BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint no.111/17.
Date of instt.: 27.04.2017.
Date of Decision: 28.09.2017.
Deepak Kumar Bhola, Advocate, aged 63 years, s/o Shri Anguri Lal, r/o Litigant Hall, District Bar Complex, District Courts Kaithal.
……….Complainant.
Versus
- Motorola Excellence Centre, 415/2, Mehrauli, Gurgaon Road, Sector-14, near Maharana Pratap Chowk, Gurgram, Haryana-122001 (Company Head Office address):
- G-6 & 7 Ardhman North Ex Plaza, Plot No.H-4, Netaji Subhash Place, Pitam Pura, New Delhi-110034 (Company North Reason Office).
- SCTO 189-190, Sec-34A, Chandigarh (Company North Reason Office).
- Amazon Wholesale (India) Pvt. Ltd., C/o DHL Supply Chain India Pvt. Ltd., as Cargo, Punit Reach Logistics Pvt. Ltd., Plot 183,184 & 185 Bommasandra Jigani Link Road, Bangalore-562016 (Karnataka) India (Imported and Delivery by Amazon).
- M/s S&R Trading Co., SCF, 1st Floor, Mughal Canal, Karnal (Haryana) (Service Center).
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Shri Sanjeev Garg, Adv. for the complainant.
Ops No.1 and 5 ex parte.
Ops No.2 and 3 given up.
Shri Munish Sikri, Advocate for Op. No.4.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased a mobile handset make Moto G Plus, 4th Gen (Black, 32 GB) BDDP7GZK, Serial No.354115075703114 for a sum of Rs.14,999/- vide Invoice No.D0bxX7CXN dated 24.06.2016, but wrongly mentioned in complaint as 05.10.2016 through Ops No.1 to 3 and delivered by Op No.4 at Kaithal. It is further alleged that the said mobile set started creating problems from the date of its purchase regarding Switch Off automatically, some time Display blank, Software problem, heat up, hanging problem and during the conversation, battery charging, speaker and earphone of the said phone were not functioning. It is further alleged that on 18.04.2017, the complainant visited Op No.5 and addressed these problems vide job-sheet dated 18.04.2017, but Op No.5 failed to solve them. It is further alleged that the complainant visited to Op No.5 several times to solve the problems of mobile set, but he did not take any action and failed to handover the mobile set or to pay the cost of the mobile set. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, Ops No.1 & 5 did not appear and opted to proceed against ex parte vide orders dt. 12.06.2017 and 25.07.2017 respectively. Ld. counsel for complainant has given up Ops No.2 and 3. The opposite party No.4 appeared before this forum and filed his reply raising preliminary objections with regard to jurisdiction and cause of action. On merit, it is submitted that present complaint has been wrongly filed by complainant against “Amazon Wholesale (I) Pvt. Ltd.” as there is no such entity concerned with the website www.amazon.in. In fact, M/s Amazon Seller Services Pvt. Ltd (hereinafter mentioned as “ASSPL”) is the owner of above said Website and same may be corrected and incorporated in the memo of parties of the present complaint. It is further submitted that ASSPL neither sells nor offers to sell any products and merely provides an Online marketplace, where independent third party sellers can list their products for sale. It is further submitted that the sellers themselves (and not ASSPL) are responsible for their respective listings and products on the Website. It is further submitted that ASSPL is not directly involved in the sale transaction between the customer and seller. It is further submitted that 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. It is further submitted that the complainant does not fall within the definition of “consumer” under Section 2(1) (d) of the Consumer Protection Act, 1986. It is further submitted that the complainant has not bought any goods from ASSPL nor has the complainant paid any amount/consideration directly to ASSPL against any such goods or services, rather the goods have been bought by the complainant from an independent third party seller selling its products on the Website operated by Op No.4. The rest of contents of complaint are denied and prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A; documents Ex.C-1, Mark C-1 and closed evidence on 04.09.2017. On the other hand, Op. No.4 tendered in evidence affidavit Ex.RW4/A; documents Ex.R-1 and closed evidence on 26.09.2017.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. Ld. counsel for the complainant reiterated all the points mentioned in the complaint. He argued that the complainant purchased a mobile handset through Ops No.1 to 3 and delivered by Op No.4 at Kaithal. He further argued that the said mobile set started creating problems from the date of its purchase regarding Switch Off automatically, some time Display blank, Software problem, heat up, hanging problem and during the conversation, battery charging & the speaker, earphone of the said phone were not functioning. It is further argued that on 18.04.2017, the complainant visited Op No.5 and addressed these problems vide job-sheet dated 18.04.2017, but Op No.5 failed to solve them. It is further argued that the complainant visited to Op No.5 several times to solve the problems of mobile set, but he did not take any action.
