Date of filing:28.10.2022
Date of Disposal:29.11.2022
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 29th DAY OF NOVEMBER, 2022
CONSUMER COMPLAINT NO.1675/2019
PRESENT:
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SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR:MEMBER
Mr. Vinay Eathiraj
S/o Eathiraj
Aged : Major
R/at No.28 1st Cross
Lawyer Layout
Bannerghatta Road
Bengaluru 560 083……COMPLAINANT No.1
Smt. Uma Eathiraj
W/o EathirajSri Manoj K.L
Aged : Major
R/at No.28 1st Cross
Lawyer Layout
Bannerghatta Road
Bengaluru 560 083
Proprietor of
M/s UV Engineers ……COMPLAINANT No.2
(Sri KR Srinivasa Adv. For complainants)
M/s Amazon Seller Services Pvt. Ltd..,
Amazon Registered office
Amazon India
Brigade Gateway
No.26/1, 8th floor
Dr. Rajkumar Road
Malleshwaram (West)
Bengaluru 560 055
Represented by
Sri Amit Agarwal
Sr.VP Amazaon and Country
M/s The peripheral Store
No.17, Hombisilu, 4th Main
AECS Layout, RMV 2nd Stage
Near Rajmahal School
Sanjayanagar,
Bengaluru 560 094
Represented by Mr. Amit
M/s Landmark Infotech
No.4/1, Ground Floor
PP Lane, 4th Cross, SP Road
Bengaluru 560 002
Represented by its Manager… OPPOSITE PARTY No.3
M/s Kaizen Info Service Pvt. Ltd.,
No.5, 1st Floor
Express New City Complex No.13
NR Road
Bengaluru 560 002
Represented by its Manager.… OPPOSITE PARTY No.4
(Sri Pradeep BV Adv. For opposite party-1)
(Sri Ashwin S. Halady Adv. For opposite party-2)
(Opposite party No.3: In person, Opposite party No.4: Exparte)
*****
//JUDGEMENT//
BY SRI. RAJU K.S, MEMBER
The complainants have filed this complaint u/s 12 of the Consumer Protection Act 1986 seeking for a direction to the Opposite parties to pay Rs.6,20,628/- with interest at 18% per annum from the date of receipt of defective product and litigation cost.
2. The case of the complainants that, the complainant No.1 is a software engineer and he worked for a reputed multinational company in Bangalore. In order to purchase a graphic card called “MSI Gaming GE Force RTX 2080 Ti”, he has booked for the product from Opposite Party’s web site on 26.06.2018 by paying Rs.1,20,628/- to the opposite parties. Opposite Party No.1 has raised invoice No.IN1648 after receiving a sum of Rs.1,20,628/-. The complainant No.1 booked the above said product in the name of complainant No.2, who is the mother and proprietor of M/s UV Engineers. Opposite party No.1 has delivered the product on 27.06.2019. Complainant No.1 wanted to use the said card for the purpose of a project competition called “Machine learning and Artificial Intelligence project’ wherein the complainant No.1 had to exhibit his skill on the subject. For this purpose the complainant No.1 had purchased high end desktop, CPU motherboard along with the graphic card by spending more than Rs.3.5 lakhs. The Complainant No.1 adjusted fund by taking salary advance of Rs.2.5 lakhs and by selling his four wheeler car. The opposite party No.1 has sold this graphics card by raising invoice dated 25.06.2019 in the name of opposite party no.2. At the time of selling the graphics card opposite party no.1 had given assurance that the product has 100% purchase protection and who has 10 days replacement period if it has any defect. Further the complainant has inserted the said graphics card into in to the mother board of the computer and found that it was not in working condition and was defective.
3. Immediately the complainant No.1 had registered a complaint on 07.07.2019 through opposite party No.1’s website, since it was in 10 days replacement period. The Opposite party No.1 has replied by sending mail by seeking apology for the product received that it was not in working condition and requested the complainant to selfship the product to the sellers address shown in the invoice. Accordingly the complainant approached Opposite party No.2 on 08.07.2019 with product but the opposite party No.2 had refused to receive the product by saying that he did not receive any complaint from the opposite party in this regard. Then the complainant No.1 contacted the customer care of opposite party no.1 through phone and opposite party No.1 asked to keep the product and it would raise complaint with the seller. Inspite of persistent contact, all the times opposite party No.1 assured to replace the product and failed to fix the issue.
