State Consumer Disputes Redressal Commission
Xiaomi Technology India (P) Ltd. vs Rohit Chopra & Others on 21 June, 2023
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.33 of 2022
Date of Institution : 17.01.2022
Date of Reserve : 12.06.2023
Date of Decision : 21.06.2023
Xiaomi Technology India Private Limited, having its office at
Building Orchid, Block-E, Embassy Tech Village, Marathahalli-
Sarjapur, Outer Ring Road, Devarabisanahalli, Bengaluru,
Karnataka-560103
....Appellant/Opposite party No.2
Versus
1. Rohit Chopra S/o Sh.Pawan Chopra, R/o NB 266, Lakshmi
Pura, Jalandhar, Punjab-144001.
.....Respondent/complainant
2. Ebay India Pvt. Ltd., through its Manager/ Representative,
14th Floor, North Block, R-Tech Park, Western Express
Highway, Goregaon (East), Mumbai Maharashtra-400063.
3. M/s Make India Smart Pvt. Ltd., through its Manager/
Representative, Plot No.144, Udyog Kender, Greater Noida,
Ecotech-111, Phase-1, Corporate Office: G 227, Sector-63,
Noida-201301.
.......Respondents/Opposite parties No.1 & 3
First Appeal under Section 41 of the Consumer
Protection Act, 2019 against the order dated
26.11.2021 of the District Consumer Disputes
Redressal Commission, Jalandhar.
Quorum:-
Mr.Harinderpal Singh Mahal, Presiding Judicial Member
Present:-
For the appellant : Sh.Devinder Kumar, Advocate For the respondent : Ex-parte First Appeal No 33 of 2022 2 HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This appeal has been preferred by the appellant/opposite party No.2-M/s Xiaomi Technology India Pvt. Ltd.; against the order dated 26.11.2021 passed by District Consumer Disputes Redressal Commission, Jalandhar (in short, "the District Commission"), whereby the complaint filed by the complainant under the Consumer Protection Act (in short 'the Act') was partly allowed and opposite parties were directed to refund the excess amount of Rs.2,000/- and they were further directed to pay Rs.5,000/- as compensation for causing mental tension and harassment to the complainant and Rs.3,000/- as litigation expenses.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
2. Briefly stated facts of complaint of complainant are that the complainant ordered a mobile phone of Xiaomi Redmi Mobile Note 3(Gold16 GB) 2 GB RAM through online which was delivered by opposite party No.3, vide Invoice No.15 (MIS) amounting to Rs.11,999/- with one year complete warranty. The phone was delivered after one week and while unpacking the box, the complainant shocked to see that the MRP of the phone was Rs.9,999/- but he was charged Rs.11,999/-. It was further averred that the opposite parties played fraud with the complainant by taking more money exceeding to the MRP intentionally. This act First Appeal No 33 of 2022 3 and conduct of the opposite parties compelled the complainant for filing the complaint and seeking the following reliefs:
i) to pay Rs.50,000/- as compensation for harassment and mental agony;
ii) to pay Rs.11,000/- as travel and legal fee of counsel;
iii) to refund Rs.2,000/- i.e. the excess price paid; and
iv) to pay Rs.20,000/- for loss or injury suffered.
3. Upon notice, initially opposite parties No.1 to 3 were proceeded against ex-parte, vide orders dated 18.06.2018 & 08.01.2019. Thereafter, the opposite party No.2 appeared through its counsel and was allowed to join the proceedings, vide order dated 24.07.2018 and the District Commission further directed opposite party No.2 to file the written statement.
4. Opposite party No.2 filed its written statement taking preliminary objections that opposite party No.2 is a company incorporated under the Companies Act, 2013 and is engaged in the marketing, sale and service inter alia of mobile phones in India under the brands Mi and Xiaomi. The Opposite party No.3 is an unauthorized seller of the products marketing, sale and service of mobile phones in India. The complainant purchased a phone sold under the Mi-brand namely the Mi Redmi Note 3 mobile phone for Rs.11,999/-. It is submitted that opposite party No.2 is a third party which was completely unaware of the said act and is not liable for any illegal acts committed by opposite party No.3. The grievance of the complainant is against opposite parties No.1 & 3 and opposite party No.2 is not a proper party. No cause of action First Appeal No 33 of 2022 4 accrued to the complainant to file the complaint against opposite party No.2. On merits, all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint.
