State Consumer Disputes Redressal Commission
Amazon Seller Services Pvt. Ltd. vs Love Kumar Sahu & Anr. on 23 May, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/05
Instituted on : 07.02.2018
Amazon Seller Services Private Limited,
Registered Office at Brigade Gateway, 8th Floor,
26/1, Dr. Rajkumar Road, Malleshwaram (W),
Bangalore - 560055, India,
Through Its authorized Signatory -
Shri Rahul Sundaram ... Appellant (O.P. No.1)
Vs.
1. Love Kumar Sahoo, S/o Shri Santuram Sahoo
R/o : Changorabhata,
Raipur (C.G.) ... Respondent No.1 (Complainant)
2. Micromax Informatics Ltd.
21/14A, Phase - 2, Naraina Industrial Area,
Delhi - 110028 ... Respondent No.2 (O.P. No.2).
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri S. Mandal, , Advocate for the appellant (O.P.No.1).
Shri Yogendra Singh Rajput, Advocate for the respondent No.1 (complainant).
None for the respondent No.2 (O.P. No.2).
ORDER
DATED : 23 /MAY/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 06th November, 2017, passed by District Consumer Disputes Redressal Forum, Raipur C.G.) (henceforth called "District Forum") in Complaint Case No.226/2015. By the impugned order, the District Forum, has partly allowed the complaint of the complainant and directed that :-
(a) The OPs will jointly or severally pay, within a period of one month from the date of the order, a sum of Rs.9,000/- the cost of the // 2 // mobile in question , along with simple interest @ 9% p.a. from the date of filing of the complaint i.e. 07.05.2015 till realization.
(b) The OPs will jointly or severally pay a sum of Rs.3,000/- (Rupees Three Thousand) towards compensation for mental agony to the complainant.
(c) The OPs will jointly or severally pay a sum of Rs.2,000/- towards Advocate Fees and cost of litigation, to the complainant.
2. Briefly stated, the facts of the complaint of the complainant are that the O.P. No.1 is a company, who is selling the various products through internet and the O.P. No.2 is manufacturer company of the mobile in question. On 22.01.2015, the complainant had purchased one mobile handset of Micromax Company from the O.P. No.1, through internet. The Order No. was I.D.404/5197759-1692338 and Model No. was YUREKA - A05510. The cost of the above mobile handset was Rs.9,000/-. The complainant chose option for payment in respect of the mobile handset and requested to send the same to residence of his friend Manoj Kumar Yede, situated at Changorabhata, Raipur (C.G.). Within 5 to 6 days of the date of order, the O.P. No.1 sent the mobile handset in the address of Manoj Kumar Yede and the complainant paid a sum of Rs.9,000/- in cash to the person, who gave delivery. After receiving the mobile handset, when the complainant operated the mobile handset then he came to know that the sensor was not working and the battery was becoming discharged. In this regard, on next day, the complainant informed to the Customer Care of the O.P. No.1 through telephone regarding the above problems, then Customer Care Executive told // 3 // the complainant that the above problem is occurring because mobile software is not updated and after some time the new update of the above mobile handset will come and after updating the mobile handset, the above problem will be solved automatically. Accordingly, as per the assurance given by the Customer Care Executive, the complainant waited for software update of the mobile handset and when after some days, new software update came, then the software of the mobile handset of the complainant was updated, but inspite of updating of the software of the mobile handset of the complainant, the problem in the mobile handset is not cured. The Customer Care Executive told the complainant that he will replace the battery and on 02.02.2015, a new battery was provided to the complainant for mobile handset. After providing a new battery, problem in the battery came to end but in the mobile handset still there is problem in sensor, in respect of which the complainant again informed the Customer Care Executive, then he told the complainant that he will replace the mobile handset and will provide another mobile handset to the complainant and on 09.02.2015, another mobile handset was provided to the complainant. After receiving another mobile handset, when the complainant operated the same then he was surprised because in the second mobile also problems, which were existed in the first mobile, were also found in the new mobile handset. The complainant informed the Customer Care Executive regarding the same then he told that he will provide another mobile handset and on 02.03.2015, another mobile handset was given to the complainant. When the complainant operated the new mobile handset which was sent by the O.P. No.1, it came to know that the // 4 // above mobile handset was of dual sim, but only one sim was functioning and in the second sim, network was not functioning. The complainant informed regarding the above problem to the Customer Care Executive then he told that he will replace the mobile handset for third time and will give another mobile handset. On 04.04.2015, another mobile handset was provided to the complainant. When the complainant operated the above mobile handset, then he came to know that in the new mobile also some problems are existed like mobile-handset is again and again hanging and at the time of talking, the switch become off. The complainant talked with the Customer Care Executive and requested to take back the above mobile and to refund the cost of the mobile hand set, then the Customer Care Executive told the complainant that as per terms and condition of O.P. No.1, within 15 days of delivery of the goods, refund facility is given and amount will not be refunded to the complainant. For solution of the problem in mobile handset, the complainant came to authorized service centre of the O.P. No.2, which is situated at Chhottapara, Raipur where he came to know that the above mobile handset was sold by the O.P. No.1 under special offer and the Service Centre cannot provide any help regarding the repairing of the mobile hand set. The OPs have committed deficiency in service and unfair trade practice. Hence the instant complaint.
