Orissa

Rayagada

CC/150/2017

Sri Laxmi NARAYANA Padhi - Complainant(s)

Versus

The Vice President Country Manager, Amazon India - Opp.Party(s)

Sri L.N. Padhi

01 Oct 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.150 / 2017.                                 Date.     01   .     10  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,              President.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

Sri Laxmi Narayana Padhi, S/O: Ramakrishna Padhi, At:Brahmin Street,Side of Durgapuja Pendal,   Po/Dist:Rayagada,  765 001  (Odisha)                                                                                                                                           …. Complainant.

Versus.

1.The  Vice President and Country manager, Amazon India, Brigate Gateway, 8^th. Floor, 26/1, Dr. Rajkumar Road,  Malleshwaram(W),Bangalore- 560055, Karnataka State, E-mail ID-Amaznindpr@amazon.com.                             

2.Director, Amazon Seller Services Pvt. Ltd., 8^th  Floor, Brigade Gate Way, 26/1, Rest address as above.

3.The Director, Cloudtail India  Pvt. Ltd., Ground Floor Rear portion,H-9, Block-B-1`Mohan  Cooperative, Industrial Area, Mathura Road,New Delhi, South Delhi,-110044  India E-mail. ID- nd. Floor, Unit No.24, Kondivita Lane, Next to VITS Hotel, Office Andheri Kurla Road, Andheri(East),Mumbai- 400059.                             .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self.

For the O.P. No.1 to 3 :-  Sri Onkar Gujar and Sri K.K.Patnaik, Advocates.

For the O.Ps 4:- Set exparte.

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non replacement of ADSL Router/Modem which was found defective during warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant. 

Upon  Notice, the O.Ps No.1,2 & 3 put in their appearance and filed  written version through their learned counsels in which  they refuting allegation made against them.  The above O.Ps  taking one and another pleas 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.P  No. 1 to 3. Hence the O.P No.  1 to 3 prays the forum to dismiss the case against  them  to meet the ends of justice.

Upon  Notice, the O.P No.4  neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.4.  Observing lapses of around 1 year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P No.4. The action of the O.P No.4 is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.4 was set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

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

The  parties advanced arguments inter alia  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 ADL Router/Modem Wireless N 300  ADLS2 + Router from the O.P.  No.4 through  on line booking vide  order No. 171-3132999-3583566 on Dt.7.10.2017 which was received by the  complainant on Dt.11.10.2017 vide invoice No.  HYD8-1004-1718 Dt.7.10.2017  by paying a sum of Rs.1,249/-  with  one year warranty (Copies of the bill is in the file which is marked as Annexure-I. But unfortunately after delivery  with in few months the above  set found defective and not functioning. The complainant complained the O.Ps  for necessary replacement in turn the Ops  had paid deaf ear.   The complainant further approached the O.Ps for return the money which he spent but for no use.  Hence C.C. case.

                 In support of his case the O.P. No.1 & 2 relied  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 prowers 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 SinghalVrs. 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.,  andors., 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.

                          Further   the Hon’ble Supreme Court in  Civil appeal No. 5168 of 2000 (Sanchayani Savings Investment (I) Ltd. & Ors. Vrs. State  of Bengal   & ors. has  held   thatr “an intermediary within the definition of Section 2(w) of the IT Act, 2000 and also that under Section -79 of the  Act, the intermediary  is exempted from any liability arising out of material that is put up on website. He, therefore, point out that these kind of application will prevent the intermediaries from doing  their business lawfully”.

                           Further as per clause 2.3(vii) of the press note 3(2016 series) issued by the Department of Industrial policy & promotion, Ministry of commerce and industries, Govt. of India dtd. 29.3.2016, in a market place model like that of the  O.P. any warranty/guarantee of goods and services sold will be the responsibility of the seller and not that of the  online platform provider like the O.P.  No.2.

                         The O.P. No. 1 & 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 1 & 2  marketplace are supplied by the seller and purchased by the consumer.  At no stage in the transaction does the  O.P. No. 1 & 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 1 & 2 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.1 & 2 in their  written version  clearly mentioned that the O.P. No.1 & 2  neither  have 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.1 & 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 citations and discussion the  O.P. No. 1 & 2  have not liable to replace or refund the above product amount  but the O.P. No.  4  is held responsible   in this case  and the O.P. No. 4 is liable to pay.

                It is submitted by the O.P No.3  in their written version  that  the modem sold by the O.P No.3 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.3  is not the manufacturer of the product but only sells its online.  The product purchased by the complainant is manufactured by O.P. No.4 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. 3  is limited to selling the product of the manufacturer  to the complainant , since electronic devices come in a sealed box, the O.P No.3  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.3   as it is neither a proper nor necessary party. The O.P  No.3 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  impleaded the manufacturer as opposite party  No.4.  The reliefs prayed for by the complainant  are wholly unreasonable and unsustainable in law and the O.P No.3 is  not liable to pay any compensation to the complainant and thus the complaint against the O.P No.3  is liable to be dismissed.

             In support of his case the O.P. No. 3 relied  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 defects in a product and not the dealer/seller or retailer.  Hence, this complaint is not maintainable against the O.P No.3

The O.P No.3 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.

            During the course of hearing the Complainant  argued that  after receipt of  notice from  the Forum the  O.Ps  have  replaced the above product with a new  one. But the complainant submitted that due to non functioning of the above product the  complainant unnecessarily  had paid  two months  rent towards Net @ Rs.750/- per month total Rs.1,500/- to the BSNL company.   Further the complainant submitted    that the O.Ps have sold a defective  product  to the complainant and claimed that the O.Ps caused deficiency in service and deprived of the complainant of enjoyment of the above set  since the date of  its purchase  which caused mental agony and harassment to the complainant.

Now we have to see whether there was any negligence of the O.P No.4   in providing  after sale service  to the complainant as alleged ?

We perused the documents filed by the complainant.  Since the above product found defective after its purchase    and   the complainant had   informed the O .Ps regarding the defect but the  O.Ps had   failed to remove  the defect . At this stage we hold that  if the above set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective  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 above  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 above  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 above set  for such  and the defects 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.4.

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.PS.

            The O.P. No.4 (Manufacturer)  is directed to pay  Rs.1,500/- towards  rent  of  Net inter alia to pay Rs.500/- towards litigation expenses.

            The  O.P No.1,2 & 3  are directed to refer the order to the O.P.No.4 (Manufacturer) for early  compliance.

            The entire directions shall be carried out with in 60 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        1^st.       day of  October, 2018.

MEMBER                                             MEMBER                                             PRESIDENT