant’s existing laptop with an ACER branded new laptop of reasonably similar configuration which would be with 2 numbers of Dual In-Line Memory Module slots (DIMM Slots) with 16 GB RAM capacity on each DIMM slot and therefore, the maximum RAM capacity or memory of the new laptop shall be of 32GB, as desired by the Complainant , as a gesture of goodwill and towards the full and final settlement of the above compliant in order to arrive for an amicable settlement between them and the complainant. It is submitted that the return version filed by them would stand for amicably and expeditiously settling the present dispute and if the offer is not acceptable to the complainant, this commission may have to decide the matter on merits then they sought leave to submit a detailed reply on merits of the matter.Hence prayed to dismiss the complaint.
4. Written Version filed by the 2nd Opposite Party in brief is as follows:-
They do not sell any products or advertises any product or brainwashed the complainant to buy any product, as alleged or otherwise. Their role is the transaction in question is akin to the buyer having made a purchase from a shop/showroom (independent third party seller) in a shopping mall (e-commerce marketplace). For deficiency in services or defects in products purchased in the mall, the shop owner (independent third party seller) and/or the manufacturer is made liable and not the owner of the mall, who has no control on the sale transaction. Their status is similar to that of the mall owner and therefore they cannot be held liable for the representations of the independent third party sellers or for any deficiency in services rendered by such independent third party sellers. It is denied that the complainant approached them for buying any product or that they sell any they product or that they made any promises to the complainant or gave any warranty for any product, as alleged or otherwise. It is further denied that they sold any product to the complainant or received any consideration for the product or delivered any product to the complainant, as alleged or otherwise. It is submitted that the warranty of the product is always provided by the manufacturer of the product. The complainant has not annexed any terms and conditions of the warranty of the product. The Product has been bought by the Complainant from the Independent Third-Party Seller, i.e.. Appario Retail Private Ltd vide a tax invoice dated 07.02.2019 issued by the Independent Third-Party Seller, Le.. Appario Retail Private Ltd indicating its Income Tax Permanent Account Number (PAN) and Goods and Service Tax Number (GSTN) against the Invoice as AALCA0171E and 29AALCA0171E12V respectively, clearly evidencing that the Product was sold to the Complainant by Appario Retail Private Ltd. Accordingly, the Complainant doesn't fall within the definition of "consumer". They merely operates an e-commerce marketplace where independent third-party sellers can list their Products for sale and has no control over transaction by and between the seller and buyer and does not receive proceeds of the sales. The product was delivered to the complainant by the Independent Third-Party Seller, Le., Appario Retail Private Ltd, who has not been impleaded as a party to the present complaint. The Complainant himself contacted the service center of the manufacturer of the product as well as the manufacturer, evidencing that he was aware that the said defect could only be rectified by the manufacturer or the authorised service center. The complainant has rightly impleaded the manufacturer, Opposite Party No.1, but has failed to implead the concerned service center to the present complaint. The complainant has alleged that the authorised service center informed him that the said product cannot be upgraded and did not address any of the grievances of the complainant. The complainant has failed to annex any job sheet or service report from the concerned service center. They deny that they informed the complainant that they could change the defective product for him or told him to contact any service center, as alleged or otherwise, the complainant has failed to annex any proof to substantiate the said allegations. They deny that any advertisement was given by them, as alleged or otherwise. They deny that they are liable to resolve any issue with respect to the product, as alleged or otherwise. They deny that they they did not resolve any queries of the complainant, as alleged or otherwise. They merely operates an e-commerce marketplace and has no control over the independent transaction executed by and between the independent third party seller and Buyer and does not receive proceeds of the sale. All warranties and representations made on each of the product listings including but not limited to price, product features. warranty terms, service etc. are made exclusively and solely by such Independent Third-Party Sellers in agreement with the manufacturers of the products without any implication/liabilities on them/Answering Respondent herein. They do not privy to the communication between complainant and the concerned service center or the manufacturer. The complainant has failed to substantiate the said allegations. They deny that they made the complainant wait for months or that they had any conversation with the complainant regarding the upgrade of RAM or that they are liable to provide any upgrade of the RAM, as alleged or otherwise. The complainant has failed to annex any proof/documentary evidence of the said allegations. They deny that they are not guilty of unfair trade practice or has given any wrong features of the product, or is liable to provide an upgrade on the RAM or to rectify any defect, as alleged or otherwise. They deny any cause of action has arisen against them, as alleged or otherwise. They cannot be held liable to provide any replacement or refund or compensation for the defective product or for deficiency in service or be held liable for any issues that have arisen with respect to the product as they are neither the manufacturer/service provider nor the seller of the Product. Therefore, the allegations of the Complainant are not attributable to them. The Complainant is not entitled to any relief from them. The Complainant has failed to prove any deficiency on their part as the Complainant has not bought any goods from them nor the Complainant had paid any amount/ consideration to them. Hence prayed to dismiss the complaint.
4. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 to Ex.A-8. The 1st Opposite Party submitted their Proof Affidavit and Written Arguments. On the side of the 1st Opposite Party no document was marked. The 2nd Opposite Party having filed their Written Version, has not filed Proof Affidavit and their evidence was closed on 23.12.2022.
Points for Consideration
1. Whether there is deficiency in service on the part of the Opposite Parties?
2. Whether the Complainant is entitled for reliefs claimed?
3. To what other reliefs the Complainant is entitled to?
Point No.1:
It is an undisputed fact that the Complainant had purchased the 1st Opposite Party’s product, namely, ACER NITRO CORE i5 15.6 inch FHD laptop [ 8 GB / 1 TB HDD / Windows 10 Home / 4 GB Graphics / Black / 2.2 KG / NP515-51 B079JBB7KP9 ] on 07/02/2019 through 2nd Opposite Party. It is also not in dispute that a sum of Rs.64,990/- has been paid towards purchase of the above said product of the 1st Opposite Party.
The disputed fact of the Complainant is that having seen the advertisement online of the 1st Opposite party in the 2nd Opposite Party’s website that the RAM of the said product purchased could be expandable/ upgradeable from 8 GB RAM to 32 GB RAM and hence he had purchased the said product and when he required for upgradation of RAM from 8 GB to 32 GB due to his commitment towards earnings, met with an disappointment as the upgradation of RAM was not possible in the said product when it was confirmed by the 1st Opposite Party who advised to approach the 2nd Opposite Party for redressal. Having come to know about the same he sustained serious mental agony on having invested a huge amount towards the purchase of the said product on seeing the online advertisement, which is nothing but unfair trade practice on the part of the Opposite Parties and the Opposite Parties are liable to suitably compensate him.
The 1st Opposite Party contended and submitted that the advertisement given online by the 2nd Opposite Party was an inadvertent error and the capacity of inbuild of the said laptop of the Complainant was only 16 GB additionally, it was a pre embedded on board memory architecture over the motherboard and therefore it could not be upgraded beyond its inbuilt capacity by anyone. As, it was advertised by the opposite parties in the web portal as “RAM: 8GB of DDR4 system memory, upgradeable to 32GB” they realize the harm caused to the Complainant. As no legal notice was sent and served on them, opportunity to settle the issue amicably between them and the complainant at the pre-litigation stage itself could not be happened. They are ready and willing to settle the dispute with the complainant amicably and hence agreed to replace complainant’s existing laptop with an ACER branded new laptop of reasonably similar configuration which would be with 2 numbers of Dual In-Line Memory Module slots (DIMM Slots) with 16 GB RAM capacity on each DIMM slot and therefore, the maximum RAM capacity or memory of the new laptop shall be of 32GB, as desired by the Complainant, as a gesture of goodwill and towards the full and final settlement of the above compliant, subject to approval of this Commission and craved leave to submit a detailed reply on merits of the matter, if the offer is not acceptable to the complainant and when this commission would decide the matter on merits.
