Haryana

Kaithal

397/20

Rahul Gautam - Complainant(s)

Versus

M/s Apple India Pvt - Opp.Party(s)

Sh.Ashok Gautam

15 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.397/2020.

                                                     Date of institution: 17.11.2020.

                                                     Date of decision:15.05.2023.

Rahul Gautam Advocate age 22 years, son of Sh. Ashok Gautam Advocate, resident of H.No.1548/4, R.K.Puram Colony, Ambala Road, Kaithal, District Kaithal.

                                                                        …Complainant.

                        Versus

1. M/s. Apple India Pvt. Ltd. through its Managing Director/Manager No.24, 19^th floor, Concorde Tower C, UB City, Vittal Mallya Road, Banglore-560001.
2. M/s. Appario Retail Pvt. Ltd. through its Managing Director/Manager Kh.No.18/21, 19/25, 34/5, 6, 7/1 min, 14/2/2 min, 15/1 min, 27, 35/1, 7, 8, 9/1, 9/2, 10/1, 10/2, 11 min, 12, 13, 14 Village Jamalpur, Gurgaon (Haryana)-122503.
3. M/s. Amazon Seller Services Pvt. Ltd. through its Managing Director/Manager Brigade Gateway, 8^th floor, 26/1, Dr. Raj Kumar Road, Malleshwaram (W), Bangalore-560055.

….Respondents.

        Complaint under Section 35 of the Consumer Protection Act, 2019.

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Som Dutt Sharma, Advocate, for the complainant.   

                Sh. Vikram Tiwari, Advocate for the OP.No.1.

                Sh. Amit Kumar Soni, Adv. for the OP No.2.

                Sh. Ashutosh Sharma, Adv. for the OP No.3.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Rahul Gautam-Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the respondents.

                In nutshell, the facts of present case are that the complainant purchased a iPhone 11 through online from OP No.2 for the sum of Rs.65,500/- vide invoice No.IN-DEL4-1059955 dt. 06.08.2020.  The complainant received the said mobile set in the evening of 08.08.2020 through OP No.3 and he set-up his phone and for the purpose of secrecy, security and privacy, the complainant set-up his face ID for unlocking the phone as-well-as other features like Google Pay, Paytm etc.  On 09.08.2020 at about 9.00 a.m., the complainant was astonished when his younger brother told him that the above mobile and other applications have been unlocked on his face ID.  It is pertinent to mention here that the face ID of younger brother of the complainant was never scanned/saved in the operating system of the mobile.  The complainant also made a video of this process.  The said mobile set is having one more problem of heating within 8 to 10 minutes of working.  The complainant approached the OP No.2 to replace the mobile set or to pay back his amount but the OP No.2 refused to do so.  So, it is a clear cut case of deficiency in service on the part of respondents and prayed for acceptance of complaint.     

2.            Upon notice, the respondents appeared before this Commission and contested the complaint by filing their written version separately.  In the written version, OP No.1 raised the preliminary objections that a perusal of the extract of the warranty explains the manner in which the service under the warranty period can be availed by the customers.  The complainant alleged that his brother can unlock face ID of his iPhone.  When he contacted the Customer Service of the OP1, they helped to reset face ID, however, the complainant alleged that the issue persists.  Customer service of the OP1 advised that it would need videos if issue persists and requested the complainant to send a video where his brother and customer can unlock Face ID.  The complainant till date has not sent the video nor has he submitted his device physically with any AASP with regard to this issue.  The complainant still has the option to visit any AASP of the OP1 to avail the said service, however, his reluctance to avail the same, is not explained by him.  The OP1 has never denied him service, however, it is the complainant’s duty to follow warranty terms and conditions.  It is further stated that the complainant is well aware that any issue has to be certified to be existing after it has been assessed by the AASP or customer service of the OP1.  Till date the complainant is only making allegations, however, there is no document to provide the actual existence of his alleged issue.  There is no deficiency in service on the part of answering OP.  On merits, the contents of complaint are rebutted and so, prayed for dismissal of complaint.

3.             OP No.2 filed the written version raising preliminary objections that the complainant has never approached or contacted the answering OP for any issue in the product.  The complainant admittedly states that the product was having internal issues pertaining to the Face ID and heating issues which is on prima facie is a manufacturing problem and related to OP No.1.  The answering OP being only a reseller of the product has nothing to do with the manufacturing or genuineness of the product as the same is sold by the brand/manufacturer, hence OP cannot be held liable for manufacturing defects of the product.  There is no deficiency in service on the part of answering OP.  On merits, the contents of complaint are rebutted and so, prayed for dismissal of complaint.

