DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.360 of 2017
Date of institution: 17.05.2017 Date of decision : 10.07.2019
Balwant Singh son of Late Shri Sohan Singh, resident of village Durali, Tehsil and District SAS Nagar, Mohali, Punjab.
…….Complainant
Versus
1. Yu Yuphoria having its head office at Micromax House 90B, Sector 18, Gurgaon through its Proprietor/ Partner/ Director.
2. Luxmi Communications, Authorised Service Centre, Yu Yuphoria, SCF No.78, 1st Floor, Phase II, SAS Nagar, Mohali, Punjab through its authorised signatory.
3. Parekh Communication, TCI Supply Chain Solutions, Plot No.3, Mihan SEZ, Near Khapri, Village MADC, Nagpur, Maharashtra 441108, India.
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,
Mrs. Natasha Chopra, Member.
Present: Shri Gurinder Singh Padiala, counsel for complainant.
OP No.1, 2 and 3 ex-parte.
Shri Inderjit Singh, counsel for OP No.4.
Order by :- Shri G.K. Dhir, President.
Order
Complainant booked a Yu Yuphoria (4G) mobile from OP No.4 on 16.05.2016 and same was received at residential address of complainant at Mohali after 5-6 days. Under the opted cash on delivery scheme, complainant paid amount of Rs.7,449/- . That mobile set was sold by OP No.3 vide invoice dated 16.05.2016. This mobile set started giving problems because it stopped functioning suddenly on 02.03.2017. Complainant contacted OP No.2 authorised service centre for removal of problems because mobile was within warranty. Mobile set was handed over to OP No.2, who prepared job sheet dated 04.03.2017. Return of mobile set after repair within 10 days was assured by OP No.2, but when after stipulated period of 10 days complainant contacted OP No.2, then he found that mobile set is still lying in the same condition as in which it was handed over to OP No.2. Again assurance for return of mobile set within 7 days was given by OP No.2, but mobile set not returned even after this period of 7 days. Complainant claims to have visited OP No.2 number of times for getting delivery of mobile set, but OP No.2 has not done anything. Said mobile set was returned to complainant on 13.04.2017 i.e. after lapse of more than one month. Assurance was given to complainant as if mobile set is in perfect condition, but when complainant after reaching at house switched on the mobile set, then he faced same problem as was earlier faced by him. Complainant visited premises of OP No.2 on 15.04.2017 again and job sheet was prepared. Assurance for delivery of mobile set within 7 days after repair was given, but even after lapse of period of 7 days, mobile set was not repaired. Complainant again contacted OP No.2 on 10.05.2017 and at that time OP No.2 disclosed as if they have discussed the matter with Head Office, but due to non availability of parts of mobile set, it cannot be repaired. Assurance was given for replacement of mobile set of complainant after 5 days. However, on 16.05.2017 when complainant again visited OP No.2 then representative of OP No.2 claimed that they will not replace the mobile set and even necessary repairs were refused. OP No.2 was fully aware that warranty of mobile set in question was to expire on 16.05.2017. With that knowledge nothing was done by OP No.2. Efforts of complainant for repair of mobile set or replacement thereof remained futile and that is why this complaint for seeking refund of paid price of Rs.7,499/- or in the alternative replacement of mobile set with new one of similar model is sought. Compensation for mental agony and harassment 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. However, OP No.4 has filed reply for claiming that OP No.4 runs, manages and operates online market place known as www.amazon.in and as per “conditions of use” of website, ASSPL is only a facilitator having no control over the manner of sale transaction. Shorn off unnecessary details of the written statement, it is claimed that contract of sale of product on the website of OP No.4 is strictly a bipartite contract between customer and the seller. OP No.4 provides market place, where independent third party sellers can list their products for sale, but without responsibility of OP No.4. Transaction in question conducted by complainant with independent third party seller from a virtual mall/shopping complex. Manufacturer/seller is responsible, but not OP No.4 for the independent acts of omission or commission of seller/manufacturer. OP No.4 claims exemption from obligation in view of provisions of Information Technology (intermediaries guidelines) Rules 2011. Complainant is not consumer of OP No.4 because the goods purchased by complainant from a seller, selling its products on the website operated by OP No.4. Being so, OP No.4 is neither a necessary and nor proper party. Complaint alleged to be false, frivolous and misconceived, more so when there is no privity of contract between complainant as buyer and OP No.4. Extract from Clauses 3, 13 and 22 of conditions of use are quoted in the reply for denying liability, but by claiming that complaint has been filed against OP No.4 without any cause of action. By denying other averments of the complaint, prayer made for dismissal of the complaint.
3. Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-3 and thereafter closed evidence. On the other hand, counsel for OP No.4 tendered in evidence affidavit Ex.OP-4/1 of Rahul Sundaram, authorised representative of OP No.4 alongwith documents Ex.OP-4/2 to Ex.OP-4/6 and thereafter closed evidence.
4. Written arguments submitted by complainant, but not by OP No.4. Oral arguments heard and records gone through.
5. Ex.C-1 is invoice showing purchase of mobile in question by complainant through OP No.4 from OP No.3 on price of Rs.7,499/-. This invoice Ex.C-1 is dated 16.05.2016 and delivery of mobile phone took place at residential house of complainant in Sector 101, Mohali as per contents of complaint and the supporting affidavit. This mobile developed defects on 02.03.2017 because it stopped functioning as per contents of complaint and the supporting affidavit and that is why complainant contacted OP No.2 service centre of manufacturer i.e. OP No.1, on 04.03.2017 as revealed by copy of prepared job sheet Ex.C-2. In this job sheet Ex.C-2 address of complainant is mentioned as resident of Sector 101, Mohali and as such it is obvious that complainant approached service centre of manufacturer at Mohali for redressal of problem of power boot failure within warranty period. However, it is the case of complainant that this mobile set kept for repair by OP No.2 for more than one month, despite the fact that assurances were given twice for repair of the same within 10 days in the first instance and then of 7 days in the next instance. Complainant claims that mobile set was returned to him only on 13.04.2017 i.e. after one month. However, the mobile set again developed defects and that is why same was taken to OP No.2 on 15.04.2017, when job sheet Ex.C-3 was prepared. In view of this it is contended that the faults referred in Ex.C-2 and Ex.C-3 took place within warranty period due to which complainant entitled for repair of mobile set or replacement thereof. These submissions advanced by counsel for complainant has force particularly when further contents of complaint and the supporting affidavit Ex.CW-1/1 establishes that defects have not been removed and nor the mobile set replaced on contact to OP No.2 on 10.05.2017 and further on 16.05.2017.
6. Contents of job sheet Ex.C-3 dated 15.04.2017 further establishes that mobile was under warranty period when complainant faced problem of non working of calling sensor and of dropping of network. However, contents of Para 2 (i) of complaint are to the effect that OP No.2 claimed as if he had discussed the matter with Head Office and repair of the mobile could not be done at earliest due to non availability of parts. As spare parts requiring replacement were to be provided by manufacturer to the service centre, as and when repair of the mobile to take place within warranty period, and as such fault with OP No.2 cannot be found in not repairing the mobile at earliest. OP No.2 was bound to repair the mobile set free of cost by way of replacing defective parts, but after receipt of those parts from manufacturer and not before that. So fault lays with OP No.1 as manufacturer in not supplying the spare parts requiring replacement at earliest, despite request by OP No.2 to OP No.1. Being so, liability remains of OP No.1 and not of OP No.2 to 4, more so when OP No.2 as service centre tried to render due services, but could not do so due to non receipt of spare parts requiring replacement from the manufacturer. Likewise liability of OP No.3 is not of removing the defects because warranty service was to be provided by manufacturer through its service centre. It is the case of complainant that mobile set in question was received by him on 16.05.2016 at his residence and first defect developed on 02.03.2017 i.e. after lapse of more than 9 months and 10 days. If such defect occurred after lapse of 9 months and 10 days of use of mobile, then this means that mobile set sold by OP No.3 to complainant through intermediary OP No.4 was not having manufacturing defect or any technical defect in the first instance. As warranty of one year provided by manufacturer and as such manufacturer alone is responsible or liable for removing defects or replacing mobile set.
