BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM.
KAMRUP
C.C.No.16/2017
Present: I) Shri A.F.A.Bora,M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Smti Sunidhi Dalal - Complainant
401,Dhanuka Complex,Block-c.
S.J.Road, Athgaon,Guwahati Assam
Represented by POA: Hemant Mishra,
National Law University, Assam,
NEJOTI Building ,B.K.Kakati Road, Ulubari,
Assam-78100
-vs-
I) Paytm.com -Opposite parties
Paytm Headquarters , B-121
Sector 5, Noida-201301, India
II) Nucleus Store
Infront of railway plaza,
Jayendra gunj, Lashkar,
Gwalior M.P.-474009
III) Dell
Inside Pee Tee Tower,G.S.Road,Lachit Nagar,
Guwahati-781007 ,R/O Dell Inc., Inner Ring Road,
Banglore-560078, Karnataka India
Appearance
Attorney Holder Mr.Hemant Mishra for the complainant .
Learned advocate 1) Sri Nishamoni Borah 2) P.Daimary
3) Sri S.K.Deori 4) B.Deori 5) Miss Somila for the opposite parties.
Date of argument:- 5.1.19
Date of judgment: -3.3.20
JUDGMENT
1) This is a complaint filed by one Smti Sunidhi Dalal which has been registered on 14.2.2017 as C.C.Case No.16/2017 . The allegation made in the complaint petition is deficiency of service on the part of the opposite parties No. 1,2 & 3 for replacing the laptop with a genuine latest model. There is a prayer for damages of Rs.55,000/- as compensation for mental agony and harassment caused by the respondents due to their deficiency of service and unfair trade practice towards the complainant and also Rs.5,000/- towards litigation cost .
2) The fact of the case briefly narrating is that, complainant, Smti Sunidhi Dalal, lodged a complaint petition in this forum on 14.2.2017 which was admitted for hearing u/s 12 of the Consumer Protection Act,1986. The proceeding was made against Paytm.com as Respondent No. 1 , Nucleus Store as Respondent No.2 and Dell as Respondent No.3. It is alleged interalia that Respondent No. 1 is a company registered under the companies act dealing with business with running online shopping store known as Paytm having its headquarters at B-121,Sector 5, Noida- 201301, India and Respondent No. 2 is a seller having its business at Nucleus Store, Jayendra gunj Lashkar, Gwalior, M.P.-474009 associated in sale of products manufactured by Respondent No. 3, who is dealing with business of manufacturing and selling variety of technology solution having its office at Inner Ring Road, Banglore- 560078 , Karnataka, India.
3) The complainant alleged that on 25.11.2015 she visited the online shopping store (Respondent No. 1) with intention to purchase a good quality laptop. The online site displayed a product with the recommendation that it was having one year manufacturing warranty. According to the complainant, in pursuance of the recommendation as stated above , a black coloured Dell Inspiron 15 -3534 model laptop with core i3 5th Gen, 4GB DDR3 RAM, 1TB Hard disk and windows 8.1 operating system which had one year Manufacturer warranty was purchased and was priced at 30,990/-.
4) It is alleged that , there is a misrepresentation of the warranty of the laptop with the intent of selling a defective laptop to the complainant. According to the complainant the laptop was scrap and should not have been put up for the display on shopping site. It is alleged that Respondent No. 2 being the seller of the same has made a false representation with respective warranty. It is further alleged that, laptop was sub-standard quality consisting of many technological defects. However, the online shopping store of Respondent No. 1 misrepresented the laptop. It is further stated that this is a product manufactured by Respondent No. 3. According to the complainant, she purchased the laptop from Respondent No. 2 Dell inspiron 15-3543 on 25th November ,2015 having Paytm order refer.-1354710673 for an amount of Rs. 31,050/- from Respondent No. 1 through online purchase transaction. Ultimately complainant completed the purchase and accepted the product which was delivered to her at the address and paid the shipping charge at the time of delivery.
