FINAL ORDER / JUDGEMENT

Sri. Apurba Kr. Ghosh.........President.

The Complainants has filed this application under the provisions of Consumer Protection Act  and praying for the following relief/order:

1. Direction against the OPs to pay a sum of Rs. 6999/- to the Complainants as cost of the mobile.
2. Direction against the OPs to pay a sum of Rs. 601/- to the Complainants as interest @ 12 % per annum of Rs. 6999/- with effect from 17.03.2016 to 04.12.2016,
3. Direction against the OPs to pay a sum of Rs90000/- to the Complainants as compensation for mental worries, tension, torture, agony and cost of legal notice.
4. Direction against the OPs to pay pendentelite interest.
5. To discontinue the unfair trade practice or the restrictive trade practice or not to repeat them by the O.P No. 2 to 4.
6. Adequate cost.
7. Any other relief which the Complainants is entitled as per law.

BRIEF FACT OF THE COMPLAINT

1. The Complainants no. 1 is sister of her handicapped brother and OP No. 4 is manufacturer and seller of Coolpad and other mobile phones in India, as disclosed by the OP  no. 3 the OP No. 4 has service centre of its products all over India, OP No. 1 is service center and provider of mobile phones, manufactured and sold by the OP No. 4 , the OP No. 1 is agent of the OPs in Siliguri, OP No. 3 is seller of goods, manufactured by several companies including OP No.4 in India through OP No. 2 on Amazon India Market Place.
2. The Complainants purchased one mobile Coolpad note 3 lite (Black 16 GB) IMEI 911498050630155 and the mobile was in packed condition was delivered to the Complainants at her address by courier against  cash payment of Rs. 6999/- who paid Rs. 7000/- as Rs. 1/ was not available for return with courier boy.
3. That the mobile was purchased for the exclusive use of the handicapped brother of the Complainants No. 1     but while the mobile was in used by the Complainants no. 2 he faced some troubles and problems which was informed to his sister and the Complainants no. 1 and their father about the non functioning of the said mobile which was purchased only for the passing time of his life as well as enjoyments of the Complainants no. 2.
4. The Complainants No. 1 as well as father of the Complainants complained to service center in Siliguri of the said mobile, the service center could not put the mobile in perfect working order and for which the father of the Complainants had to deposit the defective mobile with Op No. 1 Siliguri Service Center, Ganpati Cellulars on 29.06.2016 under jobsheet no. JS16062900447,/ the OP No. 1 service center disclose the nature of the complaint as “dead/ charging problem/ heating problem” and told the Complainants’ father the set is required to be sent to the seller for doing the needful.
5. The expected return date was mentioned in the service jobsheet as 30.06.2016 but the executive of the OP No. 1 verbally told to contact in a week and the father of the Complainants approached the executive of the OP No. 1 in person on 05.07.2016 in Siliguri but the executive informed that the mobile had been sent to the seller for repairing and same had not returned by then. / The executive asked to come after 10 days/ the father of the Complainants visited on 22.07.2016 but again the executive told the repaired mobile had not been by then received from the seller and asked to wait for some time.  
6. The father of the Complainants visited several times to the service in August, September 2016 and lastly on 06.10.2016 but the executive always told that mobile had not been received by Ganpati Cellulars for delivery after duly repaired.
7. That there is gross failure, negligence, deficiency in service, unfair trade practice, breach of trust and cheating on the part of the OPs and due to non supply of that mobile after repairing the same the Complainants had to purchase another mobile for about Rs. 8000/- and being aggrieved for last five months and also feeling inconvenience, problems in enjoyment and contact by the  Complainants no. 2 and also being carrying mental worry, tension, for so many months the Complainants No. 1 sent legal notice to the OPs through his Ld. Advocate  vide notice dated 17.10.2016 to the OP No. 1 to 3 demanding the sum of Rs. 6999/- cost of the mobile as paid by the Complainants plus 12 % per annum interest on the said amount from 17.03.2016 till the matter is resolved plus compensation towards mental worries, torture, harassment as well as fees for legal notice.
8. That the legal notice was booked under registered post with AD on 19.10.2016 which was duly served on the OP No. 1 on 20.10.2016 but in response to that the OP No. 1 make no response, the Op No. 2 on receipt of the notice sent reply vide letter dated 14.11.2016 making all false , baseless and untrue allegation and statements.
9. That OP No. 3 on receipt of legal notice dated 17.10.2016 sent reply vide reply letter dated 25.10.2016 where it admitted that contents of the notice have been duly noted and informed that OP no. 3 is only an intermediary and the warranty on the product  is provided by the manufacturer and it is also not responsible for the service provider by the manufacturer’s service center./ it has been categorically mentioned that it has no capacity to rectify the defects pointed out in the notice or replace the product / it has further been mentioned that a customer’s satisfaction is its priority so it has been forwarding a matter to the manufacturer i.e OP No. 4 requesting them to resolve / settle the matter at the earliest. / No action nor any reply from the end of the manufacturer is received so the manufacturer is made party herein as the complaint of mobile is “dead/ charging problem/ heating problem” as certified by the OP No. 1 service provider in Siliguri where the defective mobile is deposited with OP No/. 1 is lying is not known to the Complainants because it is the OP No. 1 and / or other OPs to highlight on the matter / the OP No. 1 service provider and agent of the OP No. 2 to 4 so the OP no. 1 cannot escape from its liability and responsibility / the OP No 1 has neglected and failed to response to the legal notice.
10. As the Complainants have given the defective mobile to the OP no. 1 so the Complainants are directly concerned with the OP no. 1 and liability as well as responsibility of  the OP No. 2 to 4 are not lessened and OP No. 1 could not take plea that the mobile has not been sold by it but the OP No. 1 is certainly service provider and an agent of OP no. 2 to 4 particularly of Op No. 4 in Siliguri and it has been working on their behalf for the products sold by them.
11. The Complainants have stated that the mobile set deposited by them with OP No. 1 on 29.06.2016 was either un repairable or the same has been lost from the custody of the OPs and there is gross failure, negligence, deficiency in service as well as unfair trade practice on the part of the OPs.
12. That the cause of action for filing the case arose firstly in march 2016, the month of delivery of mobile packet in Siliguri, within the jurisdiction of the Commission which is continuing and cause of action again arose on 29.06.2016 when the Complainants deposited the mobile with the OP No. 1 is Siliguri and the same has not yet been returned by the OP no. 1 to the Complainants and the said cause of action is still continuing.