4. On 13.07.2019 the representative of opposite party no.1 sent an email asking the complainant No.1 to contact MSI Service centre to get a denial service certificate. Again on 18.07.2019 opposite party No.1 regretted for the inconvenience caused and on the same day opposite party No.1 sent another mail and stated that has transferred the issue to the concerned seller and requested to provide details if any mail been received from the opposite party No.2. On 20.07.2019 one TPS Technologies from the opposite party No.2 replied from opposite party No.1 website that it would help to get replacement of the product and requested time to solve the issue. On 23.07.2019 the opposite party No.2 has sent another mail and repeated the above assurance.
5. On 04.09.2019 opposite party No.1 had sent another mail by stating that even if the complainant reported the issue in the 7 day return window, Op-1 needs a proof from the manufacturer. Inspite of repeated emails conversations the opposite parties did not solve the issue with regard to the replacement of the defective product. Opposite party No.1 and 2 on 31.07.2019 came up with a request that complainant No.1 shall visit to opposite party No.4 service centre. They simply dodged the process by sending mail after mail without resolve the issue. Because of this the complainant failed to participate in the project competition and sustained monetary loss, and lost his carrier opportunities. The act of the Opposite parties amounts to unfair trade practice and they are liable for deficiency of service to the complainants and sought to allow the complaint as sought.
6. Opposite party No.1 admitted the transaction between the complainants and opposite parties. Further, opposite party No.1 has taken specific contention that the Amazon Sellers Services Private Limited is a E-platform which provides the platform for the both sellers and vendors. Further the opposite party No.1 has stated that the product has been manufactured by MSI (“manufacturer”) who has not been made as party to the present complaint. The transaction for the product has been entered into between the complainant and the independent third party seller and they are abide to the conditions of sale. Further the vendor and seller at the time of registering on the website, agreed to the conditions of the opposite party No.1 by a contract of sale of products through their web site. The opposite party-no1 is a nodal centre in which the complainant has made payment to his account and same was transferred to Opposite party no.2 account. Any replacement has to be made by the opposite party no.2. The complainant has failed and neglected to submit his product on a technical evaluation to the seller within 10 days, which is absolutely contrary to the agreed terms. The complainant cannot be allowed to declare the product defective on his own accord without a technical expert report. Opposite party No.1 is providing an intermediary service to the complainant as well as Opposite party No.2 and he has no interest in the issue. For any defective product replacement the Opposite party No.2 is liable and the opposite party No.1 cannot be held liable for the manufacture defect and any commission of acts and omission is attributable to the seller and the manufacturer. Hence sought for dismissal of the complaint.
7. Opposite Party-2 admitted the purchase of product by the complainants. Further the opposite party No.2 has stated that as a seller it is abide by the policy of Opposite party No.1 regarding sale, shipment, return and replacement of the product. Whenever a buyer intends to get a replacement of the product because of the reason that a product was defective and it is covered under the replacement policy, within the replacement period the buyer has to raise the formal replacement request through Opposite party No.1, which gets directed to opposite party No.2 upon receipt of such request. Unless such replacement request is made by the buyer through some Login Credential through which such product was ordered, seller does not have right to replace such product. It the buyer wants for the replacement and the buyer places the request for replacement within replacement window, within such replacement, gets auto approved from the Amazon and after approval it gets directed to seller to proceed ahead with replacement. In this case, no such notification of approval for replacement was received by the Opposite party no.2. Hence it has no right to replace the product. Further the particular order is covered under easy ship mode of Logistics and in such case the product is to be shipped, delivery reverse packages in case of replacement, and reshipment has to be done monetarily by logistic support provided by opposite party No.1. Seller has no right to use any third party under carrier service for the reshipment of the product. Hence sought for dismissal of the complaint against it.
8. Opposite party No.3 has admitted that it has provided logistic service to MSI and as per the instructions it has delivered the product in question to the complainant. On 24.07.2019 was the last working day to providing any logistic service to the MSI. In case any of the consumers of the MSI arrives after 2 pm such consumers are directed to the new collection point as directed by MSI.