5) The complainant to her utter shock found that device is having miscellaneous technical issues after a few months of usage . During the period of warranty the complainant approached the opp.party No.3 on 11th August, 2016 to claim the warranty for getting the device fixed , but she was denied for the same stating it is not available as it was not updated online and that it is on the part of the seller/dealer to carry forward the same.
6) Thereafter, as instructed by the authorized service centre of the opp.party No.3, the complainant in a mail to opp.party No.2 on 14.9.2016 mentioned all the problems faced in the repairing of the laptop and claiming the rightful warranty, which was ignored blatantly and she had to pursue the opp.party No.1 and the seller of the product i.e. opp.party No.2 on several phone calls to redress the issue after which opp.party No. 2 sent a Toshiba Hard disk drive to the complainant which was delivered on 30.9.2016 and he asked her for the replacement of the hard disk drive on her own.
7) The complainant claim for replacement of the laptop with a latest model and pay for damages of Rs.55,000/- for mental agony as well as litigation cost of Rs.5,000/-
8) The contesting opposite Party No.1 filed written statement stating that the allegation of deficiency in service is denied and submit that allegations are false and non-existence and it is prayed that petition is liable to be dismissed.
9) The opposite Party No. 1 submitted further that “One 97 Communications Ltd.” (Paytm) is the owner of the website www.paytm.com along with the Mobile Application named “Paytm” which is an online market place and acts as a platform for different sellers to sell their products and for different buyers to access and purchase amongst variety of goods offered by various sellers to the terms and conditions as enumerated on the website of paytm.
10) The opposite party No. 1 neither sells nor offers to sell any products and merely provides a technology platform where independent third party sellers can list their products for sale . The sellers are responsible for the sale of their product on the website Paytm not intervene or influence any customers in any manner. The terms and conditions are available at the website www.paytm.com .
11) The contesting opposite Party No.2 filed their written statement contesting the suit. According to him the allegation of deficiency in service is denied and submit that allegations are false and non-existence and it is prayed that petition is liable to be dismissed.
12) It is submitted that the opposite party No.2 has offered the complainant to replace the laptop, but she did not choose to opt for the same. The information shown on the online site has no nexus and connection with the Respondent No.2. They are only the supplier of the good and not more than that. It is submitted that as per the order booked by the online site paytm ( Respondent No.2) used to supply the product. The complainant failed to produce any document pertaining to the denial of service by Respondent No. 2. It is submitted that the said laptop is still available for sale on various e-commerce site like amazone, e.bay etc.
13) The complainant made a complaint on telephone that the laptop is having some hard disk problems. The complainant instead of getting the hard disk replacement is pressing for a new laptop. It is further submitted that the complainant has received the hard disk and it is her duty to approach the authorized service centre to get the same replaced.
14) The respondent has no intention to cheat or to cause any wrongful loss to the complainant if the respondent is having the intention to cheat than he would not have sent the hard disk worth of Rs.10,000/- to the complainant for replacement . When the answering respondent has sent to the complainant the new hard disk then she should have rushed to the nearest authorized service centre to get the same replaced. It is further submitted that the complainant never contacted answering respondent neither on telephone nor on mail after receipt of the hard disk.
15) Similarly the contesting opposite Party No.3 filed their written statement which is as below,
I) The allegation of deficiency in service is denied and submit that allegations are false and non-existence and it is prayed that petition is liable to be dismissed.
II) Opposite Party No. 3 has not authorized Opposite No. 2 in any way . The system allegedly sold by opposite party No.1 and opposite party No.2 was not authorized seller of the products manufactured by opposite party no.3. The system in question was sold in Canada to a third party and does not carry with itself an international warranty and ownership, as per the records of opp.party No.3. It is with a third party and the same has not been transferred in favour of the complainant.
III) Opposite party No.3 is unaware as to how the complainant is in possession of the said system as the same has already been sold and registered in Canada in favour of a third party.
16) Having such ground on written statement and on the basis of the pleading of the parties following issues are taken for discussion and decision.
Points for decision-
I) Whether claim petition is filed within the period of limitation ?