In order to prove the case the Complainants has filed the following documents

1)Retail/Tax Invoice issued by Cloudtail India Pvt. Ltd. 10.3.16

2) Service Jobsheet dated 20.6.16 of Ganpati Cellulars, Siliguri.

3) Tax Invoice/Memo No.RMS/SLG/A/017 dated 2.8.16 issued by Raj Mobile Stores, Siliguri, for purchase of another Mobile.

4) Legal Notice of Sri P.D. Dalmia dated 17.10.2016.

5) India Post tracking sheet for delivery to Ganpati Cellulars.

6) Cloudtail India Pvt. Ltd. reply of Legal Notice dated 25.10.2016

7) Patin Law offices dated 14.11.2016, reply of legal notice dated 14.11.2016 for and on behalf of Amazon Seller Services Pvt. Ltd.

8) Handicapped Certificate of Complainant No. 2 issued by Child Development Project Officer, Siliguri(U) CDS Project. 

Notice was issued from this Commission for servicing the same upon the Ops. Despite receiving notice, the OP No. 1 and 4 did not turned up before this Commission to contest the case. Accordingly, the case is proceeding ex-parte against the said OP No. 1 and 4.

On receipt of notice OP No. 2 appears before this Commission through Vokalatnama , Filed written version, denied all the material allegation of the Complainants. In the W/V the OP No. 2 has stated that, the OP No. 2 is a well reputed company, they neither sell nor offer to sell any product and merely provides an online market place where independent third party sellers can enlist their products for sell and the sellers themselves are responsible for their respective listings and products on the website, OP No. 2 is neither responsible for the product that are listed on the website by various third party sellers nor does the OP No. 2 intervene or influence any customers in any  manner/ the OP No. 2 is not involved in the sale  transaction between the customer and seller / the conditions relating to the customers use of the website and specially agreed by the customers states that the OP No. 2 is only a facilitator and cannot be a party to or 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/ the copy of the conditions of the use and sale on the website is annexed as Annexure B. The OP No. 2 has denied all the statements made by the Complainants and the OP No. 2 has also stated that, the Complainants are not a consumer under the provision of section 2 (1) (d) of the Consumer Protection Act, 1986. It is also stated by the OP No. 2 that, the Complainants have not purchased any goods from the OP No. 2, nor the Complainants have paid any amount of money to the OP No. 2 but the Complainants purchased good from independent third party seller i.e. OP No. 3 who selling its product on the website operated by OP No. 2 and for which the Complainants does not fall within the definition of consumer. The OP No. 2 has also stated that, the OP No. 2 has merely provided an online market place where independent third party sellers have listed their products for sale and the OP No. 2 is neither a necessary nor a proper party in the complaint and the instant case is liable to be dismissed on account of misjoinder of parties and the deficiency in the present complaint cannot be attributed to the OP No.2 by any means and the averments or allegations  made in the complaint are frivolous, baseless, misconceive and the complaint is liable to be rejected. The OP No. 2 has also stated in the written version that, the grievance of the Complainants are limited to the alleged defects in the product, which is neither manufactured nor sold by the OP No. 2 and the allegation of manufacturing defects in a product can be sustained only against the manufacturer and the OP No. 2 has wrongly been arrayed  as a party to this case without any cause of action. The OP No. 2 further stated, that the seller in the instant case is OP No. 3 and the OP No. 2 is not involved in the contract of sale between the Complainants and the seller. By filing written version the OP No. 2 praying for dismissal of the case.

