Orissa

Cuttak

CC/47/2020

Debi Prasad Kanungo - Complainant(s)

Versus

M/s Amazon Seller Service Pvt Ltd - Opp.Party(s)

S K Kanungo & associates

11 Jul 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                     C.C.No.47/2020

Debi Prasad Kanungo,

S/o:Late Babaji Charan Sahoo,

At:Royal Towers, 2^nd Floor ,Link Road Square,

HDFC Life Insurance,PO/PS:Madhupatna,

Town/Dist:Cuttack.                                                                                   ... Complainant.

        

                                                Vrs.

1.         M/s. Amazon Seller Services Private Limited,

At:Brigadi Gate Way,

8^th Floor,26/1, Dr. Rajkumar Road,

Malleswaram(W),Bangalore-560055,Karnataka.

 

2.      M/s. Cloudtail India Private Limited,

GMR Airport City, Survey No.99/1,Mamidipally Village,

           Shamshabad,Hyderabad-500108

            Telengana

  

3.      M/s. Casio India Co. Ltd.,

First Floor,Mohan Co-Operative,

Industrial Estate,Mathura Road,

New Delhi-110044                                                   ....Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    24.06.2020

Date of Order:  11.07.2022

 

For the complainant         :   Mr. S.K.Kanungo,Adv. & Associates.

For the O.P No.1                :   Mr. J.Saini,Adv. & Associates.

For the O.P No.2                :                  None.

For the O.P No.3                :    Mr. S.K.Mohapatra,Adv. & Associates.       

 

Sri Debasish Nayak,President  

            The case of the complainant in nutshell is that he had  purchased a wrist watch after viewing the advertisement of the O.P No.1”Casio Edifice Stopwatch Chronograph Multi-Colour Dial Men’s Watch-EFR-539SG-1AVUDF(EX 188)”.  He placed order online and had paid the consideration amount of Rs.9,895/-.  After getting the said watch and using it, he noticed defect in the said watch for which he had sent the watch to the authorized repair centre for getting it repaired.  Quite interestingly the watch was returned back by the Casio Care Centre of O.P No.3 without being repaired with a remark that the repair has been cancelled since because the product is not that of Casio India Company Pvt. Ltd. and also being ‘out of warranty’.  It is thus alleged by the complainant that the O.Ps have committed deficiency in service and had practised unfair trade for which even after sending legal notice to them he had to file this case seeking cost of the wrist watch to the tune of Rs.9,895/- from the O.Ps together with compensation to the tune of Rs.50,000/- towards his mental agony and loss and has also demanded from the O.Ps a sum of R.20,000/-towards his litigation expenses.

            The complainant has filed copies of documents to support his case.

2.         Out of the three O.Ps, the O.P No.2 having not contested this case have been set exparte vide order dt.25.4.22.   However, O.Ps No.1 & 3 have contested this case and have filed their respective written versions separately together with certain copies of documents in order to prove their respective stand.  It is noticed that O.P No.1 in his written version has provided a catena of decisions to support his stand.  O.P No.1 admits about the watch of the complainant being returned without being repaired since because the said watch was not their product and was also being out of warranty.  As it appears from the written version of O.P No.1, it is the other O.Ps who should have been held responsible and not O.P No.1.  According to O.P No.1, the complainant had not approached this Commission with clean hands for which he has relied upon a decision in the case of Paramananda Tripathy Vrs. Bank of Baroda published in 1992(3) CPJ 231 and another decision in the case of Amrik Singh Vrs. M/s. United India Insurance Co. Ltd.  published in 1993(2) CPR-203.  He has also relied upon another decision in the case of Rakesh Kumar Sharma  Vs. ICICI Prudential Life Insurance Company Ltd. and another in revision petition no.4535 of 2013 decided on 4.3.14 by the Hon’ble National Commission wherein it is held that “Where there are allegation of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided by a Consumer Fora, proceedings before which, are summary in nature..........”.  As per the presumption of O.P No.,1, he being an E-Commerce Entity who provides online platform only, is in no way connected to the transaction inbetween the buyer and the seller for which he has relied upon a decision in the case of Sonia Sethy Vrs. One Plus & Anr. In C.C.Case No.469 of 2016.  O.P No.1 has drawn attention in his written version towards the Doctrines of Privity and has relied upon the case of  M.C.Chacko Vrs. State of Travancore published in AIR 1970 SC 504 and in the case of RCI India Pvt. Ltd. Vrs. Parthasarathi in Revision Petition No.443 of 2007.  Thus according to O.P No.1, the complainant has no cause of action, his case is not maintainable and thus is liable to be dismissed.