4.             In the written version, respondent No.3 stated that Section 84 of the Consumer Protection Act, 2018 categorically casts the liability on the manufacturer of the product and the product service provider with respect to manufacturing defects.  In the present case, the complainant has alleged that the product had a manufacturing defect as the product was not working properly; the answering respondent provides online marketplace platform/technology; that the said ‘Amazon Shopping’ is an electronic platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers.  The independent third party sellers use the Amazon Platform to list, advertise and offer to sell their products to the users/buyer who visit the Amazon Platform.  Once a buyer accepts the offer of sale of the products made by the third party seller on the Amazon Platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Amazon Platform.  The answering respondent does not directly or indirectly sell any products on Amazon platform.  In the instant complaint also, it can be evidenced that the actual seller of the product is a third party seller (who is not impleaded as a party).  There is no deficiency in service on the part of respondent.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

5.             Respondent No.3 filed the written statement on the same line as followed by OP No.2 and so, prayed for dismissal of complaint. 

6.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Anneuxre-C1 to Annexure-C9 and thereafter, closed the evidence.

7.             On the other hand, the OP No.1 tendered into evidence affidavit Ex.RW1/A alongwith document Annexure-R1, OP No.2 tendered into evidence affidavit Ex.RW2/A and OP No.3 tendered into evidence affidavit Ex.RW3/A alongwith documents Annexure-R2 to Annexure-R5 and thereafter, closed the evidence.

8.             We have heard the learned Counsel for both the parties and perused the record carefully.

9.             Ld. counsel for the complainant has argued that the complainant purchased a iPhone 11 through online from OP No.2 for the sum of Rs.65,500/- vide invoice No.IN-DEL4-1059955 dt. 06.08.2020.  It is further argued that the complainant received the said mobile set in the evening of 08.08.2020 through OP No.3 and he set-up his phone and for the purpose of secrecy, security and privacy, the complainant set-up his face ID for unlocking the phone as-well-as other features like Google Pay, Paytm etc.  It is further argued that on 09.08.2020 at about 9.00 a.m., the complainant was astonished when his younger brother told him that the above mobile and other applications have been unlocked on his face ID.  It is pertinent to mention here that the face ID of younger brother of the complainant was never scanned/saved in the operating system of the mobile.  The complainant also made a video of this process.  It is further argued that the said mobile set is having one more problem of heating within 8 to 10 minutes of working.  The complainant approached the OP No.2 to replace the mobile set or to pay back his amount but the OP No.2 refused to do so.  So, it is a clear cut case of deficiency in service on the part of respondents.

10.            On the other hand, ld. counsel for the OP No.1 has argued that a perusal of the extract of the warranty explains the manner in which the service under the warranty period can be availed by the customers.  The complainant alleged that his brother can unlock face ID of his iPhone.  When he contacted the Customer Service of the OP1, they helped to reset Face ID, however, the complainant alleged that the issue persists.  Customer service of the OP1 advised that it would need videos if issue persists and requested the complainant to send a video where his brother and customer can unlock Face ID.  The complainant till date has not sent the video nor has he submitted his device physically with any AASP with regard to this issue.  The complainant still has the option to visit any AASP of the OP1 to avail the said service, however, his reluctance to avail the same, is not explained by him.  The OP1 has never denied him service, however, it is the complainant’s duty to follow warranty terms and conditions.  It is further argued that the complainant is well aware that any issue has to be certified to be existing after it has been assessed by the AASP or customer service of the OP1.  Till date the complainant is only making allegations, however, there is no document to provide the actual existence of his alleged issue.

11.            Ld. counsel for the OP No.2 has argued that the complainant admittedly states that the product was having internal issues pertaining to the Face ID and heating issues which is on prima facie is a manufacturing problem and related to OP No.1.  The OP No.2 being only a reseller of the product has nothing to do with the manufacturing or genuineness of the product as the same is sold by the brand/manufacturer, hence OP cannot be held liable for manufacturing defects of the product.    

12.            Ld. counsel for the Op No.3 has argued that OP No.3 provides online marketplace platform/technology.  It is further argued that the said ‘Amazon Platform’ is an electronic platform which acts as an intermediary to facilitate sale transaction between independent third party sellers and independent end customers.  The independent third party sellers use the Amazon Platform to list, advertise and offer to sell their products to the users/buyer who visit the Amazon Platform.  Once a buyer accepts the offer of sale of the products made by the third party seller on the Amazon Platform, the seller is intimated electronically and is required to ensure that the products are made available and delivered in accordance to the delivery terms as per the terms for sale displayed by seller on the Amazon Platform.  The respondent No.3 does not directly or indirectly sell any products on Amazon platform.  There is no deficiency in service on the part of Op No.3.