II) Whether the claim was submitted during the warranty period before the opposite party ?
III) Whether the claim is illegal as the product was made in Canada and was registered in favour of third party and whether any document was filed by the Opp.Party No.3 in support of his claim ?
IV) Whether the opposite party No. 1 , the online site can be held liable ?
V) Whether the opp.party No. 2 , the seller can be held liable ?
VI) Whether Opposite party no.3 being the manufacturer can be held liable ?
VII) Whether the complainant is entitled for the claim made by her in respect of the product to replace, as well as compensation of Rs.55,000/- and any other relief from opposite party No.1,2 & 3 ?
17) Reasons for decision-
8) We have carefully gone through the entire record as well as the evidence adduced by the complainant and written statement submitted by the opposite parties. We have perused the document i.e. certified copy of the power of attorney, Invoice dated 25.11.2015, warranty details, e.mail dtd. 14.9.16 addressed to the opposite party No.2 requesting for redressal, e.mail by the respondent No. 1 denying the warranty to the complainant, a notice dtd. 22.11.16 calling upon the respondent for replacing the product along with compensation, reply by the opp.party No.3 to the complainant stating that product was sold in Canada to a third party and does not carry with itself an international warranty and ownership. The above mentioned document and claims of the claimants for decision of the issues.
Issue No. I
18) Whether claim petition is filed within the period of limitation ? Let us now take up the issue No. 1 for decision. First we have taken the disputed fact whether the case is filed within the period of limitation. It is apparent from the document submitted by the complainant that within the warranty period of the product technical issues came up and complainant approached the opposite parties for redressal as per conditions of manufacturer warranty. Admittedly, complainant purchased the product on 15.11.15 , which had one year warranty. Complainant approached the respondent No. 3 on 11.8.16 to claim warranty as such the proceeding filed on 14.2.17 is within the period of two years and hence issue No. 1 is decided in affirmative.
Issue No.II
19) Whether the claim was made during the warranty period before the opposite party is a question to be determined ? This is an important issue for determination of the dispute . Now the evidence of the complainant which is recorded as C.W.1 Mr.Hemant Mishra (attorney holder of the complainant) and according to him he is duly constituted attorney on behalf of the complainant . Complainant on 25.11.15 purchased a Dell laptop with one year manufacturer warranty. C.W.1 testified Ex.1© the invoice issued by Nucleus Store, i.e. opposite party No.2 which is indicating of the fact that complainant purchased the Dell laptop from the opposite party No.2 through paytm.online site. Complainant found some technical problems in the laptop after a few months of usage and on 11.8.2016 the complainant approached the authorized service centre of the manufacturer i.e. opposite party no.3 during the warranty period , but no good response.
20) Admittedly, complainant purchased the laptop on 25.11.15 and approached the opp.party No. 3 on 11.8.16 for redressal. The cause of action arose during the warranty period . As such issue No. 2 is decided in affirmative.
Issue No. III
21) Whether the claim is illegal as the product was made in Canada and in support of the above claim whether any document was filed by the Opp.Party No.3 . This is an important issue claimed by the opp.party No.3 that the laptop was made in Canada and does not cover the warranty as claimed by the complainant. We have gone through the written statement submitted by the opposite party No.2. Opposite party No.2 has stated that as per the order through online site they sold the product to the complainant and the said product is still available for sale on various e.commerce and it cannot be said that it is illegally imported from Canada. There is no specific documents from the opp.party No. 3 is substantiate the said clause .Mere making a statement on written statement is not sufficient to hold a view without any supporting documents. Hence issue No. 3 is decided in negative.
Issue No. IV
22) Whether the opposite party No. 1 , the online site can be held liable?
We found that opposite party No. 1 in their written statement submitted that paytm is the owner of website www.paytm.com which is an online market place and acts as a platform for different sellers to sell their product. We have found in Ex.E , the terms and conditions of service and support of Dell. Admittedly complainant has not submitted any document to substantiate that respondent No. 1 deliberately sold a defective laptop through online site .