9. Complainant No.2 has filed affidavit in the form of her evidence and got marked Ex. P1 to P10 documents with original graphic card product as MO-1. Complainants filed written arguments with citations. Opposite party No.3 has filed his written arguments.
10. On the basis of the pleading and documents, the points that would arise for consideration are as under:
i) Whether the complainants prove the deficiency of service on the part of the opposite parties?
ii) Whether the complainants are entitled for the reliefs as sought in the complaint?
iii) What order?
11. Our findings on the aforesaid points are as follows:
Point No.1 : In affirmative.
Point No.2 : Partly in affirmative.
Point No.3 : As per the final order for the following;
REASONS
12. POINT NO.1:- It is admitted fact that the complainant No.1 has purchased GE Force RTX 2080 Ti 11 B GDRR6 Triple Fa 352 –bit VR ready graphics card (RTX 2080 Ti Gaming X Trio) by paying Rs.1,20,628/- to the opposite party No.2 through opposite party No.1 platform on 25.6.2019 (Ex. P2). Opposite party No.1 has raised Tax Invoice dated 25.06.2019 to that effect. Further it is also undisputed fact that the product was delivered on 27.06.2019. Further after insertion of the above said card to the complainant computer CPU found defective and was not in working condition. It is also undisputed fact that the complainant has raised this issue to the Opposite party No.1 customer care. For that the Opposite party No.1 has replied by email dated 07.07.2009 as per Ex P5 and sought apology that the product received by the complainant was found defective, and further assured that it would resolve the issue immediately. Inspite of email conversation between complainant No.1 and Opposite party No.1 dated 07.07.2019, 08.07.2019, 13.07.2019 and 18.07.2019 the Opposite party No.1 has simply expressed his regrets and failed to solve the issue. Instead of solving the issue, Opposite party No.1 gave false assurances to approach other Opposite parties. The Opposite party No.2 has admitted that the product was defective vide his email dated 20.07.2019. But failed to replace the defective product. Once again on 23.07.2019 the Opposite party No.1 regrets about the inconvenience caused and requested the complainant to share details of the product serial number with invoice copy. The Opposite party No.2 has refused to return the defective product as directed by the Opposite party No.1 on 08.07.2019. Opposite party No.2 requested the complainant to visit along with invoice the Opposite party-No.4 which is the service centre of Opposite party No.2.
13. The Opposite party No.1 along with other Opposite parties has made complainant to run from pillar to post for resolving the issue of defective product. The Opposite party did not resolved the issue after receiving the complaint from the complainant no.1. Opposite party No.1 as a intermeddler has to provide the information relating to return, refund, exchange, warranty and guarantee delivery and shipment and grievance redressal mediation. The specific objection raised by the Opposite party No.1 that he is not involved in the transaction between the complainant, seller and manufacturer, and the complainants have accord to bound the terms and conditions while using Opposite party no.1 website. This version of the Opposite party No.1 is not at all substantiated by any documents or law. The Opposite party no.1 cannot simply wash his hands by casting the liability on Opposite party No.2. Being the facilitator of e-commerce between seller and purchase he has bounden duty to look for genuine transaction. Admittedly in this case the manufacturer is not to made a party to the proceedings.