13.            At the outset, learned counsel for the OP No.3 has taken plea that OP No.3 falls within the definition of an “intermediary” u/s 21 (1)(w) of the Information Technology Act, 2000 and also protected by the provisions of Section 79 of the Information Technology Act, 2000, as such, OP No.3 is exempted from liability for third party information, data or communication link made available or hosted by it at market place platform of OP No.3, therefore, OP No.3 is not liable for any discrepancy, if any, done by the seller i.e. the third party and display of price and subsequent supply of order is the sole responsibility of seller i.e. OP No.2 in the case in hand and prayed for dismissal the present complaint against it. But this Commission does not found this contention of OP No.3 plausible, in view of case law cited (supra) by learned counsel for the complainant titled Myntra Design Pvt. Ltd. Vs. Monika Thakur, wherein, it is held by the Hon’ble State Commission, U.T., Chandigarh that “The Opposite Party cannot escape from its liability stating that it is not the manufacturer of the product and only provides portal for sale, because the Opposite Party allows the companies to project their products for sale on their portal, so it is their legal obligation to keep a check for the rightful delivery of the products sold through their portal services”.  In the case titled Amazon Seller Services Private Limited Vs. Gopal Krishan, First Appeal No.27 of 2017, it is held that “In the said case, it was observed that it was bounden duty of the facilitator to ensure that goods purchased through any individual are manufactured as per quality standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability. Further, the contention raised that as per terms and conditions of sale, no liability can be fastened upon the appellant (Amazon), was rejected by this Commission by observing as under:-

                “8……An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product. It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016”.

12.            So, in the light of above case law laid down by the Hon’ble State Commission, U.T. Chandigarh in the case referred to above, this Commission has no hitch to say that OP No.3, being an intermediary, is also jointly and severally liable for any wrong done by seller i.e. OPs No.1 in the case in hand as-well-as OP No.2.

14.            We have considered the rival contentions of both the parties.  The grievance of the complainant is that the mobile set in question was defective as the applications download on the said mobile set were going unlocked on other face ID.  During the course of arguments, the complainant and his younger brother have shown the mobile set in question in the court and opened the applications download on the said mobile set from which it is clear that the applications download on the said mobile set were going on unlocked on other face ID.  Ld. counsel for the complainant has drawn our attention towards the terms and conditions of Apple Security Bounty as per Annexure-C2, wherein it is mentioned in the Bounty Categories as under:-

Device attack via                Lock Screen Bypass             Rs.1,00,000/-

Physical access

 

In the present case also, it is clear that the lock screen was by-passed as the applications download in the mobile set were unlocked on the other face ID.  So, we are of the considered view that the Ops have given the defective article to the complainant which amounts to deficiency in service and unfair trade practice on the part of Ops.  Ld. counsel for the complainant has requested that the cost of mobile set in question may be refunded to him instead of replacement of mobile set.  Reliance is placed on the authority given by Hon’ble Supreme Court in the case of Bharathi Knitting Vs. D.H.L. Worldwide 1996(4) SCC 704, in which it has been held that in case of specific term in the contract, the parties will be bound by the terms of the contract.  Support can be taken from the authority laid down by Hon’ble Delhi State Commission in case titled as M/s. Carrier Aircon Ltd. Vs. Smt. Sashi Srivastava, 1(2000) CPJ 162, in which Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi ordered for the refund of the amount in case of failure of ordered to replace.

                Similar support can be taken from another authority laid down by Hon’ble Rajasthan State Commission in case titled as Liberty Associates Pvt. Ltd. and another Vs. Deeplal Fatehlal, 2005(2) CPJ 343 in which similar law laid down by Hon’ble Rajasthan State Commission.   

14.            Thus, as a sequel of aforesaid discussion, we direct the OPs jointly and severally to refund the amount of Rs.65,500/- to the complainant within 45 days from today and further to pay Rs.1,00,000/- as compensation on account of physical harassment and mental agony as per terms and conditions of Apple Security Bounty, Annexure-C2 mentioned above as-well-as Rs.5,000/- as litigation charges.  However, the complainant is also directed to submit the old mobile set with the OPs within 30 days.  It is also made clear that if the OPs are failed to pay the awarded amount of Rs.65,500/- to the complainant within stipulated period, then they shall also be liable to pay interest @ 7% p.a. from the date of this order till its realization.  Hence, the present complaint is accepted accordingly. 

15.            In default of compliance of this order, proceedings against respondents-OPs shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:15.05.2023.  

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.