The case of the complainant is that he made an online purchase of a YU Yureka (Moondust Grey) mobile set on 08.05.15 from OP No. 3 through the Website of OP NO.2. It was found defective on use and the complainant deposited the mobile on 26.09.15 for repair to the OP No.1 who detected & disclosed the defect as “Sensor not work”. The OP No.1 told the complainant that the set required to be sent to the seller for doing the needful but subsequently sent the repaired mobile directly to the complainant at wrong address and as such it did not reach the complainant. When the complainant enquired about the mobile, the OP No.1 told that he has nothing to do and the complainant may take any action he likes.
The complainant ultimately sent lawyer’s notice dated 17/05/16 to all the OPs demanding the return of the cost with interest and other compensation. The OP No.1 received the said notice on 20.05.16, OP No. 2 received the same on 24.05.16 but OP No. 3 refused to receive and the envelope containing the said notice returned unserved.
The complainant apprehends that the Mobile set was either unrepairable or lost from the custody of the OP No.1. He is no more interested to get the set back as there is no guarantee that it would work properly as he believes out of his sufferings for a considerable period. Hence, this case.
OP No.3, though refused to receive the legal notice but contested the case and argued that they are only online seller and not the manufacturing company. Complainant had purchased the product from them on website of OP No. 2. Being the seller on different products on the website, they do not provide any warrantee/or after sale service. It is the manufacturer who is liable for defect, if any. The OP No.3 is not an authorized service centre of the manufacturer nor do they have any control or say over the OP No.1, the repairing centre at Siliguri.
OP No.3 further contended that they have their registered office in New Delhi and corporate office in Bangalore and no branch office anywhere, Or within the territorial jurisdiction of this Forum, in particular. They have no relationship with the OP No. 1 nor are they aware of any existence of the OP No.1. They do not have any knowledge also as to whether the OP No1 is the authorized service centre of the manufacturer or not.
In relation to the alleged defect, the complainant had no dealing with the OP No.3 whose role is limited to selling the product of manufacturer to the complainant. The dealer or retailer cannot be held liable for defect in the product and it is the manufacturer who gives guarantee/warrantee.
OP No.2, i.e. Amazon Seller Service Pvt. Ltd. (ASSPL), having their registered office in Bangalore, manage and operate “www.amazon.in” website and thus provide an online marketplace where the sellers independently list their products for sale. OP No.2 further stated that they neither sell nor offers to sell but only a facilitator. The condition relating to customer’s use of website (available in the website itself) are explicitly agreed to by the customer by virtue of their use of the website. The sale of product on the website is a matter in between the customer and the seller.
The ASSPL, OP No.2, further argues that the complainant has not bought any goods from them, nor has the complainant paid any consideration amount for the purchased product. The seller, as an independent third party is selling its product on the website operated by the OP. Thus ASSPL’s website is an e-platform that enables the customer to purchase products listed on the website. Thus the OP No.2 i.e., ASSPL disclaim any liability and responsibility in regard to the warrantee/guarantee supposed to be provided by the seller who is OP NO.3 or the manufacturer who is not made a party to the case. The complainant just purchased the mobile set from Cloudtail India Pvt. Ltd. (OP No.3) from the website of OP No.2 (ASSPL).
The complainant contacted the customer service Team of OP No.2 on 18.05.15 and reported the issue with the product. The said team informed the complainant to create a return for a full refund. The return was created on the same day and that team requested the complainant to self-return the order as the pick-up was not available as per the “Return Policies” enumerated on the website, of the OP No.2. However, the order was not returned and there is no correspondence with the customer service team of the OP No.2 after 18.05.15. Thus there was no negligence on the part of the OP No.2.
ASSPL neither has the knowledge nor the facility to ascertain if the alleged defects in the product are due to the manufacturing flaws or for customer abuse and it is only the manufacturer and the service centre of the manufacturer who resolve any such alleged defect in the product.
OP No.1, the repairing centre at Siliguri has received the mobile set for repair on 26.09.2015 and prescribed the defect as “sensor not work” and told the complainant that the set required to be sent to the seller for doing the needful. But subsequently the OP No.1 sent the repaired mobile directly to the complainant but in wrong address and as such it did not reach the complainant. When the complainant enquired about the mobile, the OP NO.1 told that they had nothing to do and the complainant might take action as liked.
The complainant ultimately sent legal notice dated 17.05.16 to all the Ps and the OP No.1 received the same on 20.05.18. However, OP NO1 refused to receive summon sent through the messenger of this Forum and the case proceeded ex-parte against him (OP No.1).
To prove the case, the complainant has filed the following documents:-
- Deposit of Mobile with Micromax Care on 26.09.2015.