14. In addition to that the Opposite party No.1 is liable under Section 2(1) (r) of Consumer Protection Act 1986 for unfair trade practice and deceptive practice. In this complaint the court commissioner report Ex P10 clearly states that the product purchased by the complainant is defective. Even the Opposite parties also not disputed about the defect in of the product purchased by the complainants. Opposite party No.1 should have initiate proceedings immediately to replace the defective product after receiving the complaint from the complainants. Admittedly in this case there is 10 days period for replacement of any defective product. The complainant received the product on 27.06.2019 and raised the complaint on 07.07.2019 within 10 days of the replacement period. The Opposite parties have to replace the defective product immediately as stated by the Opposite party No.1 website. Opposite party No.2 took specific contention in para 5 and 6 in his version that “Whenever as buyer wants to get the replacement of a product because of the reason that the product was defective and it is covered under the replacement policy, then the buyer has to raise a formal replacement request through Amazon (OP-1), which gets directed to us upon receipt of such request. Such replacement is not made by the buyer through same login credential through which such product was ordered, seller does not have the right to replace such product.” In this complaint the complainant has raised the complaint within the prescribed period of 10 days. But the opposite party No.1 has failed to forward the complaint to opposite party No.2 to resolve the issue immediately. Due to miscommunication of opposite parties in resolving the issue the complainant cannot be blamed. The complainant has spent more than four months by running from pillar to post as directed in the emails, to the Opposite parties premises. Inspite of that till today the opposite parties failed to resolve the issue and not replaced the defective product. Being e-commerce entity and intermeddler the opposite party No.1 should have resolved the issue but the opposite party No.1 not opted to resolve the issue and only expressed regret for the uneventhings happened. Hence, we fix liability on opposite parties No.1 and 2 for the deficiency of service to the complainant in not getting the defective product replaced. Hence Opposite parties No.1 and 2 shall compensate by refunding the amount received for the defective product. Hence we answer Point No.1 in affirmative.
15. POINT NO.2:- As per Ex P3 invoice dated 25.06.2019 Complainant had paid Rs.1,20,628/- to Opposite party-1 for the purchase of the defective product. Opposite party-1 and 2 have to refund the amount of Rs.1,20,628/- to the complainants. The complainants have sought to direction to the opposite parties to pay Rs.6,20,628/- in the complaint under different heads including price of the product of Rs.1,20,628/-, Rs.2,50,000/- for the purchase of computer and related components, and Rs.2,00,000/- damages for mental agony and Rs.50,000/- for financial loss suffered and for visiting one place to another place with product as per advise of the opposite parties. For the purchase of high end computer and related components the complainants have not produced any documents. With regard to the visiting from one place to another place for exchange of defective product the complainants sought Rs.50,000/-, which is exorbitant. In toto complainant is entitled for Rs.30,000/- as compensation for mental agony and inconvenience caused. In addition to that complainant also entitled for Rs.10,000/- as litigation cost. Since there is no privity of contract between complainant and Opposite party No.3 and 4. The complaint against Opposite party No.3 and 4 is here by dismissed. Hence we answer Point No.2 partly in affirmative.
16. POINT NO.3:- In view of the discussion made above, we proceed to pass the following;
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The complaint is allowed in part.
The opposite party No.1 and 2 are hereby directed to pay a sum of Rs.1,20,628/ to the complainants with interest @ 9% per annum from the date of purchase of the product i.e. 25.06.2019 to till realization.
Further the opposite party No.1 and 2 shall to pay a sum of Rs.30,000/- to complainants as compensation for mental agony and inconvenience, and Rs.10,000/- towards litigation cost.
The opposite party No.1 and 2 shall comply the order within 30 days. In case, they fail to comply the order within the said period, the above said amount carries interest at the rate of 9% p.a. from the date of order till realization.
The defective Graphic Card vide MO-1 is in the safe custody of this commission. Hence, OP-1 and 2 shall collect the same from the office of this commission and in case they fail to collect the same within 30 days, the same shall be disposed off in accordance with law.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 29th day of November, 2022)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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//ANNEXURE//
Witness examined for the complainants side:
Smt. Uma Eathiraj S.J (PW-1), the complainant No.2 has filed her affidavit.
Documents marked for the complainants side:
1: Certificate u/s 65(B) of Indian Evidence Act.
2: Copy of details of product downloaded from website of Opposite party no.1.
3: Copy of the invoice dt: 25.6.2019.
4: Copy of the delivery of the product through mail dt.27.06.2019.
5. Copy of the downloaded communication between complainant and opposite parties.
6. Copy of the legal notice dt.16.08.2019.
7. Copy of the original postal acknowledgement.
8. Reply notice dt: 26.08.2018.
9. Copy of the downloaded competition brochures
10. Copy of the downloaded communication from opposite party No.1.
11. Original commission report dt.07.04.2020.
12. Graphic card box is marked as MO-1.
Witness examined for the opposite party side:
Documents marked for the Opposite Party side:
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA, K)
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