23) On the other hand it is submitted by the complainant , but transaction carried out is a tacit understanding between the opp.party No. 1 & 2 for which opp.party No. 1 is liable for the act and omission on the part of opp.party No. 2. Here complainant make a reference of Section 79 of the Information & Technology Act,2000 and cited case laws Dinesh Agrawal Vs. State of Bihar & Others (Criminal Writ Jurisdiction Case No. 347 of 2018. It is further submitted by the complainant that e-commerce companies have to comply with the Companies Act and other applicable laws and made reference of Shops and Establishment Act Consumer Protection Act, 1986. It is argued by the claimant that Opp.party No.1 had the intention to cheat the complainant thereby caused wrongful loss .
24) However we like to confine our discussion to the extent that Opp.Party No.1 is a online market plateform for various and different sales of product and their liability ought to be considered to the extend the service they provided. As such, on due consideration of the documents on record it is found that opposite party No. 1 is not liable and hence this issue is decided in negative.
Issue No. V
25) Whether the opp.party No. 2 , the seller can be held liable ? There is evidence that complainant has received the hard disk from the opposite party No. 2 after approaching them for technical problem. The complainant did not approach any authorized service centre of the manufacturer for getting the hard disk replaced after receiving the same. Opposite party No. 2 stated in the written statement that they have offered her to replace the laptop , but she did not chosen and demanded to change the laptop with a latest model. Admittedly, there were transaction between the parties and the opp.party No.2 during the period of warranty sent a hard-disk making a request to replace the same to get a proper service of the laptop, but there is no such evidence on record from the complainant that service was not provided to her by the authorized service centre . Replacement of a good as per warranty if considered then in that case the deficiency of service on the part of opp.party No. 2 is found clear enough as mere sending a hard disk to a customer does not indicate providing proper service for repairing or replacement. It cannot be called the service rendered to the customer during the period of warranty as per terms and condition of the documents as already discussed .
26) The allegation made by the complainant is that opp.party No.2 had deliberately sold an illegal imported defective piece with scrap quality which was sold in Canada to a third party which does not carry with itself international warranty. Moreover the contradictory version of opp.party No. 3 is that the system with a third party which was manufactured at Canada does not cover any warranty . If it is presumed that op.party No.3 is a manufacturer of the good, then in that case to liability is with the opp.party No.2 seller to provide the benefit of warranty to the complainant/consumer. There is no explanation from the side of the opp.party No. 2 ( the seller) that the opposite party Dell is not manufacturer. Under the above circumstances it is found that opp.party No.2 is liable for the damage caused to the complainant and issue is decided accordingly in favour of the complainant.
Issue No. VI
27) Whether Opposite party no.3 i.e. the manufacturer can be held liable ? There is no evidence from the opposite party No.3 to substantiate their claim that the product manufactured in Canada does not cover one year International warranty. The ownership as per the records of opposite party No.3 is with a third party and same has not been transferred in favour of the complainant as claimed by the Opp.Party No. 3 in their written statement. There is also no specific evidence or documents to show that the opposite party No. 3 is unaware as to how the complainant is in possession of the product. There is evidence that the complainant through online site i.e. Paytm.com purchased the Dell laptop which had one year manufacturer warranty . It infers clearly that complainant is a bonafide purchaser of the good through online. On perusal of Ex.E, i.e. Dell terms and conditions of service and support, we found that upon receipt of notification from the customer that the products have failed or are mal functioning and in the event that the fault cannot be rectified using Dell Telephone support, Dell undertakes to use all reasonal endeavours during the standard service hours to make such corrections, repairs or adjustments to or replace such parts of products as may be necessary to restore the products to their proper operating conditions.