5. The parties led their evidences in support of their respective contentions before the District Commission and after hearing the complainant and opposite party No.2, the complaint was partly allowed, vide impugned order dated 26.11.2021.
6. Aggrieved by the said order, this appeal has been filed by the appellant/opposite party No.2 for setting aside the impugned order dated 26.11.2021 and to allow the appeal.
7. Notice of the appeal was issued to the respondents through Registered Post but they did not appear despite service and were proceeded against ex-parte, vide orders dated 02.05.2022 and 05.12.2022.
8. I have heard the contentions of the appellant and have carefully gone through the record as well as written arguments filed by the appellant. I have also given my thoughtful consideration to the same.
9. Learned counsel for the appellant/opposite party No.2 at the very outset vehemently contended that the product was purchased by the respondent No.1/complainant from respondent No.3/opposite party No.3, who was not the authorized dealer of the appellant/opposite party No.2 and the transaction took place between the respondent no.1/complainant and that of respondents No.2 & 3/opposite parties No.1 & 3 and the appellant/opposite First Appeal No 33 of 2022 5 party No.2, who is a manufacturer of the product, in question, was not having any knowledge about the said excess amount charged by respondents No.2 & 3/opposite parties No.1 & 3, so in no way, there is any deficiency in service on behalf of the appellant/ opposite party No.2 and it cannot be held liable jointly and severally for the services, which they never provided. He further contended that as per the provisions 2(11) of Consumer Protection Act, 2019, Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained, however, the appellants have no where participated in doing any wrong to the respondent No.1/complainant, as such, there is no deficiency in service on behalf of the appellant/opposite party No.2.
10. From the grounds of appeal and the contentions raised by the learned counsel for the appellant, it can be construed that the main stress has been laid by the appellant/opposite party No.2 that they are not liable for any deficiency in service for the violations of provisions of any Consumer Protection Act, 2019 because they are only manufacturers and the sellers of the product was not the authorized dealer and in no way they are connected with the same.
11. The complainant ordered a mobile phone of Xiaomi Redmi Mobile Note 3 (Gold 16 GB) 2 GB Ram through an online by using the portal of respondent No.2/opposite party No.1 and also made the online payment from his Bank account. The handset was delivered by respondent No.3/opposite party No.3 at the registered address of respondent No.1/complainant with one year complete First Appeal No 33 of 2022 6 warranty. After receiving the handset, when he unpacked the box, he came to know that the Maximum Retail Price (MRP) of the product was mentioned as Rs.9,999/- and respondent No.1/complainant was charged Rs.11,999/- as per invoice dated 03.07.2016, Ex.C-2, issued by respondent/opposite party No.3, which was exceeding the MRP and the same was charged intentionally and knowingly.
12. Keeping in view of these facts, it is important to have a look into the provisions as envisaged under the Consumer Protection Act, 2019. The relevant Sections of the Act is reproduced as under:
"Deficiency" means as per Section-2 (11) of Consumer Protection Act, 2019, any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes - i)any act of negligence or omission or commission by such person which causes loss or injury to the consumer and ii)deliberate withholding of relevant information by such person to the consumer.
Section-2(17), "Electronic Service Provider" means a person who provides technologies or processes to enable the product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites.
Section-2(34), "Product Liability" means the responsibility of a product manufacturer or product seller of any product or service to compensate for any harm caused to First Appeal No 33 of 2022 7 a consumer by such defective product manufacturer or sold by deficiency in service relating thereto.
Section-2 (22) "Harm": in relation to a product liability includes, i) damage to any property other than the product itself, ii) personal injury - illness or death, iii) mental agony or emotional distress attendant to personal injury or illness or damage to property, or iv)any loss of consortium or services or other loss resulting from harm. Injury means any harm whatever caused to any person in body, mind or property.
Section-2(38) "Product Service Provider" means the person who provides any service in respect of such product.
Section-2(47) "Unfair Trade Practice‟ means a trade practice which for the purpose of promoting the sale, use of supply of any goods or for the provision of any service, adopts unfair method or unfair or deceptive practice namely;
i)making any statement whether orally or in writing or by visible representation including by means of electronic record which - a)falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model etc. The Consumer Protection (E-Commerce) Rules, 2020 provides Under Section-4 (11), no e-commerce entity shall -
a) manipulate the price of goods or services offered on its platform in such a manner as to gain unreasonable profit by imposing on consumers any unjustified price having regard to the prevailing market condition, in the essential nature of the good or service, any extra ordinary circumstances under which the good or service is offered and any other relevant consideration in determining whether the price charged is justified. As per Section-6, i.e. Duties of Sellers on market place - no seller offering goods or services through a market place e-commerce entity shall adopt any unfair trade practice whether in the course of the offer on the e-commerce entity‟s platform or otherwise.First Appeal No 33 of 2022 8
Unfair Contract means a contract between a manufacturer or trader or service provider on one hand and the consumer on the other, having such terms which cause significant change in the rights of such consumer. iv) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage.
