By. Smt. Renimol Mathew, Member:

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to get back the price of mobile set together with cost and compensation.

2. Brief of the complaint:- The complainant alleges that he had placed an Order of MI Redmi 2 Prime 4G (16 GB, White) amounting to Rs.6,999/- bearing order id 404-5693012-7097110 from the seller from the website of the opposite party on 08.10.2015, but the said product started malfunctioning within few months and even after repairing the problem persisted and therefore approached before this Forum and prays for Rs.50,000/- towards compensation, Rs.50,000/- on account of mental harassment and Rs.6,999/- towards the product.

3. Notice served to opposite parties. Opposite party No.1 and 2 has not appeared before the Forum and set ex-parte. Opposite party No.3 and 4 appeared and filed written version.

4. Brief version of opposite party No.3:- Opposite party No.3 stated that Amazon Seller Services Private Limited neither sells nor offers to sell any products and merely provided an online market place where independent third party sellers can list their product for sale. The seller themselves (and not ASSPL) are responsible for their respective listings and products on the Website. ASSPL is neither responsible for the products that are listed on the Website by various third party sellers, nor does ASSPL intervene or influence any customers in any manner. ASSPL is not involved in the sale transaction between the customer and seller. The conditions relating to the customer's use of the Website (as expressly available on the Website) and specifically agreed by the customers state that ASSPL is only a facilitator and cannot be a party to control in any manner any sale transaction on the Website. The contract of sale of products on the Website is strictly a bipartite contract between the customer and the seller. Opposite party No.3 further stated that the complainant does not fall within the definition of consumer under the Consumer Protection Act that admittedly the complainant has not bought any goods from ASSPL. The deficiency alleged in the present complaint cannot be attributed to ASSPL by any means whatsoever. Hence the allegations made in the complaint are frivolous, baseless, misconceived and the complaint is liable to be rejected.

5. Brief version of opposite party No.4:- Opposite party No.4 denied the averments in the complaint. This opposite party is not an authorized service center of 1^st opposite party. This opposite party not known the alleged defects in the mobile phone. It is not believable that other opposite parties advised the complainant to approach this opposite party because this opposite party is not an authorized service center. On 08-06-2016 the complainant approached this opposite party with his mobile and told that the mobile phone was fell down in mud water and it was in off stage, then it was opened and found that mud water in the phone and due to the liquid complaint there are some defects in the part connected with battery and due to the liquid waste in the phone the battery discharged. Since the liquid damages are not covered by the warranty of the phone, this opposite party repaired the mobile with consent of the complainant and charged Rs.300/- the complainant totally admitted his negligence in handling the mobile and paid the repair charge with this opposite party and issued proper invoice to the complainant. The complaint is due to the warranty violation the opposite party charged the repair cost and it was also convinced to the complainant. Since the complainant aware of the term of warranty and in clause 5 of warranty that "during the warranty period in the event of violation which defined as customer induced damages such as self repair, exposure to water, damages caused to misuse, alteration etc.. and has not reported any defects as bad signals, over heat, discharging the entire battery, impossible to transfer data etc. and not reason for the same. Since the defects occurred to the hand set is due to the negligence on the part of the complainant, the complainant not complained anywhere. This opposite party is not a necessary party in the proceedings and not an authorized service centre of the other opposite parties, hence the complaint is bad for mis-jointer of parties and at the same time the HCL Services Limited, Midland Arena, Cochin RMPC, Marottichuvadu, Cochin is the authorized service centre of the 1^st opposite party and the authorized service centre is a necessary party in the proceedings and the complaint is bad for non-jointer of necessary parties.

6. As per the Order in IA.513/2016 an Expert Commissioner inspected the mobile phone and report filed. Opposite party No.3 and 4 objected the Commissioner Report by filing written objections.

7. On perusal of complaint, version and documents the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?.

2. Relief and Cost.

8. Point No.1:- Complainant adduced evidence as PW1. Ext.A1 to A4 documents and Ext.C1 Commission Report were marked. Complainant argued that he had purchased a mobile phone bearing IMEI No.867935024000688 and 867935024000696 by the month of February 2016 itself the phone started to show bad signals like over heat, discharging the entire battery within a short time and it is impossible to transfer data through data cable. PW1 reported the matter to opposite parties. 4^th opposite party, the authorized service centre serviced the set by charging Rs.300/- during warranty period. Even after repair the alleged defects were not cured, hence approached before the Forum.

