Delhi

East Delhi

CC/469/2016

SONIA SETHI - Complainant(s)

Versus

ONE PLUS - Opp.Party(s)

08 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO. 469/16

SMT. SONIA SETHI

W/O SHRI YASHVIR SETHI

R/O 112 KIRPAL APARTMENTS,

44, 1.P. EXTENSION,

1. •  

 

Vs

 

 

1. M/S ONE PLUS

FIFTH FLOOR, KABRA EXCELSIOR

OPPOSITE WIPRO PARK

80 FEET ROAD, KORA MANGLA, 1^ST BLOCK,

BANGLORE, KARNATAKA.

 

2. AMAZON SELLER SERVICE PVT. LTD.,

BRIGADE GATEWAY

8.  

MALESHWARAM (W),

1.  

                                                                                                                        ….Opponents

 

Date of Institution: 06.09.2016

Judgment Reserved for: 08.10.2018

Judgment Passed on: 22.10.2018

CORUM:

Sh. SUKHDEV SINGH                  (PRESIDENT)

Dr. P.N. TIWARI                            (MEMBER)

Ms. HARPREET KAUR CHARYA (MEMBER)

 

ORDER BY: MS. HARPREET KAUR CHARYA (MEMBER)

JUDGEMENT

1. Jurisdiction of this forum has been invoked by complainant Smt. Sonia Sethi against, M/S One Plus (OP-1) and Amazon Seller Service Pvt. Ltd. (OP-2), with allegations of deficiency in services.
2. Briefly stated the facts of the present complaint are that the complainant is a practicing advocate and had purchased the handset make One Plus 3 for her daughter studying in final year of B.A. L.L.B., Amity Law School at NOIDA. On 30.06.2016, being induced by representation made by the respondents, complainant placed online order through Respondent No. 2. On 07.07.2016, the mobile phone bearing IMEI no. 860152038256010 was delivered to the complainant for which Rs.28,000/- were paid at the time of delivery. It has been stated that in the invoice supplied to the complainant there was no instruction regarding getting the mobile phone registered on ‘Servify’ within 30 days from the date of purchase.
3. On 05.08.2016 the daughter of the complainant noticed a crack on the screen on the mobile phone which was contrary to the representation made by OP regarding the quality of the mobile phone and immediately registered a complaint by E.mail. Request no. 342876 was given by OP-2 in acknowledgment of the complaint. On 06.08.2016, the complainant was asked whether they had got the handset registered under the accidental damage protection, to which the complainant showed her ignorance stating that she was not informed with respect to the said registration. On 07.08.2016 the complainant was advised to download the ‘One Plus Care App powered by ‘Servify’ along with proof of purchase. The complainant was informed that the date of purchase would be taken as the date of placing order i.e. 30.06.2016 and not as 07.07.2016, when the mobile handset was delivered. Further, the complainant was advised to visit the service centre to get the issue diagnosed for which the complainant visited OP-1, where the staff present there refused to repair or replace the damaged handset. Legal notice dated 10.08.2016, was served upon OP through registered speed post. Despite several communications, the grievance of the complainant remained unaddressed, hence, the present complaint seeking directions to OPs to replace the defective/damaged mobile handset with new and defect free mobile handset or in alternative to refund Rs.28,000/- being the cost of the handset along with interest @24% per annum compounded quarterly from 07.07.2016 till realization, Rs.15,000/- as damages on account of harassment, inconvenience and mental agony and Rs.15,000/- as litigation expenses.

Copy of communications/e.mails exchanged between the complainant and OP dated 05.08.2016, 06.08.2016, 07.08.2016 (colly), copy of legal notice dated 10.08.2016 along with postal registry receipts, track report, copy of purchase order and shipment details of date 30.06.2016, certificate under Section 65 B, Indian Evidence Act, Retail invoice, E Sugam Form, brochure containing the safety information have been annexed with the complaint.

4. OP-1 was served neither they put appearance nor any reply was filed on their behalf.
5. Reply was filed on behalf of OP-2, where they have taken several pleas in their defence such as; they had been wrongly impleaded by the complainant and the complainant is not a consumer, qua them; OP-2 merely provides an online market place where independent third parties sell their products and OP-2 is not involved in the sale transaction between the customer and the seller and the contract of sale of products on websites was strictly a bipartite contract between the customer and the seller and the OP being just a facilitator, was not responsible in any manner. The complainant was bound by the conditions with regard to the usage and sale on the website. It was submitted that M/S Cloudtail India Private Limited, was a seller and the complainant had failed to implead the seller as the necessary party. It was also submitted that the complaint was filed with respect to after sale service of the product purchased by the complainant, which could be addressed by the seller/manufacturer only. Rest all the contents of the complaint have been denied and dismissal of the complaint qua OP-2 has been prayed for. 

Power of Attorney in favour of Shri Rahul Sundaram, has been annexed asAnnexure–A, Board Resolution dated 22.09.2014 as Annexure-B, conditions of usage as Annexure-C, reply to the legal notice issued by complainant as Annexure –D along with report have been annexed with their reply.

