Haryana

Panchkula

CC/124/2019

SUNIL UPPAL. - Complainant(s)

Versus

THE CHIEF EXECUTIVE ,M/S AMAZON INDIA . - Opp.Party(s)

ROHIT MOUDGIL

23 Jan 2024

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                               

Consumer Complaint No	:	124 of 2019
Date of Institution		27.02.2019
Date of Decision	:	23.01.2024

 

 

Sunil Uppal aged 61 years resident of House No.674, Sector-6, Panchkula(Haryana).

    ..….Complainant

Versus                                                                  

1.     The Chief Executive, M/s Amazon India, registered office Brigade       Gateway, 8^th Floor, 26/1, Dr. Raj Kumar Road, Malleswaram (W),         Banglore- 560055 (Karnataka)

2.     The Chief Executive, M/s Panasonic Head Office, 12^th Floor,       Ambience Island, N.H.-8, Gurgaon-122002 (Haryana).

3.     M/s Satyam Plaza, Shri Balajit Residency, Bank Street, Pataudi Road, Gurgaon(Haryana)

        2^nd address:- M/s Satnam Plaza, M-42, A, Main Market G.K.Part-1,      New Delhi-110048.

                                                                      ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

                         Dr. Sushma Garg, Member.

                         Dr. Barhm Parkash Yadav, Member. 

 

For the Parties:   Complainant in person.

                         Sh. Atul Goel, Advocate for OP No.1.

                         None for OP No.2

                         None for OP No.3.

                         

                       

ORDER

(Satpal, President)

1.             Briefly stated, the facts, as alleged in the present complaint, are that the complainant placed an order on the website of OP No.1, for the purchase of latest model of 65” LED (Panasonic) and made the payment of Rs.1,11,940/- through credit card of Axis Bank. It is submitted that the ordered LED was supplied by OP No.3 M/s Satyam Plaza Gurgaon on behalf of OP No.1, through retail invoice no.130 dated 31.01.2018 for an amount of Rs.1,08,990/- only  as per Buyers Order  No.404-5340226-3839504 dated 31.01.2018 bearing  description detail/ model No.TH-65EX480DX(Panasonic). It is submitted that the supplied product i.e. LED TV 65” Panasonic developed a snag in the month of October, 2018, just after 9 months of its purchase, as its display had suddenly disappeared. It is averred that a complaint was lodged  promptly by the complainant with OP No.2 on its toll free contact number vide complaint no.311018223318, which was referred to M/s New Tech Electronics, SCO 108/Ground floor, Sector-47-C, Chandigarh. It is stated that a service engineer of M/s New Tech Electronics, Chandigarh, visited the house of the complainant and dismounted the LED from wall mount and opened the LED and opined that the interior covered display panel had become defective. He assured the complainant that the company would replace the same free of cost as the LED was within warranty period. A sum of Rs.1,415/- vide receipt no.NTE/1075 dated 31.10.2018 was charged by him as visiting charges. It is stated that Sh.Shivam Gupta, ASM Customer Care service Panasonic-OP No.2 on 03.11.2018 intimated the complainant through email that the defective  panel was found damaged, which could not be replaced free of cost and thus, the payment of Rs.77,110/- was demanded from the complainant  for exchange of up dated model of LED. The email further intimated that the defective component of the LED was not available with OP No.2 (manufacturer), which shows in ample terms that OP No.3 had supplied an updated LED to the complainant, as it was highly improbable that the spare parts of the product(LED) would have gone out of stock in  a short span of 9 months only and that the prestigious company like Panasonic was unable to replenish  the spare  parts  of its product after sale service. It is averred that an inside concealed part, which was sealed with outer cover and sealed frames, was least likely to get broken/damaged, which had resulted into abrupt stoppage of working of LED within such a short span of nine months only. A legal notice was served upon the OPs on 05.01.2019 with the request to replace the defective part of the LED with new one or return the amount of the LED i.e. Rs.1,11,940/- along with interest but to no avail.  Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.                                                                                                                              

