DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

 Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

 Friday, the 30^th  day of August 2024

CC. 264/2020

Complainant

            K.K. Sreekumar,

            Flat No. 12C, Rain Tree Heights Apartments,

            Opp. Sarovaram Bio Park, Mini Bypass Road,

Kasaba village, Kalathinkunnu desom,

Kozhikode Taluk, P.O. Eranhipalam,

Kozhikode – 673 006.

Opposite Party

1.               M/s Amazon India (Regd office),

Brigade gateway, 8^th floor,

                        26/1, Dr. Rajkumar Road,

                        Malleshwaram (W), Bangalore – 560055.

2.                One Plus India (Corporate Office),

 5^th floor, Kabra Excelsior, Opp. Wipro Park,

80ft road, Koramangala 1^st block, Bangalore – 560 025.

Suppl. OP3.    M/s Cloudtail India Pvt Ltd,

                         ≠11, 6^th floor, Divyashree Chambers,

                        ‘B’ wing ‘O’ Shaughnessy Road,

Longford Town, Akkithimmanahalli,

Bangalore – 560025.

(Suppl. OP3 impleaded as per order dated 01/08/2022 in IA No. 180/2022)

(OP1- By Adv. Sri. Vinidha.K)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT                

This is a complaint filed under Section 35 of the Consumer Protection Act, 2019.

2.  The case of the complainant, in brief, is as follows:

The complainant had ordered a 138.8 cm television set of the make ‘One Plus’ costing Rs. 69,899/- through the online services with the first opposite party on 12/01/2020. The TV was delivered to the complainant at his new flat address on 15/01/2020. On informing the first opposite party about the receipt of the TV, their local technicians came and installed the same at the flat on 21/01/2020. A demo of its working was shown to the complainant and his son Anurag Nambiar.

3. Even though the work of the new flat was completed, the complainant was staying in a rented apartment and had not shifted his residence to the new flat at that time. When he made his next visit to the flat on 01/02/2020 along with his son, the TV set was switched on and some horizontal and vertical lines were seen on the top and right side of the TV monitor. Immediately, a mail was sent to the second opposite party informing the problem detected. But there was no response. Finally after repeated calls it was informed that a technician would come and look in to the matter. But nobody turned up. The complainant contacted the first opposite party also. But no positive action was taken by the opposite parties to address his concerns over the TV. The irresponsible attitude of the opposite parties amounts to deficiency of service and unfair trade practice. The complainant was not able to use the TV which he purchased spending a substantial amount. Hence the complaint to direct the opposite parties to replace the defective TV set with a new one or refund the sale price of Rs. 69,899/-. Compensation to the tune of Rs. 1,00,000/- is also claimed from the opposite parties.
4. The supplemental third opposite party was impleaded as per order dated 01/08/2022 in IA. No. 180/2022.
5. The second and the supplemental third opposite parties were set exparte.
6. The first opposite party has entered appearance and resisted the complaint by filing written version wherein all the allegations and claims made against them in the complaint are denied. According to the first opposite party, the complaint is not maintainable. The product has been purchased from an independent third party seller ie, Cloudtail India Pvt. Ltd on the e-commerce market place from the account of Anurag Nambiar and not the complainant. The product was sold by the supplemental third opposite party. The first opposite party is not liable for any manufacturing or other defects in the product. The warranty with respect to the product was entered in to between the account holder and the manufacturer. The product manufacturer is liable for rectification of the alleged defects and independent third party seller is not liable for the alleged delivery of a defective product and the first opposite party is not liable for the same as it has merely acted as an intermediary for the same transaction. Being an intermediary and e-commerce market place, the first opposite party is not liable for any claims arising out of the products sold on e-commerce market place by independent third party sellers. The complainant is not entitled to seek any relief from the first opposite party. With the above contentions, the first opposite party prays for dismissal of the complaint.   
7. The points that arise for determination in this complaint are;

1. Whether there was any unfair trade practice or deficiency of service on the part of the opposite parties, as alleged?
2. Reliefs and costs.

