Orissa

Rayagada

CC/56/2017

Samita Panda - Complainant(s)

Versus

M/s Cloudtail India Pvt. Ltd., - Opp.Party(s)

Self

09 Mar 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 56/ 2017.                                          Date.     9  .    3    . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.PadmalayaMishra,.                                                                                Member

 

Samita  Panda,  Manyataembeasy Park IBM India  Pvt. , At/Po:  Block G2 Rachenahil Nagawara Outer, Ring Road,  Bangalore,  Karnataka- 560045.

Presently residing at Village/Po: Kolnara, PS:Chandili,  Dist:Rayagada, State:  Odisha.           Cell No. 09439566111.                                                                                                                                                                                                                                                                                             …….Complainant

Vrs.

1. The Manager, M/S. Cloudtail India Pvt. Ltd., Anjaneya Infrastructure Project  No. 38 & 39, Soukya Road, Kacherakanahalli,  Hoskote Taluk, Bangalore, 560067. Rural District:  Bangalore, Karnataka State, India.
2. The Manager, Amazon Development India Pvt. Ltd., Brigade  Gateway, 8^th. Floor,  26/1, Dr. Rajkumar Road,  Malleshwaram(W), Bangalore-560055, Karnataka(India).                        Opposite parties.

 

For the Complainant:- Sri Jagannath Dora, Advocate, Rayagada.

For the O.P No.1 :- Sri Pratap Chandra Das, Advocate, Rayagada(Odisha).

For the O.P. No.2:- Sri  J.K.Mohapatra, Advocate, Rayagada(Odisha).

 

JUDGMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of  the sale price  of  defective  mobile  within warranty period.  The brief facts of the case  has summarised here under.

The facts of the complaint  in brief is that,  the complainant has purchased  one mobile set XiaomiRedmi Note 3(Dark Grey, 32GB), X000HM7HZL vide IMEI No.861375033321831  from O.P. No.1 with a  consideration of Rs.11,998/- on 27.04.2016 vide Invoice No.KA-BLR6-144105041-11995045  with one year warranty through the Amazon.in on line marketing who is the O.P.No.2.   During  warranty period  the  mobile set  was  found defective  and     for which  the complainant informed to the O.P. No.2  and handed over the above set  to the Service centre  for rectification    but the O.Ps failed to rectify the problem and returned  the same. Now the above set giving various soft wear problems and the complainant facing several problems without  the said set.  Hence this case.  Finding no other option  the complainant  approach this forum and prayed to direct the O.Ps  to    refund the cost of the mobile set  and  claim compensation for mental agony   and cost of  litigation  and such other relief as the forum deems fit and proper for the  best interest of justice.

 

On being noticed the  O.P. No.1 appeared and filed written version  through their learned counsel  inter alia denying the petition allegations on all its material particulars. The O.Ps taking one and other pleass in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. Hence the O.P No. 1    prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed the O.P. No. 2 filed written version through their learned counsel and contended   that  the present complaint is not maintainable and liable to be dismissed against the O.P.No.1.  The O.P.No.2  is protected  by the provisions of Section-79 of the Information  Technology Act, 2000. The  O.P. No.1 neither offers  nor provides any assurance and/or offers  warranty   to the end    buyers  of the  product.   The  O.P. No.2 is neither  a  ‘trader’ nor a ‘service provider’ and there does not exists any privity of contract   between the complainant and  the O.P. No.1.  The O.P. No. 2  is only  limited  to providing on  line platform  to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its  website.  The O.P. No.2 prayed to dismiss the complaint petition against   O.P. No.1 for the best  interest   of justice.

The O.Ps appeared and filed their written version.  Heard arguments from the  learned counsel for  the  complainant  and O.Ps.    Perused the record, documents, written version  filed by the parties. 

The  parties advanced arguments vehemently opposed the complaint touching the points both on the facts  as well as on  law.

                                                         FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had purchased a mobile set  from the O.P.  No.1  by paying a sum of Rs. 11,998/-  with Invoice No. No.KA-BLR6-144105041-11995045   dt. 27.04.2016 with  one year warranty. But unfortunately after delivery  with in few months the above  set found defective and not functioning. The complainant complained the O.Ps  for necessary repair in turn the OP paid deaf ear.   The complainant further approached the O.Ps for return the money which he spent but for no use.