On discussions made above, it is clear the advertisement given online by the 1st Opposite Party through the 2nd Opposite Party’s website found to be a wrong one in spite of the error pleaded as inadvertent error by the 1st Opposite Party, being the manufacturer of the said product, but the said advertisement given online having induced the Complainant to purchase the said Laptop with a firm belief of upgrading the RAM upto 32 GB, who after purchase and when needed for upgradation found the same was not possible would have certainly suffered with mental agony after having a huge amount of Rs.64,990/-, though it may be a cheaper price for the 1st opposite party’s product but by placing advertisement in the 2nd Opposite Party platform would gain more sales of their product from all classes of family and from the persons those who really believe the product of the 1st Opposite Party of their technology and quality would have invested with firm belief that the RAM could be upgradeable, like the Complainant. Since it has been admitted by the 1st Opposite Party about the error committed with regard to the advertisement given online which could not be carried out, the offer of replacement of a new brand of their Laptop with 2 slots of 16 GB which would suit the Complainant’s requirement of 32 GB with specifications mentioned in their Written Version and during the arguments, the Complainant had expressed that as he had purchased another Laptop suiting his need, he need refund of the amount invested and purchased on a wrong advertisement which caused him monetary loss apart from mental agony, and further the Opposite Party should have taken the stand/measures that has been submitted before this Commission, when the Complainant had approached them through Ex.A-6 realizing the fault that had brought to their knowledge of the advertisement given online by the 2nd Opposite Party about their product, for which a reply Ex.A-7 has been sent to the Complainant.
On considering the facts and circumstances of the case, though the 1st Opposite party had agreed for replacement of the subject Laptop with that of the Laptop required by the Complainant, as it is not agreed by the Complainant as he had purchased a Laptop to his requirement and having invested a huge amount based on a wrong advertisement given by the Opposite Parties on upgradation of RAM on the model purchased by him, needs refund of the amount of the subject Laptop of the 1st Opposite Party purchased through the 2nd Opposite Party, hence by having posted a wrong advertisement about the product in the 2nd Opposite Party’s website and thereby induced the Complainant to purchase the subject product which is unfit for upgradation as advertised clearly amounts to Unfair trade practice and by not having accepted their fault and by not rectifying the fault of the Complainant in time, in spite of the wrong advertisement given in the 2nd Opposite Party’s website clearly amounts to deficiency of service, which resulted in serious mental agony and monetary loss to the Complainant. Therefore, this Commission is of the considered view that it is a clear case of unfair trade practice and deficiency of service committed by the 1st Opposite Party and the 2nd Opposite Party being an online platform for the promotion of the 1st Opposite Party’s product and further the 1st Opposite Party had not pointed out any unfair trade practice or deficiency of service on the part of the part of the 2nd Opposite Party, instead had admitted their error, the complaint against the 2nd Opposite Party is dismissed. Accordingly Point No.1 is answered.
Point Nos. 2 and 3:
As discussed and decided Point No.1 against the 1st Opposite Party, the 1st Opposite Party is liable to refund a sum of Rs.64,990/- in respect of Acer Nitro Core i5 15.6 inch FHD Laptop and to take back the said Laptop from the Complainant, and also to pay a sum of Rs.10,000/- towards deficiency of service and mental agony caused to the Complainant, along with cost of Rs.5,000/-. And the Complainant is not entitled for any other relief/s. Accordingly Point Nos.2 and 3 are answered.
In the result, the complaint is allowed in part. The 1st Opposite Party is directed to refund a sum of Rs.64,990/- (Rupees Sixty Four Thousand nine Hundred and Ninety Only) in respect of ACER NITRO CORE i5 15.6 inch FHD Laptop and to take back the said Laptop from the Complainant, also to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) towards unfair trade practice, deficiency of service and mental agony along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant, within 8 weeks from the date of receipt of order, failing which the above said amount of Rs.64,990/- shall carry interest @12% p.a from the date of order till the date of realization. Complaint against 2nd Opposite Party is dismissed.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 30th of March 2023.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 07.02.2019 | Invoice issued by the 2nd Opposite Party |
Ex.A2 | 08.02.2019 | 2nd Opposite Party issued the dispatched and payment confirmation to the Complainant |
Ex.A3 | - | 2nd Opposite Party online features and offers of the Laptop |
Ex.A4 | 21.10.2020 to 26.11.2020 | Complainant raised the online National consumer complaint against consumer complaint against the Opposite Parties |
Ex.A5 | 11.07.2020 | Complainant sent email to the 2nd Opposite Party for requesting upgradeable the RAM to 32GB |
Ex.A6 | 10.07.2020 | Complainant sent email to the 1st Opposite Party for requesting upgradeable the RAM to 32GB |
Ex.A7 | 15.07.2020 | 1st Opposite Party email replied to the Complainant |
Ex.A8 | 07.10.2020 | 1st Opposite Party email replied to the Complainant |
List of documents filed on the side of the Opposite Parties:-
NIL
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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