28) Moreover it is seen from Ex.F that Opp.party No.3 informed the complainant that as the warranty of the product has been expired, they are unable to process . Opp.party No.,3 in their reply to the complainant never stated any thing that the product was made in Canada and the ownership of the product is with a third party , but not with the complainant and therefore cannot claim warranty of the product. Hence taking a plea by the opposite party No.3 in the written statement is not sufficient to hold a view otherwise without providing the same by the opp.party No.3
29) We found that denial of service from the Opp.party No. 3 to the complainant is on the basis of expiry of warranty period of the product. From the evidence and documents filed by the complainant, we found that warranty of the product has not been expired as claimed by the Opp.Party No.3 and we hold that the complainant is entitled to get compensation from the Opp.party No.3 as well who is jointly liable with opp.party No.2 . Hence, the present issue is decided in affirmative.
Issue No. VII
30) Whether the complainant is entitled for the claim made by her in respect of the product purchased and any other relief ? From the discussion made in earlier issues it became apparent that the product , a Dell laptop as purchased by the complainant through online site and after few months of usage the device started giving some problems. Then the complainant approached the respondent No. 3 . She was denied stating that it is not available and is not updated online as well as product was sold in Canada to a third party and does not carry an international warranty as the ownership of the product has not been transferred in favour of the complainant. But we found that opposite party no. 3 has not submitted any documents in support of their statement made in written statement. The complainant is entitled for services during the period of warranty.
31) From the discussion made above , we found that opp.party No.2 stated in their written statement claimed that they offered to replace the laptop , but claimant did not chosen to opt for the same .The complainant admittedly received the hard disk from the opp.party No.2 but the complainant did not approached the authorized service centre for any mechanical work as allowed by the opp.party No.2. On the other hand the complainant in her evidence stated that she got the hard disk from the opp.party no. 2 on 30.9.16. The complainant thought that changing the hard disk drive might not have been the exact redressal for the issue as no technical check was carried out. The complainant stated in her evidence that she claimed replacement of the product with a latest model of equivalent configuration as well as compensation were claimed by her.
32) We have found that opp.party No.2 is supplier of the product Dell laptop. When the complainant approached them they sent a hard disk after which she has not approached any authorized service centre to solve the mechanical problem. Opposite party no. 2 further submitted that they offered her to replace the laptop but she insisted for replacement with a latest model of equivalent configuration . The complainant should have visit the authorized service centre of the Dell laptop after getting the hard disk from the opp.party No.2. But there is no such evidence from opp.party No.2 to show that they have provided the due services to the complainant during the period of warranty.
33) We have found that opp.party No. 1 submitted in their written statement that they are the owner of the website www.paytm.com which is an online market place and acts as a platform for different sellers to sell their product. We have found in Exhibit E the terms and conditions of service and support of Dell. Admittedly , complainant has not submitted any document to substantiate that respondent No. 1 deliberately sold a defective laptop through their online site. Hence opp.party No.1 is found not liable for selling a defective laptop to the complainant and opp.party No.1 is not liable.
34) But so far the services provided by opp.party No.2 during the period of warranty for Dell laptop is apparently not satisfactory and there is deficiency of services. Mere sending a hard disc on receiving complain is not sufficient on the part of opp.party No. 2.
35) Similarly, the plea taken by opp.party No.3 that product was manufactured at Canada and was owned by third party can not be accepted without any documents or evidence. The Dell is a company dealing with laptop and as per documents available in record opp.party No.3 is manufacturer of the laptop sold to the claimant. As such opp.party No.3 is also jointly liable to opp.party No.2. Accordingly, issue is decided in favour of the claim.
ORDER
1) In result it is ordered that opp.party No. 2 and 3 are liable to return the cost of the Dell laptop which was purchased by the complainant at the cost of Rs.31,050/- (Rupees thirty one thousand fifty)only.
2) The opp.party No. 2 & 3 are further liable to pay compensation amounting to Rs.5,000/- (Rupees five thousand )only along with cost of the proceedings amounting Rs.5,000/- ((Rupees five thousand )only.
3) The opp.party No.2 & 3 are jointly and severally liable for the above amount and in default of payment of decretal amount within 45 days will have to pay an interest of Rs.12% from the date of judgment.
Given under our hand and seal of the District Forum, Kamrup , this the 3rd day of March ,2020.
Member Member President