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- Invoice dated 08.05.2015 of seller Cloudtail Indi Pvt. Ltd Mewat.
- About us Amazon in.
- Several exchange of e-mails.
- P.D Dalmia’s legal notice dated 17.05.2015.
- Tracking report of delivery of regd. Postal articles.
- Return regd. Letter undelivered addressed to Cloudtail India Pvt. Ldt. Mewat 122105. Seller.
The complainant has not made the manufacturing company a party to the case. It was obligatory on the part of the complainant to substantiate his case on 2(two) grounds:- (1) the complainant did not send the defective product to OP No.2 and 3 plus (2) OP No.2 & 3 run their business not within the territorial jurisdiction of this Forum. Complainant’s argument that neither of their OP No.2 and 3 provided the name and address of the manufacturer in their W/V is not acceptable as the complainant himself contended in his W/N/A that he had been sending several e-mail to the manufacturer but except ticket No, nothing was heard from the manufacturer. The complainant could have procured of the postal address of the manufacturer using that e-mail. The mobile set was taken to OP No.1 for repair after four and a half month and this time span admit of doubt whether the defect are manufacturing in nature or due to not properly following user’s manual. The OP No.1, Micromax service centre belongs to the brand of its own and the complainant could not provide any documentary evidence that it is a repairing centre also authorized by OP No.2 and 3. It is incumbent upon the complainant to check the terms and conditions of sale of the OP No.3 and of online market provided by the OP No.2 uploaded in their website.
On basis of the respective submissions of the parties, the following points for determination are framed.:-
- Whether the OPs are within the territorial jurisdiction of this Forum,
- Whether the OPs have any deficiency in service/committed any unfair trade practice, and
- Whether the complainant is entitled to get any relief.
Point-wise Decision with reason
Determination point No.1:- The complainant has made the supplier/seller, e-market platform provider and also the repairer, parties to the case but not the manufacturer though it is the manufacturer who gives the guarantee/warrantee. The complainant deposited the mobile set for repair with the OP. No.1, only who runs his business at Siliguri. That the OP No. 1 is the service centre or agent or work at Siliguri for and on behalf of the OP No.2 and 3 or conversely OP 2 and 3 are the Head Office/controlling authority of OP No.1, could not be documentarily established by the complainant. Therefore, it cannot be said that the OP No.2 & 3 having their offices at Bangalore and New Delhi respectively have OP No.1 as their Branch Office at Siliguri. So, the OP No.2 & 3 do not fall within the territorial jurisdiction of this Forum. OP No.1 who runs his business of servicing mobile handset at Siliguri and received the set for repair falls within the territorial jurisdiction of this Forum.
Determination point No.2:- It is the OP No.1 who is responsible to return it to the customer if he has no technical know-how to make such a defect good. The OP has not yet returned the mobile ––––––– as it is or repaired ––––––– to the complainant. Complainant apprehend that it might be lost from the custody of the OP No.1 and in such a case OP No.1 should have compensated the complainant by an amount equal to the price of the Mobile. By refusing to receive the summon of this Forum, OP No.1 proved that he is in fault position. Thus, OP No.1 has not only deficiency in service but also committed unfair trade practice.
Determination point No.3:- Even if it is an issue in between the manufacturer and seller or seller and e-market provider, yet for this, the complainant cannot be made to suffer. The seller receiving the price for the product is equally liable for replacement or for sending the defective product to the manufacturer for its inspection and doing the needful. But it is equally true also that the product was not returned to the OP No.2 or 3, but taken to OP No.1 for repair. All the points are thus disposed of.
In the result, the case succeeds on contest in part.
Proper fee paid.
Hence, it is,
O R D E R E D
that the Consumer Case No. 62/S/16 be and the same is, hereby allowed in part ex-parte against OP No.1 and dismissed on contest against OP No.2 & 3.
OP No.1 shall repair the mobile to the full satisfaction of the complainant and give the same back to the latter or compensate the complainant with liberty to complainant’s option by paying an amount equal to the price of the mobile, i.e., Rs. 8,999/- (eight thousand nine hundred ninety nine rupees) plus an amount of Rs. 6,000/- (Six thousand rupees) for mental harassment and agony, totaling a sum of Rs. 14,999/- (Fourteen thousand nine hundred ninety nine rupees). The OP No.1 shall pay the said sum to the complainant within 45 days from the date of this order, failing which the award will carry interest @ 9% per annum from the date of this order till its realization in full.
The OP No.1 shall further pay the complainant Rs. 5,000/- (Five thousand rupees) towards his legal expenses and cost of proceedings.
In case of default, the complainant will be at liberty to put this order into execution through this Forum as per law.
Let copies of this judgement be supplied to the parties free of cost.