.           It is submitted by the O.P No.1  in their written version  that  the mobile sold by the O.P  Noa.1 carries manufacturer’s warranty and as a  reseller involvement of O.P in the entire transaction is limited to selling the product and liability to provide after sale services do not lay upon the O.P as the O.P is neither the manufacturer of the product nor the authorized service center of the manufacturer who has the sole and prime responsibility to provide after sale services to the consumers  under warranty clause. The O.P No.1  is not the manufacturer of the product but only sells its online.  The product purchased by the complainant is manufactured by Xiaomi Pvt. Ltd and the product sold by the O.P carries warranty provided by the manufacturer against the manufacturing defects subject to the terms and conditions determined by the manufacturer only. The role of the O.P No. 1  is limited to selling the product of the manufacturer  to the complainant , since electronic devices come in a sealed box, the O.P No.1  have no control over the quality of the product nor is it possible to detect defects, if any. Thus the instant complaint is not maintainable against the O.P No.1   as it is neither a proper nor necessary party. The O.P  No.1 has no liability to replace or capability to repair the product manufactured by the manufacturer.  Even if the product is found to be defective  it can only be the liability of the manufacturer to replace or repair it and here in this case the complainant has not impleaded the manufacturer as opposite party to the complainant. The reliefs prayed for by the complainant  are wholly unreasonable and unsustainable in law and the O.P No.1  is  not liable to pay any compensation to the complainant and thus the complaint against the O.P No.1  is liable to be dismissed.

 

             In support of his case the O.P. No.1 citated  citations in their written version  as laid down by the Apex Court as well as NCDRC in the following cases.

1.Hindustan Motor Ltd. And another Vrs. N.  Sivakumar  2000 (10) SCC- 654.

2. Abhinandan Vrs. Ajit Kumar Verma & otrs. 2008 CPJ  1336 N.C.

3.Esspee Automotives Ltd. Vrs.  SPN  Singh  2015 (1) CPJ 192  N.C.

4. Cadbury India Ltd. Vrs. Kanteppa & Ors.  2016 (1) CPJ  436 N.C.

 

              It is a cardinal rule and upheld by the Hon’ble Supreme Court and the NCDRC in the aforesaid judgemens that it is the manufacturer who is  liable for the manufacturing defecs in a product and not the dealer/seller or retailer.  Hence, this complaint is not maintainable against the O.P No.1  

The O.P No.1 in their written version contended that duty to remove the defect in the product is on the manufacturer of the product or the authorized service centre of the  product. For the above contention  we perused the citation .  It is held and reported  in CTJ-2005, Page No. 1208 the hon’ble  Commission where  in  observed  “Both the dealer & manufacturer of the  product having defects  in it, are jointly and severally liable to the  purchaser, because he knows only the dealer from whom he purchased that  product and not its manufacturer”.  Further in the Written version no where the O.Ps  have   mentioned  the manufacturer address so as this forum  will direct the  manufacturer  to comply the same.  Due to non mention  of  the  manufacturer  address  detail    in the  written version  or  in the  bill   this forum observed    the O.P No.1   is  held responsible for refund  of the  price  of the above product.

 

Further   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”

           

            During the course hearing the complainant  filed Xerox copies  of   Retail tax invoice No. No.KA-BLR6-144105041-11995045   dt. 27.04.2016 which is marked as Annexure-I.  Perused the above invoice. On perusal of the  invoice it is revealed  that  the O.Ps No.1  addresses was  mentioned. For this we perused another citation reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally.  Though you have not mentioned any where the manufacturer address  so you are liable to  refund the  price of the above product.

 

                      The Complainant  argued that the O.Ps have sold a defective  mobile set  to the complainant and claimed that the O.Ps caused deficiency in service and deprived of the complainant of enjoyment of the mobile set  since the date of  its purchase  which caused mental agony and harassment to the complainant.

                In support of his case the O.P. No.2 cited  citations in their written version  as laid down by the Apex Court as well as Commissions in the following cases.

 

                  The Hon’ble High Court of Delhi in the case of  Kent RO Systems Ltd. and another  Vrs. Amit Kotak  &  Ors. CS(COMM) 1655 /2016 vide order DTd. 18.1.2017 has succinctly  pointed out that the  provisions of the IT Act and the IT Rules framed there under do  not obligate an intermediary to, of its own, screen all the   content being posted on its portal for infringement of any rights or laws. The court stated that an intermediary is not possessed with the prowess nor is mandated by law, to identify every single case of infringement or violation, unless they are expressly made aware of the same.