9. Opposite party No.1 and 2 the manufacturer and seller not contested the matter even after the receipt of notice. Opposite party No.3 and 4 the online marketing agency and service centre contested the matter. Expert's report was marked as Ext.C1. In Ext.C1 Commissioner reported that the mobile is working normal on that day of inspection, but he reported that ''while using mobile phone body is heating, temparature is not too high but it is not in normal level''.

10. Opposite party No.3 argued that there is no consumer relation in between these opposite party No.3 and the complainant. The complainant has not bought any goods from ASSPL nor has the complainant paid any amount/consideration to ASSPL and there is no privity of contract in between the complainant and the opposite party No.3. If there is any manufacturing defect in the disputed handset it is only the manufacturer and the service centre, who can resolve the issue. They are only providing online platform to the customers. Opposite party No.4 argued that on 08-06-2016 the complainant approached this opposite party with his mobile and told that the mobile phone was fell down in mud water and it was in off stage, then it was opened and found that mud water in the phone and due to the liquid complaint there are some defects in the part connected with battery and due to the liquid waste in the phone the battery discharged. Since the liquid damages are not covered by the warranty of the phone, this opposite party repaired the mobile with consent of the complainant and charged Rs.300/- the complainant totally admitted his negligence in handling the mobile and paid the repaid charge with this opposite party and issued proper invoice to the complainant. The complaint is due to the warranty violation the opposite party charged the repair cost and it was also convinced to the complainant.

11. On going through the evidence and records it appears that through Ext.A4 the disputed mobile phone showed defects during warranty period. The handset was repaired on 08.06.2016 by opposite party No.4 and collected Rs.300/- as repair charge but the reason for the defect has not been stated in Ext.A4. So as MO-1 has not been produced before this Forum. Opposite party No.3 and 4 objected Commissioner Report, and identity of the inspected mobile set too.

12. Commissioner has not reported any major manufacturing defects with respect to the disputed set, it showed over heating during warranty period, but the commissioner failed to give a proper reason for the overheating of the mobile set but he has not reported the presence of any water entry or liquid waste in the phone as alleged by opposite party No.4. Hence based on the available records and evidences we opine that opposite parties are deficient in providing service to the complainant. Opposite party No.4 collected repair charge during warranty period and the alleged defect of ''heating'' is still existing even after repair by opposite party No.4. since manufacturer and seller (opposite party No.1 and 2) remains ex-parte complainant is entitled to get compensation from the opposite parties. There is no deficiency of service proved against opposite party No.3. Point No.1 is found accordingly.

13. Point No.2:- Since the Point No.1 is found in favour of complainant, he is entitled to get cost and compensation. Point No.2 is decided accordingly.

In the result, the complaint is partly allowed and opposite party No.4 is directed to return Rs.300/- (Rupees Three Hundred) collected as service charge to the complainant and repair the existing defects of the mobile phone as per Ext.C1. Opposite party No.1 and 2 are directed to pay Rs.5,000/- (Rupees Five Thousand) as cost and compensation. This Order must be complied by the opposite parties within 30 days from the date of receipts of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 31^st day of January 2018.

Date of Filing:14.07.2016.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Sujith Krishnan. V. K. Selection Grade Typist, Munsiff Court, Kapetta.

CW1. Umesh. A. C. Associate Professor, Electronics and Communications,

Government Engineering College, Mananthavady.

Witness for the Opposite Parties:-

Nil.

Exhibits for the complainant:

A1. Retail/Tax Invoice/Cash Memorandum. Dt:08.10.2015.

A2. Statement of Account.

A3. Warranty Sheet.

A4. Repair Invoice. Dt:08.06.2016.

C1. Commissioner Report. Dt:23.02.2017.

Exhibits for the opposite parties:-

B1(Series). Board Resolution, Authorization Letter and Conditions of Use (16 Pages).

Sd/-

PRESIDENT, CDRF, WAYANAD.

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