3. The O.P. No.1 filed its written statement and averred that the present complaint is false, frivolous, vexatious and abuse of the process of the District Forum, therefore, the same is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986. The complainant does not fall within the // 5 // definition of "consumer" under the Consumer Protection Act, 1986. Admittedly the complainant has not bought any goods from the O.P. No.1 nor has the complainant paid any amount / consideration to O.P. No.1. The goods have been bought by the complainant from the independent third party seller, selling its products on the Website operated by the O.P. No.1. Accordingly, the complainant does not fall within the definition of "consumer" vis - a - vis the O.P. No.1. The O.P. No.1 has merely provided a technology platform (an online marketplace) where independent third party sellers have listed their products for sale. The O.P. No.1 is neither a necessary nor a proper party in the complaint. The complaint is liable to be dismissed due to misjoinder of parties. The deficiencies / defects alleged in the present complaint cannot be attributed to O.P. No.1 by any means whatsoever. Hence the averments and / or allegations made in the complaint are frivolous, baseless, misconceived and the complaint is liable to be rejected. There is no occasion for the complainant to approach the District Forum seeking redressal of his/her grievances against the O.P. No.1. The O.P. No.1 is not involved in the transaction between the complainant and the seller. The complainant has explicitly, by virtue of his / her use of Website, has agreed to be bound by the terms contained in the "Conditions of Use". The seller, in the present case has not been impleaded as a party and the O.P. No.1 is not involved in the contract of sale between the complainant and the seller. The present complaint does not raise any "Consumer Dispute" as defined under the Act, and therefore, the same is liable to be dismissed. The complainant is not a consumer of the O.P. No.1 under the said provisions of // 6 // the Act. The complainant has purchased the "Yu Yureka" from a third party seller, and the complainant has not impleaded the seller as a necessary party to the present dispute. Though the website is managed and operated by the O.P. No.1, but the transaction is between the seller and buyer which is governed by "Conditions of Use" enumerated on the Website of the O.P. No.1. The District Forum has no jurisdiction to entertain the present complaint. The complainant has not approached the District Forum with clean hands and has suppressed the material fact, just to misguide the District Forum. It is a settled legal preposition that "one who seeks justice must come to the Court with his clean hands. The complainant contacted the Service Centre of O.P. No.2 with the defect in the product and the same was replaced by them. Thereafter the complainant contacted the O.P. No.1 for the first time and only once on 20.02.2015 and stated that there was issue with the product replaced which he got from the O.P. No.2 and that the manufacturer had informed the complainant that they would need some time to send another replacement. However, the complainant did not want to wait as this was the only phone he had. More so, the complainant never wrote back to O.P. No.1 with regard to his grievances after February, 20, 2015. The present complaint is a gross abuse of the process of law and has been filed with ulterior motives and malafide intentions and hence needs to be dismissed. The present complaint is liable to be dismissed on the ground of misjoinder of parties, as O.P. No.1 has nothing to do with the complaint but yet it was made a party to the complaint. There is no privity of contract between the O.P. No.1 and the complainant. More so, the complainant has not impleaded the seller a necessary party in the // 7 // instant case. The complainant placed order for "YU Yureka (Mondust Grey) - By Registration Only" vide order No.