Punjab

Rupnagar

CC/15/53

Rajinder Chauhan - Complainant(s)

Versus

Amazon, Brigade Gateway, - Opp.Party(s)

Sh.Manpreet Singh , Adv.

08 Sep 2015

ORDER

ORDER

                             MRS. NEENA SANDHU, PRESIDENT

                   Sh. Rajinder Chauhan has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the following directions to them:-

i)       To replace the mobile set in question with a new one or to refund the amount of Rs.13,499/- along with interest @ 12% P.A. from the date of its purchase till realization, 

 

ii)      To pay Rs.50,000/- as damages on account of mental pain & agony, monetary loss & physical harassment suffered by him,

 

iii)     To pay Rs.10,000/- as litigation cost,

 

iv)     To grant any other relief, which this Forum may deem fit, in the interest of justice. 

 

 

2.                In brief, the case of the complainant is that he had placed an order, online, with Amazon i.e. O.P. No.1 for purchasing a mobile set, model, Micromax Canvas Knight A350 (Black gold) and the same was sold by the O.P. No.2 vide order ID: 171-8079822-6014744 and invoice No.KA-BLR6-144105041-200000 dated 21.10.2014, and the said mobile set was delivered to him, through courier, at Rupnagar, for which he had payment of Rs.13,499/-. At the time of placing the order, the O.Ps. No.1 & 2 had assured him that the mobile set would be sent as per the order and the same would be a original set, having guarantee of one year and in case, any defect occurs in it, the same would be replaced free of cost. After some time of its purchase, defect regarding display contrast arose in the said set, as such, he complained about the same to the O.P. No.1 at its Customer Care number and the executive of the said O.P. told him to deposit the mobile set with the O.P. No.4 and assured him that the mobile set would be replaced with a new one. On the said assurance of the O.P. No.1, he visited the O.P. No.4, who after checking the said mobile set, told him that there was manufacturing defect in it and assured that the mobile set would be sent to the O.P. No.3 for its replacement with a new one.  The O.P. No.4 had retained the mobile set with it vide job sheet dated 21.02.2015 and told him that it would be changed within ten days. On 03.04.2015, he visited the office of the O.P. No.4 alongwith his friend, namely, Mohinder Singh, then the O.P. No.4 (appears to have been wrongly written as O.P. No. 1) showed him another set of different colour, which was also not sealed one. The appearance of the said set was not new and the same was looking old one. He told the O.P. No.4 that the said set was not a new one and was also not a sealed condition, then the said O.P. No. 4 refused to replace the set with a new one. The O.P. No.4 told him that it would not replace the set with a new one; rather forced him to take the said old mobile set. He refused to take the said old mobile set. Thereafter, he had sent many emails to the O.Ps on different occasions, but the same were never replied by them. Only the O.P. No. 3 had given reply, but the same was not satisfactory. The O.Ps. have, thus, committed deficiency in service and have adopted unfair trade practice, due to which he has suffered mental agony, physical harassment and monetary loss. Hence, this complaint. 

 

 3.               Inspite of issuance of notice of the complaint, none having appeared on behalf of any of the O.P., they were proceeded against ex-parte vide order dated 02.07.2015.

 

4.                On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant, Ex. C1, affidavit of Sh. Mohinder Singh Ex.C2, photocopies of documents Ex.C3 to Ex.C6 and closed the evidence. 

 

5.                We have heard the learned counsel for the complainant and gone through the record of the file, carefully.

 

 6.               From the invoice dated 21.10.2014 (Ex. C3) it is evident that the complainant had purchased the mobile set in question from the O.P. No.2 online through the O.P. No.1 for a sum of Rs.13,499/-. From the job sheet dated 21.2.2015 (Ex. C6) it is apparent that at the time when he had taken the said mobile set, it was having display contrast problem in it and the set was within warranty at that time. As per version of the complainant, after inspecting the said mobile set, the O.P. No.4 told him that there was manufacturing defect in it, therefore, the same would be sent to the O.P. No. 3 for its replacement and the said O.P. No. 4 had retained the mobile set and assured him that the same would be replaced within 10 days. On 3.4.2015, when he alongwith his friend S. Mohinder Singh, visited the office of the O.P. No.4, instead of giving him a new sealed set, it offered him another set of different colour, which was also not a sealed one and appeared to be an old set, which was not accepted by him. In support of said version, the complainant has also furnished his duly sworn affidavit, Ex. C1. He has also placed on record the copies of certain emails sent by him to the O.P. No.4 i.e. the Service Centre and the replies received by him from it, which have been exhibited as Ex. C4 & C5. From the said emails exchanged between the complainant and the O.P.  No. 4, it is apparent that the complainant had time & again requested for replacement of the defective mobile set in question with a new one of the same description & colour. It may stated here that none of the O.Ps. has preferred to appear and rebut the above said version put forth by the complainant. Thus, we have no option but to accept the version of the complainant. Since it is proved on record that the mobile in question was within warranty period on 21.02.2015, when it was handed over by the complainant to the O.P. No. 4 and since then the same is in the custody of the O.P. No. 4 and the complainant has been deprived of its use, in our considered opinion, it is a fit case, where the cost of the said mobile set be got refunded to the complainant alongwith compensation on account of mental agony & physical harassment suffered by him and also the litigation costs.

                   Now the question that arises for consideration is, as to whether all the O.Ps. are liable to compensate the complainant. It may be stated here that the O.Ps. No. 1 & 2 had simply sold the mobile set in question. Even otherwise no deficiency in service on their part has been alleged in the complaint, nor the same has been proved against them. Therefore, the O.Ps. No. 1 & 2 are not liable to compensate the complainant. In the case—‘Rama Shankar Yadav vs. M/s J.P. Associated Ltd.’ 1(2012) CPJ 110 (N.C.), the Hon’ble National Commission has held that it is settled law that for any manufacturing defect in a product, it is manufacturer and not dealer, who could be held liable. In this view of the matter, the complaint against the O.Ps. No. 1 & 2 is liable to be dismissed. So far as the liability of the O.Ps. No. 3 & 4 is concerned, the O.P. No. 3, being the manufacturer, and the O.P. No. 4, being authorized service centre of the O.P. No. 3, are liable to refund the cost of the mobile set in question and also to pay compensation alongwith litigation expenses to the complainant.

7.                In view of the above discussion, we dismiss the complaint against the O.Ps. No. 1 & 2 and allow the same against the O.Ps. No. 3 & 4, who are directed as under:-

i)       To refund the cost of the mobile set in question i.e. Rs.13,499/-,

ii)      To pay Rs.2000/- as compensation,

iii)     To pay Rs.3000/- as litigation expenses,

 

          The O.Ps. No. 3 & 4 are further directed to comply with the above said directions, jointly & severally, within a period of 30 days from the date of receipt of certified copy of this order.

 

9.                The certified copies of this order be supplied to the parties forthwith, free of cost, as permissible under the rules and the file be indexed & consigned to the Record Room.

 

ANNOUNCED                                          (NEENA SANDHU)

Dated: 08.09.2015                                                PRESIDENT

 

 

                   (AMRINDER SINGH)

                                                                     MEMBER.