2.             Upon notice, the OP No.1 appeared through counsel and  filed written statement by raising preliminary objections that the complainant has imleaded ‘M/s Amazon India’ as OP No.1 whereas  the entity operating  the URL www.amazon.in is  Amazon Seller Services Private Limited(ASSPL) having its registered  office at Brigade Gateway, 8^th Floor, 26/1, Dr.Rajkumar Road, Malleshwaram(w), Bangalore- 560055. It is stated that the complainant has wrongly impleaded M/s Amazon India i.e. OP No.1 as a party to the complaint; therefore, references to OP No.1 should be construed as references to ASSPL, where independent third party sellers list their products for sale. It is stated that the sellers themselves (and not ASSPL) are responsible for their respective listings and products on the Website. The 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. THE ASSPL is not involved in the sale transaction between the customer and seller. The “Conditions of Use” of the Website (as expressly available on the Website) and specifically agreed by the customer’s 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 stated that the OP no.1 is an intermediary as per the Information Technology Act, 2000(“IT Act”) and complies with all the obligations laid down for intermediaries in the Information Technology(Intermediaries Guidelines) Rules, 2011(“IT Rules”) and thus, is entitled to an exemption from liability for the information/ material hosted on its portal. It is stated that the transaction is akin to the complainant/buyer having made a purchase from an independent third-party seller from a virtual mall/ shopping complex, the seller/Manufacturer having manufactured/sold the merchandise are liable for the respective products to the total exclusion of the mall/shopping complex management. It is further submitted that the mall/shopping complex management are not responsible for the acts/omissions of the independent third-party sellers, who are themselves responsible and liable for their independent acts/omissions. Under the heading of “preliminary objections”, it is stated that the complainant does not fall within the definition of Consumer under the Consumer Protection Act. It is stated that the complainant has not bought any goods from ASSPL nor has the complainant paid any amount/ consideration to ASSPL. The goods have been bought by the complainant from the independent third-party seller, who had sold the products on the website operated by the OP No.1. The OP No.1 had merely provided an online marketplace, where independent third-party sellers have listed their products for sale. The OP No.1 is neither a necessary nor a proper party in the complaint. The OP No.1 is only a facilitator. There is no privity of contract between the OP No.1 with the buyers and accordingly, OP No.1 is not responsible for any non-performance or breach of any contract entered into directly between the complainant and the Seller. It is submitted that the complainant had alleged manufacturing defects in one, 65 inches LED Panasonic TV, which was purchased by the complainant vide order ID 40453402263839504 on the website from Satnam Plaza(Seller). On 30.01.2018, the instant complaint is bad-in-law, which cannot be sustained qua the OP No.1, which is only a facilitator, where buyers and sellers meet independent of any intervention by the OP No.1. Further, the grievances of the complainant are limited to alleged manufacturing defects in the product, which is neither manufactured nor sold by the OP No.1. The relationship between the OP No.1 and the Seller is based on principal to principal basis and thus, no liability can be fastened upon it for any lapses on the part of the seller.

                On merits, it is submitted that on receipt of legal notice dated 05.01.2019 from the complainant, reply was sent on 23.01.2019 duly clarifying its role that only the manufacturer of the product were the proper party to redress his grievances. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint is liable to be dismissed.

                Notice was issued to the OP No.2 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.2; hence, it was deemed to be served and thus, due to non appearance of OP No.2, it was proceeded ex-parte by this Commission vide its order dated 28.05.2019. However, the ex-parte order dated 28.05.2019 was set aside vide order dated 13.12.2019 and written statement as filed by the OP no.2 through its counsel was taken on record, wherein preliminary objections has been raised that no cause of action has accrued in favour of the complainant; there is no privity of the contract between the complainant and the OP No.2. It is submitted that the OP No.2 is manufacturer and once a television is manufactured, the same is sold to the authorized dealer/retailer and thereafter, the dealers/retailers are responsible to sell those television to their customers according to their independent marketing strategies and thus, the OP No.2 has no role to play in the same.  The role of OP comes into the picture only when there is manufacturing defect in the television within warranty period; no cause of action has arisen within the territorial jurisdiction of the Consumer Commission Panchkula. It is submitted that the complainant had purchased the T.V. bearing model no.TH-65EX480DX from OPs No.2 & 3 for amount of Rs.1,11,940/- on 31.01.2018 and the same was installed at the premises of the complainant by the technicians of the OP on 05.02.2018 vide job no.1050218391681. Thereafter, the complainant used the T.V. for more than 200 days without any problem  or complaint and the first call was raised by the complainant on 31.10.2018, which was attended  by the technician of the OPs vide job no.R311018223318 and found  the T.V. to be physically  damaged. It is submitted that physical damage is not covered under the terms of warranty as the same was self inflicted and that liability of the OP No.2, as per the Terms of guarantee is only to replace the damaged part upon payment.

                On merits, it is submitted that the display panel of the T.V. was physically damaged due to internal impact and thus, the contentions of the complainant that the T.V. display had suddenly disappeared after use of 9 months is false and baseless. It is submitted that the OP No.2 as a onetime goodwill gesture and customer satisfaction had offered the 40% discount to the complainant over the shared charges of Rs.79,050/- but the complainant  had not agreed. It is further submitted that the complainant at the time of purchase was well aware about the date of launch of the said model and was aware that the said model was relatively an older model and on the verge of being phased out. However, owing to the present condition, the OP No.2 is ready and willing to replace the T.V. of the complainant with a new T.V. at the cost of the Panel. It is submitted that T.V. of the complainant had got damaged due to his own mishandling and the same could not be attributed to the OP No.2; so there is no deficiency in service on the part of the OP No.1 and prayed for dismissal of the complaint.