#404-5197759-1692338 on 22nd January, 2015 on the Website of the O.P. No.1, after duly agreeing to Conditions of Use as prescribed on the Website. As per the return policy of the O.P. No.1, the mobile phone, whose delivery is fulfilled by the O.P. No.1 is not eligible for any refund. However, in case of receipt of a defective or a damaged mobile phone that is fulfilled by the O.P. No.1, the customer is eligible for a free replacement within 10 days from delivery date. No complaint, whatsoever, was received from the complainant within the return window period of 10 days, thereby signifying that the product was in order and the complainant had no grievance, whatsoever with the same. The product started malfunctioning and the complainant took it to the Service Centre of O.P. No.2 and got a replacement. Thereafter complainant contact the O.P. No.1 only once on 20th February, 2015 stating that issue still persisted with the replaced product and that the manufacturer i.e. O.P. No.2 had informed the complainant that they would need some more time to send another replacement. However, the complainant expressed his unwillingness and did not wanted to wait as this was the only phone he had. The O.P. No.1 being a consumer centric company asked the complainant to contact the manufacturer O.P. No.2 and get an email confirmation from them stating that they need time to send in another replacement so that O.P. No.1 could escalate it to concern teams for further assistance. However, the complainant never wrote back with the details and never approached the O.P. No.1 with any complaint in relation to the Product in question after 20th February, 2015 and directly // 8 // approached the District Forum with the instant complaint. The role of the O.P. No.1 is limited to that of a facilitator, and the products available on the Website of the O.P. No.1 are sold by third party sellers. Hence the O.P. No.1 is not liable, and the complaint may be dismissed against the O.P. No.1. The complainant placed an order for the Product, manufactured by the O.P. No.2, from the website of the O.P. No.1 on 22 nd January, 2015 from Manoj Yede's account and the said product was delivered to the complainant. The product in question was delivered to the complainant in a sealed box as it was received from the manufacturer and/or the settler. The complainant was eligible for a free replacement within 10 days from the date of delivery. No legal notice was received by the O.P. No.1. The District Forum has no jurisdiction to entertain the present complaint as neither the O.P. No.1 resides within the jurisdiction of the District Forum nor do they have any branch office for doing business. The complainant is not entitled to any relief, whatsoever and is not entitled to claim and recover anything from the O.P. No.1. The complaint is liable to be dismissed against the O.P. No.1.
4. Before the District Forum, none appeared on behalf of the O.P. No.2 inspite of service of notice, therefore, the O.P. No.2 was proceeded ex-parte.
5. The complainant has filed documents. Annexure A-1 is bill f mobile handset, Annexure A-2 is Declaration Letter cum Delivery Challan dated 06.02.2015., Annexure A-3 are pick up receipts, Annexure A-4 is declaration letter cum delivery challan dated 06.02.2015,, Annexure A-5 is copy of legal notice sent by the complainant to the OPs, Annexure A-6 is postal receipt.
// 9 //
6. The O.P. No.1 has filed documents. Annexure A is authority letter, Annexure B is copy of Board Resolution, Annexure C is copy of condition of use, Annexure D is copy of return policy.
7. The O.P. No.2 has not filed any documents.
8. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the OPs to jointly and severally pay the amounts to the complainant, as mentioned in para 1 of this order.
9. Shri S. Mandal, learned counsel appearing for the appellant (O.P. No.1) has argued that the respondent No.1 (complainant) is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986, therefore, the complaint is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986. The goods have been bought by the complainant from the independent third party seller. The O.P. No.1 has merely provided a technology platform (an online market place) where independent third party sellers have listed their products for sale. The O.P. No.1 is neither a necessary nor a proper party in the complaint. The complaint is liable to be dismissed on the ground also. The allegation made by the complainant is baseless and frivolous. The seller of the mobile was not made party in the instant case. The O.P. No.1 is not involved in the contract of sale between the complainant and seller. The District Forum has no jurisdiction to entertain the complaint. It is a settled legal preposition that one who seeks justice must come to the Court with his clean hands, but the complainant did not come with clean // 10 // hands before the District Forum. If any manufacturing defect is existed in the mobile in question, then the manufacturing company, is liable for the same. The complainant never approached to the O.P. No.1 with any complaint in mobile in question after 20.02.2015. The O.P. No.1 did not commit any deficiency in service. Therefore, the appeal of the appellant (O.P. No.1) may be allowed and order of the District Forum, be set aside.
