DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.402 of 2017
Date of institution: 07.06.2017
Date of decision : 01.03.2018
Charanjit Singh son of Gurmail Singh, resident of 107, VPO Mundhon Sangtian, Tehsil Kharar, District, SAS Nagar, Mohali, Punjab.
…….Complainant
Versus
1. Xiaomi Technology India Private Limited, having its registered office at 8th Floor, Tower-1, Umiya Business Bay Marathahalli- Sarjapur, Outer Ring Road, Bangalore, Karnataka, India Pin Code 560103 E-mail – service.in@xiaomi.com.
2. HCL Services Limited, Xiaomi Exclusive, Authorised Service Centre Red-Mi Mobile Phones, SCO No.2471-72, Sector 22-C, Chandigarh.
3. E-Mobiles, Anjaneya Infrastructure Project No.38-39, Soukya Road, Kacherakanahalli Hoskote Taluka, Bangalore, Rural District Bangalore 560067, Karnataka, India through its Authorised Representative.
4. Amazon Seller Services Private Limited, having its registered office at Brigade Gateway, 8th Floor, 26/1, Dr. Raj Kumar Road, Malleshwaram (West), Bangalore 560055, Karnataka, India through its authorised signatory.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Complainant in person.
OP No.1,2 and 3 ex-parte
Ms. Rupinder Pal Kaur, counsel for OP No.4.
Order by :- Shri G.K. Dhir, President.
Order
Complainant booked a mobile hand set of Redmi 4A Colour Gold 16 GB with OP No.4 on 10.04.2017. 5-6 days after such booking, the said mobile hand set was sent at the residential address of complainant. The mobile hand set was sold by OP No.3 through OP No.4. Option of cash on delivery was exercised by complainant for purchase of above said mobile hand set and that is why the mobile hand set was handed over to complainant on payment of Rs.5,998/- by representative of OPs. Copy of invoice dated 13.04.2017 in this respect is produced with the complaint. Few days after purchase, the mobile hand set started giving trouble because the battery stopped functioning and even the same started deforming. Thereafter complainant approached OP No.2, the authorised service centre of manufacturer i.e. OP No.1. Representative of OP No.2, the service centre disclosed that there was tampering with the mobile hand set of the complainant and as such same cannot be considered under warranty period. Mobile hand set of the complainant is alleged to be beyond repairs and as such replacement of same sought because the battery of mobile cannot be detached due to fixation of same with mother board of mobile hand set. Complainant claims to have never tempered with the mobile hand set in question. It is representatives of OP No.2, who themselves opened the mobile hand set without permission and consent of the complainant. Job card dated 16.05.2017 was issued. On request by complainant to officials of OP No.2 for replacement of the mobile hand set, they claimed as if there is manufacturing defect in the mobile hand set, due to which problems in working of the same started within one month from the date of purchase. Representative of OP No.2 sought payment of charges for checking of mobile in question of amount of Rs.120/- and the same were paid, but despite that OP No.2 did not issue any receipt with ulterior motive for harassing, humiliating and pressurizing the complainant. Officials of OP No.2 refused to replace the mobile set of complainant and as such by pleading adoption of unfair trade practice by OPs, this complaint filed for seeking refund of the price of Rs.5,998/- or in the alternative for replacement of the mobile set in question with new one of similar model. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.21,000/- more claimed.
2. OP No.1 to 3 are ex-parte in this case.
3. OP No.4 filed reply by pleading inter alia as if OP No.4 is an intermediary and as such cannot be fastened with liability owing to provisions of Information Technology Act, 2000; complainant is not consumer of OP No.4; this Forum lacks territorial jurisdiction because as per Clause-22 of conditions of use, exclusive jurisdiction is of the courts at Delhi. Reply is filed through Rahul Sundram, who has been authorised through resolution of Board of Directors. OP No.4 does not sell or offer for sale any product, but it merely provides an online market place, where independent third party sellers can list their products for sale. OP No.4 is not responsible for the products that are listed on the website. OP No.4 even does not intervene or influences any customer in any manner. In fact OP No.4 is not directly involved in sale transaction between customer and seller. Rather contract of sale of products on the website is strictly bipartite contract. Mall/shopping complex managements are not responsible or liable for the acts of omissions of independent third party sellers. Complainant is alleged to be not consumer within meaning of Section 2 (1) (d) of the Consumer Protection Act because role of OP No.4 is just a facilitator. Seller of the product in this case is OP No.3. Relationship between OP No.4 and between seller is on principal to principal basis and the present complaint alleged to be filed against OP No.4 without any plausible reason or cause of action. Even if for arguments sake OP No.4 is taken an agent of OP No.1 the manufacture, despite that in view of specific provisions of Section 230 of Indian Contract Act, liability remains of the seller, being principal. OP No.4 does not possess the facility of ascertaining the alleged defects in the product, more so when warranty is provided by manufacturer subject to warranty terms and conditions. OP No.4 has no role to comply with the terms and conditions of warranty. If OP No.3 has not repaired the mobile to the satisfaction of complainant, then OP No.4 cannot be fastened with liability. As such prayer made for dismissal of the complaint.
4. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and Ex.C-2 and thereafter closed evidence. Counsel for OP No.4 tendered in evidence affidavit Ex.OP-4/1 of Rahul Sundram alongwith documents Ex.OP-4/2 to Ex.OP-4/6
5. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
6. Purchase of mobile hand set in question by complainant after availing online services of OP No.4 from OP No.3 is proved by invoice Ex.C-1. This mobile was purchased on payment of Rs.5,998/- and delivery of the same was taken by complainant after issue of this invoice of 13.04.2017. However, defect developed in this mobile resulting in battery deformation due to which the same was got inspected by complainant from OP No.2, the service centre of manufacturer namely OP No.1, as revealed by contents of Ex.C-2. This checking got done on 16.05.2017 as per Ex.C-2 and as such certainly submissions advanced by complainant has force that in fact defect in the mobile set in question surfaced within less than 2 months of receipt of delivery. It is the case of complainant that he has not tempered with mobile set, but despite that in the inspection sheet Ex.C-2 mention made as if the mobile is out of warranty. How the mobile went out of warranty within less than 2 months of its purchase, qua that no mention made in Ex.C-2 and as such only reasonable and probable inference that can be drawn is that actually the defect of battery deformation took place in the mobile and that is why the same taken to service centre. As defect in the mobile owing to batter deformation took place on account of some manufacturing defect and not in the process of transportation of the same and as such certainly OP No.4, intermediary providing platform for sale of products manufactured by OP No.1 cannot be held liable at all because the manufacturing defect or the defects otherwise arising from due use of mobile liable to be rectified either by manufacturer or service centre or by seller.
7. Contents of affidavit Ex.OP-4/1 of Rahul Sundram fully believable that OP No.4 is neither manufacturer, nor offers for sale the products like in question, but the contract of sale or purchase through website is bipartite contract between consumer and seller and as such OP No.4 being intermediary cannot be fastened with liability. Conditions for availing services of OP No.4 are mentioned in Ex.OP-4/4. As per condition No.3 contained in Ex.OP-4/4, amazon.com just provides website online platform for enabling the purchaser of the products, listed on the website, to purchase them at the prices indicated therein from any location. Further in this condition No.3 of Ex.OP-4/4 it is specifically mentioned that contract of sale of product on the website of OP No.4 shall be strictly bipartite contract between consumer and seller. Condition No.13 of Ex.OP-4/4 further provides that OP No.4 will not be liable or responsible for any actions or inactions of sellers or of breach of conditions, representations or warranty by seller or manufacturer of the product. As these conditions No.3 and 13 of Ex.OP-4/4 specifically provides that OP No.4, the intermediary in transaction of sale of purchase of mobile in question by complainant from OP No.3, is not responsible for breach of any terms and condition or representation or of warranty and as such in view of claim of complainant regarding defect in the mobile set in question, certainly OP No.4 cannot be rendered liable, more so when it is neither manufacture nor service centre or manufacturer and nor is seller. Rather OP No.4 just provides online platform for facilitating the purchasers to choose the products of their choice and then place order. Products to be sold and dispatched by the seller and as such they never comes in hands of OP No.4 at any point of time. Being so, role of OP No.4 remains of intermediary only and as such in view of condition No.3 and 13 of Ex.OP-4/4, certainly OP No.4 cannot be fastened with liability regarding alleged defects.
8. It is the claim of complainant that OP No.2, service centre of OP No.1 charged Rs.120/- for checking of mobile hand set in question, but he refused to issue receipt and that certainly is deficiency in service on part of service centre i.e. OP No.2 because as and when money is charged by service provider from the customer, then he is bound to issue receipt of received payment. Defect in the mobile has not been removed, despite repeated requests and as such complainant entitled for replacement of mobile set in question with new one of equal model or of equal worth, but subject to deposit of mobile set in question by complainant with OP No.2, service centre of OP No.1. After receipt of mobile set in question by OP No.2 from complainant, it will be his responsibility as agent of OP No.1 to contact the concerned for getting provided replaced mobile set in question within 40 days provided the mobile set in question is deposited by complainant with OP No.2 within 10 days of receipt of certified copy of order. As due to denial of facility of rectifying the defects, complainant suffered mental agony and harassment and as such he is entitled for compensation for mental harassment and agony and also to litigation expenses from OP No.1 to 3 only whose liability as manufacturer, service centre and seller held as joint and several. However, complaint against OP No.4 merits dismissal.
9. As a sequel of above discussion, complaint dismissed against OP No.4 but same allowed against OP No.1,2 and 3 with direction to replace the mobile set in question with new one of model of equivalent worth within 40 days from date of receipt of certified copy of this order provided complainant deposits the mobile set in question with service centre i.e. OP No.2 within 10 days of receipt of certified copy of order. Compensation for mental harassment and agony of Rs.3,000/- and litigation expenses of Rs.2,000/- more allowed in favour of complainant and against OP No.1 to 3 only, whose liability is held as joint and several. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. Free certified copies of the order be supplied to the parties, as per rules. File be indexed and consigned to record room.
Announced
March 01, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