                Upon notice, the OP No.3 appeared through authorized representative and filed the written statement by raising the preliminary objections that the present complaint is not maintainable and liable to be dismissed as neither the office of the OP No.1 nor the premises/ factory of OP No.2 are situated with the jurisdiction of this Commission. It is submitted that the OP No.3 have no concern with the complainant directly as the LED was sent by the OP No.1; the complainant has concealed the true and material facts. It is stated that the OP No.3 is an authorized agent to sell the goods on behalf of OP No.2 (manufacturer); the warranty was given by the OP No.3 qua LED, which was sold and supplied by OP No.1 to the complainant.

                On merits, it is denied that the ordered LED was supplied by the OP No.3 M/s Satyam Plaza Gurgaon on behalf of the OP No.1. It is submitted that the LED was sold and supplied by the OP No.1 which was purchased from the OP No.3 by the OP No.1 and that OP N o.3 had issued invoice in the name of the complainant at the instance of OP No.1. It is denied that the OP No.3 supplied an outdated LED to the complainant. It is further denied that the spare parts of the product had gone out of stock in a short span of 9 months only and the prestigious company like Panasonic was unable to replenish the spare parts of their product during after sales services. It is submitted that the warranty was given by the company and there was no warranty regarding the broken parts of the product. It is submitted that the complainant is not a consumer of OP No.3 as the complainant had purchased the product from OP No.1 directly. Therefore, there is no deficiency in service on the part of the OP No.3 and thus, the complaint deserves dismissed qua OP No.3.

3.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents as Annexure C-1 to C-7 and closed the evidence. On the other hand, the learned counsel for the OP No.1 has tendered affidavit as Annexure R-1/A along with documents as Annexure R-1/1 & R-1/2 and closed the evidence. The OPs No.2 & 3 did not submit their evidence in shape of affidavit along with documents etc. despite availing several opportunities; accordingly, their evidence was closed by the Commission on 31.08.2023.

4.We have heard the complainant and the learned counsel for the OP No.1, and gone through the entire record available on file minutely and carefully.

5.During arguments, the complainant reiterating the averments as made in the complaint as also in his affidavit(Annexure C-A), contended that the LED in question as purchased by him had  become defective within a period of 9 months from its purchase i.e. during the warranty period but the OPs had wrongly denied the replacement of the defective parts on erroneous grounds. It is contended that the defective part was covered with outer cover and sealed frames, which was allegedly stated by OP’s engineer to be broken. The complainant contended that the OPs had sold the out dated LED to him and thus, were deficient, while not replacing the defective parts of the LED during the warranty period; so, has prayed for acceptance of the present complaint by granting the relief as claim for in the complaint.

6.The OP No.1 apart from merits, has disputed the maintainability of the complaint on several grounds, which are summarized as under:-

1. That the OP No.1 neither sells nor offers to sell any product and merely provides an online marketplace where independent third party sellers can list their products for sale.
2. That the OP No.1 is neither responsible for the products that are listed on its Website by various third party sellers nor does it intervene or influence the customers in any manner, whatsoever. The sellers themselves are responsible for their respective listings on the Website including all representations and warranties for the products/merchandise sold by them without any liabilities on OP No.1.
3. That the OP No.1 is not involved in the sale transaction between the complainant and OP No.2 and that the contract of sale of product on its website, namely, www.amazon.in is strictly a bipartite. It is submitted that the role of OP No.1 is merely of an facilitator between the consumer and the seller and as such it had acted as an intermediary through it web interface who is exempted from the liability in view of the provisions as contained in Section 79 of Information Technology Act, 2000.
4. That the complainant does not fall under the category of consumer qua OP No.1 and further, there is no privity of contract between the complainant and OP as no consideration amount has been received by OP No.1 from the complainant.
5. That the relationship between the OP No.1 and OP No.2(seller) is on a principal to principal basis  and  thus, OP No.1 is not responsible for any lapse, if any, on the part of the OP No.2 i.e. seller.