7. Counsel for OP No.4 contends that manufacturing defect is not established. Even if complainant has not produced any material by way of expert report to establish manufacturing defect in the mobile, but he has produced on record job sheets Ex.C-2 and Ex.C-3 for establishing that defects in the mobile set occurred twice within warranty period, but repair of same finally has not been done. Rather as per contents of complaint contained in Para No.2 (i) alongwith supporting affidavit, mobile is beyond repair and as such certainly complainant entitled for replacement of mobile set in question from manufacturer i.e. OP No.1 with mobile of same model or of mobile with equal worth. Complainant, of course will be liable to return back the defective mobile set to OP No.1 or its representative within specified period. As complainant had to suffer due to fault of OP No.1 in not rendering due services of repair in time and as such complainant entitled for compensation for mental agony and harassment and also to litigation expenses from OP No.1.
8. Counsel for OP No.4 takes us through affidavit Ex.OP-4/1 and copy of conditions of use Ex.OP-4/4 for arguing that OP No.4, being neither seller and nor manufacturer cannot be held liable, more so when its role was just of intermediary in providing platform for facilitating sale/purchase of mobile in question from authorised dealer of OP No.1. After going through Clause-3 of Ex.OP-4/4 it is made out that website of OP No.4 is online platform which enables purchase of the product listed on the website at the price indicated therein. In this clause-3 it is further mentioned that Amazon is only a facilitator having no control in any manner on the transaction conducted on website. Further Clause-13 of Ex.OP-4/4 provides that OP No.4 is neither liable nor responsible for any actions/inactions of the sellers or of breach of conditions of warranty by sellers or manufacturers. These clauses 3 and 13 of Ex.OP-4/4 as such exonerates OP No.4 from its liability of refund of price of mobile or replacement thereof, more so when defects in the mobile occurred after its use for more than 9 months and 10 days after purchase. As for the acts of omission of providing services as per warranty clause, OP No.4 as facilitator of sale transaction cannot be held liable like seller of the product and as such submission advanced by counsel for OP No.4 has force that complaint against OP No.4 merits dismissal, more so when copy of press note issued by Ministry of Commerce and Industry placed on record as Ex.OP-4/5 also provides for e-commerce buying and sale of goods. Page 3 of Ex.OP-4/5 provides that in any market place model, any warranty/guarantee of goods and service sold will be responsibility of seller and e-commerce entities providing market place will not directly or indirectly influence the sale price of goods or services. Further as per clause 3 (h) of notification issued by Reserve Bank of India, copy of which is produced as Ex.OP-4/6 any warranty/guarantee of goods and services sold through e-ecommerce entity will be the responsibility of seller. In view of these conditions, certainly OP No.4 cannot be held liable for replacement or refund of price because fault as already pointed out above remained of OP No.1 in not rendering due services through its service centre OP No.2 despite the fact that OP No.2 took up the matter with OP No.1 for supply of parts requiring replacement.
9. As a sequel of above discussion, complaint allowed against OP No.1 only in terms that OP No.1 will replace the mobile hand set in question with same model and if the same model not available, then with model of equal worth within 30 days from the date of receipt of copy of the order. Complainant will be bound to return back the defective mobile hand set to OP No.1 or its representative provided the name of the local representative is disclosed by OP No.1 in writing to the complainant. On knowing about the name of the local representative of OP No.1 with whom defective mobile hand to be deposited, complainant will deposit the same against receipt with that representative of OP No.1 in 10 days of receipt of requisition. Compensation for mental agony and harassment of Rs.5,000/- and litigation expenses of Rs. 5,000/- more allowed in favour of the complainant and against Op No1. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order. However complaint against OP No. 2 to 4 is dismissed. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
10.07.2019
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