 

                     The Hon’ble Supreme Court of India in the case  of Shreya Singhal Vr. Union of India AIR-2015 SC 1523, held that an  intermediary would be liable only  if it  fails  to take down online content despite receipt of ‘actual knowledge’ of infringement or violation through a court order intimating the same. The Hon’ble Supreme Court specifically recognized that in light of the volumes of data  that intermediary deals with, it would not be in a position to verify the genuineness or products being  sold over its online  market and  in any event, an intermediary ought  not  to be adjudicating  disputes between two private parties.

 

                     Further the Hon’ble Delhi State C.D.R.Commission, in the matter of Vinay Narain Vrs. L.G. Electronics India Pvt. Ltd.,  and ors., in  case  No.270/2010 decided on  21.05.2015   had held that “the O.P. No.2 is neither  a necessary nor a proper party as it has nothing to do with the quality of the product. It is only a shopping site and the manufacturer is responsible  for the product.”

 

                       Again the Hon’ble High Court of Kerala in case titled as Flipkart Internet Pvt. Vrs. State of Kerla  on 7^th. January, 2013 has dealt with the issue    of online marketplace and  has stated that the functioning  performed  by  the marketplace model are covered under definition of ‘service provider’ and do not amount to  transaction of sale.

 

                         The O.P. No.2 only provides services of an online marketplace where buyers and sellers may interact and complete purchases.  Accordingly, the products  available for  sale in the answering O.Ps marketplace are supplied by the seller and purchased by the consumer.  At no stage in the transaction does the  O.P. No.2 have any affiliation or link with the product(s) and does not  hold out to the purchasing public that the products  are that of the answering  O.Ps manufacture or origin. Thus the complainant’s allegations are completely misplaced and unfounded and do not constitute a valid cause of action.

 

                          The O.P. No.2 in written version in para No. 18 clearly mentioned that the O.P. No.2  neither  has the knowledge nor the facility to ascertain if the alleged defects in  the product   are due to  manufacturing  flaws or customer and it is only the  manufacturer and the service centre of the manufacturer who can  resolve any such alleged defects with the product. The warranty  is provided by the manufacturer, subject to the warranty terms and condition and the O.P. No.2   has no  role  to play in the warranty terms and conditions and the same is clearly enumerated  under clause -13 of conditions of use- disclaimer.

 

                          Basing  on the above citation and discussion the  O.P. No.2  has not liable to replace or refund the above mobile amount  but the O.P. No.  1  is held responsible   in this case  and the O.P. No. 1 is liable to pay.

 

Now we have to see whether there was any negligence of the O.P No.1   in providing  after sale service  to the complainant as alleged ?

We perused the documents filed by the complainant.  Since the mobile set found defective after its purchase    and   the complainant  informed the O .P. No.1 regarding the defect but the  O.P No.1   failed to remove  the defect . At this stage we hold that  if the mobile set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective mobile set  is sold to the complainant , the complainant is entitled to get refund of the price of the article or to replace a new  one or  remove the defects  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss.  In the instant case  as it is appears that the mobile set  which was purchased by the complainant had developed  defects and the O.ps were unable to restore its normal functioning during the warranty period. It appears that the complainant invested  a substantial amount and purchased the mobile set  with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the mobile set  for such  and the defecates were not removed by the O.Ps who  know the defects from time to time from the complainant.

                On appreciation of the evidences adduced before it, the forum is inclined to allow the complaint against the O.P No.1.

To meet the ends of justice the following order is passed.

                                                                                O R D E R

                In  resultant the complaint petition  is allowed in part  against the O.P. No.1 (Cloudtail)  on contest and  dismissed against the O.P. No.2 (Amazon).

                The O.P. No.1 (Cloudtail)  is directed to return back the defective product from the complainant  by paying the price of the  mobile set XiaomiRedmi Note 3(Dark Grey, 32GB), X000HM7HZL sum of Rs. 11,998/-.  There is no  order as to cost and compensation.

                .  The entire directions shall be carried out with in 45 days from the  date of receipt   of this order. Serve the order  to the  parties free of cost.

Dictated and corrected by me.

                Pronounced in the open forum on         9  ^th.day of   March, 2018.

 

MEMBER                                                  MEMBER                                                                                              PRESIDENT