 

Reliance has been placed on the following case laws:-

1. Kent RO Systems Ltd & Anr vs. Amit Kotak & Ors., CS (COMM)1655/2016 vide order dated 18.01.2017 (High Court of Delhi).
2. Shreya Singhal Vs. Union of India, AIR 2015 SC 1523(SC).
3. Vinay  Narain Vs. LG Electronics India Pvt. Ltd. & Ors. in case no.270/2010(Delhi State Consumer Dispute Redressal Commission) dated 21.05.2015. 
4.      Flipkart Internet Private Vs. State of Kerala decided on                                07.01.2013(HC of Karnataka)

 

On merits, the learned counsel has argued that the product i.e. 65” LED (Panasonic) as ordered by the complainant was sent to him in response to his order placed on the website. The learned counsel argued that it is not the case of the complainant that a wrong product was sent to him. It was also argued that 65” LED (Panasonic) as sent by the OP No.1 to the complainant was defect free as the same was utilized by the complainant for a period of about 9 months without any issue and thus, no liability can be fastened upon OP No.1 qua any defect arising in the said LED during the warranty period.

 

7.None has appeared on behalf of the OP No.2 during arguments. Sh.Ashusantokh Singh, Advocate had lastly appeared on behalf of the OP No.2 in the present complaint on 09.05.2022 but thereafter, none had appeared. Moreover, no documentary evidence by way of affidavit etc. has been filed on behalf of the OP No.2 despite availing several opportunities and accordingly, the same was closed on 31.08.2023.

8.Sh.Lekhram authorized representative, on behalf of OP No.3 had appeared on 22.07.2019 and filed the written statement, but thereafter, none had appeared. As per written statement, the OP No.3 has taken diametrically opposite pleas in its defence. In para No.2 of the preliminary objections, it has taken the plea that it had sent the LED to OP No.1 whereas in para no.4 of the preliminary objections, it has taken the plea that it had acted as an authorized agent on behalf of the OP No.2 (manufacturer) to sell the LED. As such no force and substance is found in the defence version of OP No.3, who had issued the invoice dated 31.01.2018 (Annexure C-1) qua the sale of LED in question to the complainant. Moreover, no documentary evidence in the shape of affidavit etc. has been placed on record by OP No.3.

9.As per averments, made in the written statement placed on record by OP No.2, the claim of the complainant qua the replacement of the defective part of the LED was declined on the ground that the display panel of the LED was physically damaged due to external impact by mishandling on the part of the complainant. However, no report of its technical person or engineer has been placed on record to substantiate its version that the damage was caused by the complainant or the LED TV was mishandled by the complainant. Moreover, no documentary evidence has been filed on its behalf.

10.The complainant has alleged the deficiency on the part of OPs on the following grounds:-

1. That the Ops have declined to repair the defective part of LED, during the warranty period without any valid reason.
2. That the OPs had sold an out dated model of the LED to him.

11.As discussed above, the OP No.2, who is manufacturer, has placed on record no documentary evidence in support of its contentions that the damage to the LED was caused by the complainant himself. No documentary evidence in the shape of affidavit etc. has been placed on record either by the manufacturer or by the OP No.3(seller).  It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence, do not carry any evidentiary value.

12.As per job-sheet no.R12011964137 dated 06.01.2019 issued by M/s New Tech Electronics, Chandigarh, who was authorized to inspect the LED in question, the broken panel was sent to OP No.2 for replacement, free of cost. Therefore, there was no valid justification on the part of OP No.2(manufacturer) to deny the replacement of the defective part of the LED during the warranty period. Moreover, the complainant, admittedly, was sold an out dated model of the LED. The OP No.2(manufacturer) had failed to supply its spare part of the LED in question as the same had gone out of stock.

13.Resultantly, we conclude that the OPs No.1 to 3 had been deficient, while rendering services to the complainant, for which, they are liable, jointly and severally, to compensate to him.

14.As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 3:-

1. To refund a sum of Rs.1,11,940/- i.e. the purchase price of the LED to the subject to return of the LED in question by the complainant to the OPs.
2. To pay a sum of Rs.5,000/- to the complainant on account of mental agony and harassment suffered by him.
3. To pay an amount of Rs.5,000/- to the complainant on account of litigation charges.

 

15. The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be entitled to the amount of interest @9%(simple interest) per annum on the amount of Rs.1,11,940/- from the date of receipt of copy of this order till its actual realization. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties of the complaint and file be consigned to record room after due compliance.

Announced on: 23.01.2024

 

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

CC.124 of 2019

Present:             Complainant in person.

                        Sh.Atul Goel, Advocate for OP No.1.

                        None for OP No.2

                        None for OP No.3.

                                         

                       Arguments heard. Now, to come upon 23.01.2024 for orders.

Dt.08.01.2024

 

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                       Member                            Member                         President

 

Present:             Complainant in person.

                        Sh. Atul Goel, Advocate for OP No.1.

                        None for OP No.2

                        None for OP No.3.

                                       

                                Vide a separate order of even date, the present complaint is partly allowed against OPs No.1 to 3 with costs.

                         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.23.01.2024

 

 

       Dr.Barhm Parkash Yadav       Dr.Sushma Garg             Satpal

                       Member                            Member                         President