13. The careful perusal of these provisions clearly shows that if the manufacturer who is selling his products through online market place of e-commerce or through an agent has to make sure that their agent sell the products at the MRP price and to maintain the quality of the same and under this process in case liability of loss caused to the purchaser, then the selling agents, booking agents, along with manufacturer of the product are liable. The agents and the manufacturers are in the agreement and are service providers through e-commerce entity are bound by the contract between respondents No.2 & 3/opposite parties No.1 & 3 and the opposite parties come under the definition of Consumer Protection Act, 2019 with regard to the deficiency in service and unfair trade practice committed by them and also consequences of the same. Similarly, in the present complaint, the respondents No.2 & 3/ opposite parties No.1 & 3 who received the order through e-commerce has charged the amount over and above the MRP, as such, the manufacturer, service provider and sellers are liable for any defect, deficiency in service and unfair trade practice on the service provided of goods / products sold by them.
First Appeal No 33 of 2022 9
14. Although, the appellant/opposite party No.2 has taken a stand that though they are engaged in marketing of sale and service of mobile phones in India but respondent No.3/opposite party No.3 is the unauthorized seller and third party and they are unaware of the alleged act of respondent No.3/opposite party No.3, so they cannot be held liable for any deficiency in service.
15. Learned counsel for the appellant in support of his contentions has referred the judgment of the Hon'ble Supreme Court reported in AIR 2021 SC 1149 "Tata Motors Ltd. V. Antonio Paulo Vaz.". I am in agreement with the findings of the Hon'ble Supreme Court in the above authority Tata Motors (supra), however, in the present case; it is an admitted fact that Xiaomi Technology India Pvt. Ltd. is engaged in marketing, sale and service of interalia mobile phones in India and in this way, they are responsible for any deficiency in service of such mobile phones in India committed by a third party also and that too has been sold through e-commerce platform and they cannot wriggle out of the fact by saying that charging of the excess price was not in their knowledge. Moreover, there is nothing on the file to show that appellant/ opposite party No.2, who are engaged in marketing, sale and service of mobile phones in India had no knowledge about the person who is selling their products through e-commerce platform. Even, they have failed to produce any sufficient evidence that they have no concern of sale of mobile phones through agent. So, the above said ruling Tata Motors (supra) is not applicable and the plea of the appellant/opposite party No.2 in this appeal as well as before First Appeal No 33 of 2022 10 the District Commission that it was not in their knowledge that respondent No.3 / opposite party No.3 was selling the phones beyond the Maximum Retail Price is not sustainable in the eyes of law and cannot be entertained.
16. I rely upon a judgment of the Hon'ble National Commission, reported in IV (2016) CPJ 246 (NC) titled 'Big Cinemas and another Vs. Manoj Kumar' wherein - purchase of water bottle - there cannot be two MRPs excepting in accordance with law. The products in pre packaged form are covered under the definition of pre packed commodity in Section 2(1) of the Legal Metrology Act, 2009 and the petitioners are required to comply with the provisions of the Act and Rules.
17. In view of the above, I am of the view that no trader/person can charge more than the price mentioned on the product. This act and conduct of the appellant as well as respondents No.2 & 3/opposite parties No.1 & 3 falls within the definition of 'unfair trade practice and deficiency in service' as they sold the product more than the MRP.
18. Sequel to the above discussions, I do not find any merit in the appeal and the same is hereby dismissed and the order of the District Commission is upheld.
19. The appellant/opposite party No.2 had deposited a sum of Rs.10,000/- at the time of filing of the appeal. This sum, along with interest accrued thereon, if any, shall be remitted by the Registry to the District Commission after the expiry of 45 days of the sending of certified copies of the order to them. The concerned party may First Appeal No 33 of 2022 11 approach the District Commission for the release of the above amount to the extent of his/their entitlement and the District Commission may pass the appropriate order in this regard, in accordance with law.
20. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER June 21st ,2023 parmod