8. Evidence consists of the oral evidence of PW1 and Exts A1to A56 on the side of the complainant. At the time of the evidence, the contesting first opposite party remained absent and PW1 was not cross examined and no evidence was also let in. 
9. Heard.
10. Point No 1:   The original complaint has been filed against M/s. Amazon India and M/s. One Plus India relating to the defects in the TV set purchased by the complainant. Subsequently, M/s. Cloudtail India Pvt. Ltd was impleaded as supplemental third opposite party in the light of the contentions in the written version of the first opposite party.
11. The specific allegation in the complaint is that the One Plus TV purchased by the complainant in January 2020 became defective soon after the purchase and the opposite parties neglected to repair/service the TV despite repeated requests made by the complainant. The prayer in the complaint is for replacement of the defective TV with a new TV, or in the alternative, refund of the sale price of Rs. 69,889/-. Compensation to the tune of Rs. 1,00,000/- is also claimed for the mental agony harassment and inconvenience suffered by the complainant on account of the deficiency of service of the opposite parties.
12. PW1 is none other than the complainant and he has filed proof affidavit in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the invoice dated 12/01/2020, Exts A2 to A35 are the copies of the various e-mails exchanged between the complainant and the first opposite party and Exts A36 to A56 are the copies of the screen shots of the online chat between the complainant and the second opposite party. 
13. As already stated, the first opposite party alone contested the matter and filed written version. The second and supplemental third opposite party have not turned up to file version or to contest the case. The contesting first opposite party opted to remain absent at the time of evidence. PW1 was not cross examined and his evidence stands unchallenged. The opposite parties have not adduced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on the side of the complainant. There is no contra evidence to disprove the claim.
14. It is averred in the proof affidavit that the TV in question was purchased by the complainant. The billing address and shipping address in Ext A1 bill is that of the complainant. The TV was installed in the flat of the complainant. Being the purchaser of the TV for consideration, the complainant is a consumer and he has the locus standi to file the complaint.
15. It may be noted that even though the first opposite party has filed written version challenging the locus standi of the complainant to file the complaint and also disputing the claim and denying the liability, they have chosen to remain absent at the time of evidence and PW1 was not even cross examined. The evidence of PW1 remains uncontroverted. Even after Exts. A2 to A56 communications between the complainant and the opposite parties, no positive action was taken by them to address the concerns of the complainant over the TV which he had purchased spending a substantial amount. The irresponsible conduct and attitude of the opposite parties amount to gross deficiency of service. The complainant and his family was not able to enjoy the TV and they were deprived of social entertainment. The TV in question has now become a worthless product as far as the complainant is concerned. The complainant is entitled to get the defective TV replaced with a new one or in the alternative, refund of the price. Undoubtedly, the act of the opposite parties have resulted in gross mental agony and inconvenience to the complainant, for which, he is entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 20,000/- will be reasonable compensation in this regard. The opposite parties are jointly and severally liable. 
16. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                  a)  CC.264/2020 is allowed in part.

b) The opposite parties are hereby directed to replace the One Plus 138.8cm TV of the complainant with a new one of similar description which shall be free from any defect, or in the alternative, refund the sale price of Rs. 69,899/- (Rupees sixty nine thousand eight hundred and ninety nine only) to the complainant, after taking back the defective TV set.

c) The opposite parties are directed to pay a sum of Rs. 20,000/- (Rupees twenty thousand only) as compensation to the complainant for the mental agony and inconvenience suffered.

d) The order shall be complied with within 30 days of the receipt of copy of this order, failing which, the complainant shall be entitled to get interest @ 9% per annum on the sale price of the Rs. 69,899/- from the date of this order till compliance. 

e) No order as to costs.

Pronounced in open Commission on this, the 30^th day of August, 2024.

Date of Filing: 28/12/2020

      Sd/                                                             Sd/-                                                           Sd/-                                                                            

PRESIDENT                                              MEMBER                                                MEMBER                               

APPENDIX

Exhibits for the Complainant :

Ext A1- Copy of the invoice dated 12/01/2020,

Ext A2 to A35 - Copies of the various e-mails exchanged between the complainant  and the first opposite party.

Exts A36 to A56 - Copies of the screen shots of the online chat between the complainant and the second opposite party. 

Exhibits for the Opposite Party

Nil

Witnesses for the Complainant

PW1 -   K.K. Sreekumar (Complainant)

Witnesses for the opposite party

NIL

      Sd/                                                             Sd/-                                                           Sd/-                                                                            

PRESIDENT                                              MEMBER                                                MEMBER                 

True Copy,      

                                                                                                                        Sd/-

                                                                                                               Assistant Registrar.