The OP No. 3 on receipt of the notice, appears before this Commission through Vokalatnama, filed written objection, denied all the allegations of the Complainants. In the Written  objection the OP no. 3 has stated that, the Complainants have implicated him on some false allegation and he is not all connected in this case. He also stated that, suppressing the material facts, the Complainants have filed this case knowing  fully well aware that the Complainants have no cause of action in filing this case. The OP No. 3 denied the statements made in the complaint against him.

Having heard the Ld. Advocates of both the sides, and on perusal of the complaint, documents of the parties, written objections of the Ops the following points are taken to be decided by this Commission.

Points for consideration    

1. Whether the Complainants is a consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the Principal O.Ps. as alleged by the Complainants?
4. Is the Complainants are entitled to get any award and relief as prayed for as per the prayer of their Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

The Complainants were given opportunity to produce its evidence- to prove the case the Complainants have adduced evidence by filing written deposition in the form of an affidavit. In the written deposition the Complainants have corroborated their case. On affidavit the Complainants have stated the date of purchase of the mobile in question, its price, its model and mode of delivery. The Complainants have also stated that when the mobile was not functioning within the warranty period i.e  within 3 months from the date of delivery of the mobile, the father of the Complainants went to the OP No. 1 Service Center for the purpose of repairing of the mobile and the OP No. 1 on 29.06.2016 received the mobile issued one jobsheet and disclosed the nature of complaint as “dead / charging problem/ hitting” and the OP No. 1 told the father of the Complainants that the said requires to be sent to the seller for doing the  needful. The Complainants in support of their complaint filed documents before this Commission regarding the jobsheet. The Complainants have also stated, the said mobile set has not yet returned to the Complainants after repairing the same. The Complainants have further stated that they sent legal notice to the Ops but they took no initiative for repairing the mobile.

The Ops are also given liberty to produce their evidence to falsify the case of the Complainants. The OP No. 3 adduced evidence by filing written deposition. The OP No. 3 has corroborated his written objection.

At the time of argument Ld. Advocate of the Complainants argued that, the Complainants have been able to prove the case against the Ops and the Complainants are entitled to get the relief as prayed for.

Ld. Advocate of the OP No. 2 and 3 during argument submits that the Complainants have failed to prove the case against them and the instant case is liable to be dismissed.

Having heard the Ld. Advocates of both the sides and on perusal of the evidence of the parties and on perusal of the documents, it is admitted by the both parties that, the Complainants purchased one mobile which was delivered to the Complainants vide tax invoice dated 10.03.2016. The Complainants in support of said purchase of mobile filed the tax invoice which was issued by the OP No. 3.

The Complainants have also stated in their evidence that within a short period, the Complainants were facing problem to use the mobile and for which the Complainants took the mobile set before the OP No. 1 service center for repairing the same. But the OP No. 1 told that the set is required to be sent to the seller of that mobile and for which the OP No. 1 kept the mobile with them and issued one jobsheet in favour of the Complainants. From the record it reveals that, the Complainants on several occasions went to the service center (OP No. 1) for getting back their mobile but the OP No. 1 each and every time told the Complainants the mobile set had been sent to the seller for repairing the same but the set had not returned by the seller. The Complainants have also filed the copy of legal notice dated 17.10.2016 wherefrom it is proved that the Complainants through their Ld. Advocate sent notice to the Ops for doing the needful. But despite receiving notice of the Complainants the Ops took no initiative for repairing of the mobile set.

From the record it also reveals that, the Complainants have  been able to prove its case before this Commission to the effect that,  since the date of facing problem of the mobile set they tried their level best to get repairing of the same through the service center (OP no. 1) but all the Ops paid no heed to the Complainants which clearly indicates the deficiency in service on the part of the Ops who deliberately withheld their duties towards the Complainants who purchased mobile set by giving price for the same.

From the record it also reveals that all the Ops are trying to shift their burden on the shoulder of the other but they fails to falsify the case of the Complainants.

Considering the evidence of the Complainants and considering the documents filed on behalf of the Complainants we are of the view, that the Complainants have been able to prove their case against the Ops and the Complainants are entitled to get award. We are also of the view that, all the Ops are jointly and severally liable to pay the awarded amount.

Hence,

                                  ORDERED

 that the instant consumer case being in no. 128/2016 is hereby allowed on contest against the OP No. 2 and 3 and ex-parte against the OP No. 1 and 4 but in part.

All the Ops are directed to pay a sum of Rs. 6,999/- (Six thousand nine hundred ninety nine rupees) only to the Complainants towards the cost of the mobile. The OPs are also directed to pay a sum of Rs. 30,000/- (Thirty thousand) only to the Complainants towards compensation for deficiency in service and for mental worries, tension, agony and cost of legal proceedings. The OPs are also directed to pay interest @ 7% per annum with effect from 17.03.2016 till making payment of the entire amount. The OPs are further directed to pay a sum of Rs. 10,000/- (Ten thousand rupees) only in the Consumer Legal Account of this Commission.

The OPs are directed to pay the awarded amount within 45 days from this day failing which the Complainants will have the liberty to take proper steps against the OPs as per law.

Let a copy of this order be given to the parties free of cost.