6. On the other hand, ld. counsel for Op No.4 argued that ASSPL neither sells nor offers to sell any products and merely provides an Online marketplace, where independent third party sellers can list their products for sale. It is further argued that the sellers themselves are responsible for their respective listings and products on the Website and not ASSPL. It is further argued that ASSPL is only a facilitator and cannot be a party to control in any manner any sale transaction on the Website and prayed for dismissal of complaint.
7. From the pleadings and evidence of the case, it is clear that the complainant purchased a mobile handset for an amount of Rs.14,999/- vide bill Ex.C1 dated 24.06.2016. The said mobile set was delivered by Op No.4 at Kaithal. The said mobile set started creating problems regarding Switch Off, some time Display blank show and heat up, as it clear from job sheet dated 18.04.2017 Mark C-1. On the job sheet Mark C-1, the Ops have mentioned the mobile band. As there was band in the mobile set, this may be the reason that the Ops did not repair the mobile set in question, but this reason cannot be taken as positive, because the Ops have not appeared to explain the reason for not repairing or replacing the mobile set. The band in the mobile set might have been occurred due to heating problem and it is not possible that the mobile set was band due to any physical handling. The Op No.4 has not stated anything in his reply about the defects in the mobile set in question. To prove its version, the complainant has proved on the file his affidavit Ex.CW1/A, bill Ex.C1 and photocopy of job sheet Mark C-1. The Op No.4 has placed on the file his affidavit Ex.RW4/A and documents Ex.R-1. The Op No.4 has mainly stressed on the contention that complainant is not his consumer, but this contention of Op No.4 has no force, because the set was sold Online through Op No.4. As already stated above, the OP No.4 has not stated anything regarding the defect in the mobile set, therefore, the evidence of complainant that there was defects in the mobile set goes unrebutted against the Ops, because the Ops No.1 and 5 did not appear and proceeded against ex parte and Op No.2 and 3 were given up by the complainant. In these circumstances of the case, we are of the considered view that the mobile set in question of the complainant became defective within the warranty period and the Ops failed to resolve the said defects. Hence the Ops are deficient in providing services to the complainant.
8. Thus, in view of above discussion, we allow the complaint and direct the Ops to replace the defective mobile set of the complainant with new one of the same model, as purchased by the complainant vide Invoice No.D0bxX7CXN dated 24.06.2016. However, it is made clear that if the said mobile as purchased by the complainant, is not available with the Ops, then the Ops shall refund Rs.14,999/- as the cost of mobile set to the complainant. The Ops are also burdened with costs of Rs.1100/- as compensation for harassment, mental agony and costs of litigation charges to the complainant. Both the Ops are jointly and severally liable. Let the order be complied with within 30 days from the date of communication of order. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.28.09.2017.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
Present : Shri Sanjeev Garg, Adv. for the complainant.
Ops No.1 and 5 ex parte.
Ops No.2 and 3 given up.
Shri Munish Sikri, Advocate for Op. No.4.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is allowed. File be consigned to record-room after due compliance.
Dated: 28.09.2017. Member Member President.