            O.P No.3 has also filed his separate written version wherein it is contended that the case of the complainant is not maintainable.  The watch in question is a non-Casio product and there was no warranty even thus it cannot be said that the O.Ps  are deficient in their service and had practised unfair trade.  Thus, it is prayed in the written version of O.P No.3 to dismiss the complaint petition as filed.

            O.P No.3 has also filed certain documents to prove his stand.

3.         Keeping in mind the contentions of the written versions as well as that from the complaint petition, this Commission is of a view to settle the following issues in order to arrive at a just and proper conclusion here in this case.

            i.          Whether the complainant had a cause of action to file this case?

            Ii          Whether the case as filed by the complainant is maintainable?

            iii.        Whether the O.Ps had committed deficiency in their service?

            iv.        Whether the O.Ps had practised unfair trade?

            v.         Whether the complainant is entitled to the reliefs as claimed?

Issues No.3 & 4.

            Out of the above issues, issues no.3 & 4 being the two pertinent issues are taken up together first for the sake of convenience here in this case.

            As per the xerox copies of the tax invoice/bill of supply, cash memo vide Annexure-1 as provided by the complainant, it is noticed that the same reflects the Casio Edifice Stopwatch Chronograph Multi-Colour Dial Men’s Watch-EFR-539SG-1AVUDF(EX 188)”and the consideration amount is Rs.9,895/- and the same has been purchased through Amazon.in i.e., through the O.P No.1.  Annexure-2 reflects that the said watch was sold by O.P No.2 to the complainant.  Annexure-3 reflects that the repair of the watch in question was cancelled since because, it is not a Casio product and also it was out of warranty.  The plea that the watch in question is a non-Casio product when scrutinized thoroughly, it is noticed that the said watch in question was purchased by the complainant from O.P No.2 through O.P No.1.  It is not the plea of the O.Ps that the watch given for repair is a different one from the watch as purchased by the complainant through them.  Moreso, the plea as taken by the O.Ps and more specifically by O.P No.3, that the watch in question could not be repaired being out of warranty gains no corroboration from any documentary evidence.  The annexure as filed by O.P No.3 together with written version as regards to warranty period, do not reflect the specific period of warranty and more particularly the specific date as to when the warranty period incase of the said watch in question had lapsed.  O.P No.1 even though is an E-Commerce platform and is providing online platform enabling the buyer and the seller to have their transaction; cannot be said to be not responsible since because it is the duty of the said online platform to ensure the proper and correct address of the seller/manufacturer and repairer and to see that fair trade is made.  When the watch in question was purchased by the complainant from O.P No.2 through O.P No.1 after payment of consideration amount and the same developed some defects, when sent for repair to the service centre of O.P No.3 and by returning the same without repair it can never be said that the O.Ps are free from committing any deficiency in their service and that they had not practised unfair trade.  As such, this Commission arrives here at irresistible conclusion that the O.Ps are liable for committing deficiency in their serviced by not repairing the watch of the complainant which was purchased through them and thus they have also practised unfair trade.  Accordingly these two issues are answered against the O.Ps and the decisions thus relied upon by O.P No.1 in this context does not hold good to the present facts and circumstances of the case in hand and that there is no complain of forgery, cheating or fraud.

Issues No.1 & 2

            From the above discussions, when the purchased watch of the complainant could not be repaired and was returned without being repaired on the plea of out of warranty.  The complainant had a definite cause of action to file this case and thus his case is definitely maintainable.  Accordingly, these two issues are answered in favour of the complainant.

 

Issue No.5.

            Complainant is thus found to be entitled to the reliefs as claimed by him.  Hence it is so ordered;

                                                            ORDER

            The case is decreed on contest against the O.Ps No.1 & 3 and exparte against O.P No.2.  All the O.Ps are found jointly and severally liable in this case.  The O.Ps are thus directed to return the cost of the watch i.e. Rs.9,895/- as paid by the complainant along with interest @ 9% per annum since 4.1.19 till the final amount is quantified.  The O.Ps are further directed to pay a sum of Rs.10,000/- towards the mental agony and sufferings of the complainant and a sum of Rs.10,000/- towards the litigation cost of the complainant.  This order is to be carried out within a month hence.

Order pronounced in the open court on the 11^th day of July,2022 under the seal and signature of this Commission.

                                                                                                                                                                                                     

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                                                                                                                                                              Sri Sibananda Mohanty

                                                                                                                                Member