6. Rejoinder to the written statement of OP-2 filed by the complainant. It was stated that OP-2 had made false representation with regard to the quality of mobile phone. Rest all the contents of the written statement have been denied and the averments made in the complaint have been reaffirmed. E.mails regarding confirmation of order no. #404-8269014-8676306 reflecting status has been annexed with the rejoinder.
7. Evidence by way of affidavit was filed, where she has got herself examined and has got exhibited the copy of the brochure, public notices as Ex.CW1/1(colly), copy of the acknowledgment of OP-2 as Ex.CW1/2, confirmation communication dated 03.07.2016 with respect to the dispatch of the mobile phone as Ex.CW1/3, invoice as Ex.CW1/4, copy of the complaint dated 07.08.2016 as Ex.CW1/5, communication between the parties as Ex.CW1/6 (colly), notice of demand dated 10.08.2016 alongwith postal receipt as Ex.CW1/7 and Ex.CW1/8 respectively, legal notice as Ex.CW1/9, reply to the legal notice by OP-2 as Ex.CW1/10, in support of her averments made in the complaint.
8. OP-2 got examined Shri Rahul Sundram who has also got exhibited authority letter/power of attorney as Ex.R2W1/1, board resolution dated 22.09.2014 as Ex.R2W1/2, condition of use and sale as Ex.R2W1/3, reply to the notice dated 20.09.2016 alongwith postal receipts as Ex.R2W1/4.
9. Heard arguments on behalf of Ld. Counsel for complainant and have perused the material placed on record. It has been stated by the complainant that the handset was purchased by her for her daughter by placing the order through OP-2, which was delivered to her on 07.07.2016, thereafter a crack was noticed on the screen of mobile phone for which OP-2 was informed. Further, the complainant has stated that she could not get the handset registered with ‘One+ Care App’ powered by ‘Servify’ as the same was not communicated to her either by OP-1 and OP-2. The complainant was informed that the date of purchase would be taken as 30.06.2016 i.e date of placing order and not as 07.07.2016, the date of the delivery, when she visited service centre of OP-1. The complainant has reiterated the same in her affidavit. OP-1 did not appear despite service, allegations made against them have been made unrebutted.

As far as the liability of OP-2 was concerned, if a look is made at press note no. (2016 series) issued by Department of Industrial Policy and Promotion, which was incorporated in statute by no. FEMA 387/2017-RB which deals with the guidelines of foreign investment in E commerce. The bare reading of clause 2.3-: relevant clause are being reproduced.

1.  
2.  
3.  

(iv) E-commerce entity providing a marketplace will not exercise ownership over the inventory i.e. goods purported to be sold. Such as ownership over the inventory will render the business into inventory based model.

1.  

(vi) In market place model goods/services made available for sale electronically on website should clearly provide name, address and other contact details of the seller. Post sales, delivery of goods to the customers and customer satisfaction will be responsibility of the seller.

(vii) In marketplace model, payments for sale may be facilitated by the e-commerce entity in conformity with the guidelines of the Reserve Bank of India.

(viii) In marketplace model, any warrantee/guarantee of goods and services sold will be responsibility of the seller.

Thus, from clause above mentioned it is clear that after sale services, guarantee/warranty was to be provided by the seller, which is M/S Cloudtail India Pvt. Ltd.

Printouts of e-paper ‘Live-Mint’ filed by complainant to establish that OP-2 and M/S Cloudtail India Pvt Ltd., are in joint venture, cannot be relied upon as it is a mere publication and authenticity of the same has not been proved by the complainant.

The complainant has stated that she was not informed regarding the registeration of the handset with ‘Servify’ has remained unrebutted as OP-1, the manufacturer, who have been proceeded ex-parte as they neither filed their written statement nor appeared despite service.

Thus, from above discussion, we hold that OP-1, have failed to deliver due instructions to get the handset registered against accidental damage. The date of purchase shall be construed from the date of delivery, when the complainant actually got access to the handset and not date of order. It is the duty of the manufacturer to apprise the customer/purchaser of all the formalities and terms and conditions attached to the use of product, in facts & circumstances of present complaint OP-1 has failed to do so. Hence, we direct OP-1 to refund the cost of handset i.e. Rs. 27,999/- alongwith Rs.10,000/- as compensation on account of mental harassment and pain. We also award Rs.3,500/-, as litigation expenses. This order be complied within 30 days from the date of receipt of order, in case OP-1 fails to comply with the order, Rs.27,999/- shall carry interest @ 9% per annum from the date of filing of the complaint till realization.

Copy of this order be sent to both the parties as per law.

 

 

(Dr. P.N. TIWARI)                                                                    (HARPREET KAUR CHARYA)              

      MEMBER                                                                                            MEMBER

 

                                                (SUKHDEV SINGH)

                                                PRESIDENT