10. Shri Yogendra Singh Rajput, learned counsel appearing for the respondent No.1 (complainant) has argued that the O.P. No.1 is a company, who is selling various products through internet. The O.P. No.2 is manufacturing company of the mobile in question. On 22.01.2015, the complainant had purchased one mobile hand set from the O.P. No.1 through internet. The cost of the above mobile was Rs.9,000/-. The complainant chose option for payment in respect of the mobile handset and requested to send the same to the residential address of his friend Manoj Kumar Yede. The complainant paid a sum of Rs.9,000/- in cash. After receiving the mobile handset when the complainant operated the mobile handset, then he came to know that the sensor was not working and the battery was becoming discharged. The complainant informed regarding the above problem to the O.P. No.1 and contacted Customer Care Executive, who told the complainant that the above problem is occurring because mobile software is not updated and after some time the new update of the above mobile handset will come and after updating the mobile handset, the above problem will be solved automatically. The complainant waited for software update of the mobile handset and when after some days, new software update came, then the // 11 // software of the mobile handset of the complainant was updated, but inspite of updating software of the mobile handset of the complainant, problem in the mobile handset was existed. The Customer Care Executive told the complainant that he will replace the battery of the mobile and on 02.02.2015, a new battery was provided, but problem in sensor was still in existence. The complainant again informed the Customer Care Executive, who told the complainant that he will replace the mobile handset and will provide another mobile handset to the complainant. On 09.02.2015, another mobile handset was provided to the complainant. After receiving another mobile handset, when the complainant operated the same, then he was surprised because in the second mobile also problems which were existed in the first mobile, were also found in new mobile. The complainant informed regarding the problems in the mobile handset to the Customer Care Executive, then he told that he will provide another mobile handset to the complainant. On 02.03.2015, another mobile handset was given to the complainant. When the complainant operated the new mobile handset which was sent by the O.P. No.1, it came to know that the above mobile handset was of dual sim, but only one sim was functioning and second sim was not functioning. The same was informed by complainant to the Customer Care Executive, who told that he will replace the mobile handset for third time and will give another mobile handset. On 04.04.2015, another mobile handset was provided by the O.P. No.1 and when the complainant operated the above mobile handset, he came to know that in the new mobile also some problems are existed like mobile hand set is again and again hanging and at time of talking, the switch become // 12 // off. The complainant requested the Customer Care Executive to take back the mobile and to refund the cost of the mobile, but the cost of the mobile hand set was not refunded by the OPs. The OPs committed deficiency in service. The impugned order passed by the District Forum is just and proper and does not call for any interference by this Commission.
11. None appeared for the respondent No.2 (O.P. No.2) on 18.05.2018, when the case is fixed for final arguments.
12. We have heard learned counsels appearing for the parties and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
13. Firstly we shall examine whether the respondent No.1 (complainant) is consumer and the District Forum, Raipur has jurisdiction to take cognizance in the matter ?
14. The complainant pleaded that the O.P. No.1 is selling various products through internet. On 22.01.2015, the complainant had purchased one mobile handset of Micromax Company from the O.P. No.1 through internet. The above mobile was sent by the O.P. No.1 in the address given by the complainant and payment was made by the complainant, in cash. The mobile handset was delivered at Changorabhata, Raipur and order was also placed from Changorabhata, Raipur. The Payment was made by the complainant in cash at Raipur. The above pleading has not been denied by the O.P. No.1. Mobile handset was received by the complainant at Raipur.
// 13 // From bare perusal of complaint and written statement filed by the O.P. No.1, it appears that the order for purchasing the mobile was given by the complainant to the O.P. No.1 at Raipur, payment was also made at Raipur and the mobile handset was received by the complainant at Raipur. A new mobile handset was provided by the O.P. No.1 to the complainant at Raipur itself, therefore, the complainant is consumer of the OPs and OPs are service provider and dispute falls within consumer Dispute. Therefore, the District Forum, Raipur has jurisdiction to take cognizance in the matter.
15. The complainant has specifically pleaded that the first mobile handset was giving problem and its sensor was not working properly and battery was becoming discharged. The above mobile was replaced and another mobile hand set was provided by the O.P. No.1 to the complainant. The same problems were also existed in the second mobile hand set. According to the complainant the mobile hand set were changed thrice, but problems were not cured and the last mobile provided by the O.P. No.1 to the complainant, was of dual sim but only one sim was functioning and second sim was not functioning. The O.P. No.2 did not appear before the District Forum and even before this Commission, therefore, allegations made by the complainant regarding selling defective mobile hand set is reliable. The complainant was provided defective mobile hand set by the manufacturing company. The O.P. No.1 sold the mobile hand set to the complainant and the complainant received mobile handset from the O.P. No.1. Continuously defective mobile handset were provided by the O.P. No.1 to the complainant, therefore, the complainant is entitled to get the amount which was paid by him to the O.P. // 14 // No.1 along with interest. Both the OPs are jointly or severally liable to refund the above amount, to the complainant.
16. Therefore, the impugned order dated 06.11.2017, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
17. Hence, the appeal filed by the appellant (O.P. No.1) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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