PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

CONSUMER COMPLAINT NO.- 10/2022

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member

Dibyaraj Pradhan,

S/o- Gourahari Pradhan,

At/Po-Padiabahal, Ps-Sadar

Tahasil-Jujomura

Dist-Sambalpur-768112.                                                                                               ...………..Complainant

Versus

1. Box N Sights,

A 404 Rose Valey Pimple Soudagar Pune,

Maharashtra-411021.

2. Amazon.

In An Online Shopping portal having its Registered office

In India is at Brigada Gateway, 8^th Floor, 26/1, Dr. Rajkumar Road,

Mallehwaram(W) Bangalore-560055

Karnatak, India.…………...Opp.Parties

Counsels:-

1. For the Complainant         :-       Sri. R.Kumar, Adv. & Associates
2. For the O.P. No.1                           :-       Exparte
3. For the O.P. No.2                           ;-       Sri. A.K. Sahoo, Adv. & Associates

Date of Filing:10.03.2023,  Date of Hearing :03.07.2023  Date of Judgement : 25.07.2023

Presented by Sri Sadananda Tripathy, Member.

1. The Brief fact of the Complaint is that the Complainant is a Tax Advocate by profession and doing most of his work on-line in his own laptop. Due to his professional work he used to visit various sites as well as to download various programmers/information’s as required and for which he requires a good anti-virus software to protect his P.C from getting damage. As such the Complainant has purchased an Anti-virus from the OP No. 1 through the OP No. 2 and made the payment through Net Banking amounting to Rs. 749.00, dt. 18.01.2022. As the Antivirus is a software programme, the OPs need not send the product in physical form rather they mail it in the mailing ID of the Complainant so as to install the same in his P.C. After getting the same, the ordeal started as the Complainant has to run from post to pillor to get the installation of the programme successfully in his P.C. Even after a tiring effort, the Complainant was not successful in his attempt to get it installed and as such he has to run from one technician to another to get his work done. During this time the Complainant was regularly in touch with the OPs and was following every direction of the OPs. But however all his effort became futile and even after trying for several attempts as well as after consulting with various technicians, the Complainant did not successful, he intimated the fact to the OPs and in return the OPs gave their opinion that the P.C. to the Complainant does not support the programme. Before buying both the O.Ps claimed that the programme will run in every system/PC but the fact is far from truth and now when the Complainant complained about the product, the OP remained unheard and even did not care to refund the money to the Complainant. After being confirmed that the Programme will not be supported by the PC the Complainant demanded his money back but both the OPs tried to shed their responsibility and avoid to pay back the amount. This is a case for deficiency of service on the part of OPs for which they are jointly liable to compensate this Complainant adequately.
2. The Written Version of the O.P No. 2 is that the dispute in the present complaint is restricted to the manufacturing defects in the product sold on the website and purchased by him. The Complainant had placed the order for the impugned product on 18.01.2022 for Antivirus software Norton 360 Standard and paid an amount of Rs. 749/- from an independent third party seller. Against the Order Placed by the Complainant, an invoice dtd. 18.01.2022 was issued by seller duly indicating its income Tax Permanent Account Number and Goods and Service Tax Number against the Invoice as AAGCB5278G and 27AAGCB5278G1ZH respectively which suggests clearly that transaction of sale was executed by and between the Complainant and Seller. On the basis of the complaint received by the Complainant, the OP inquired into the issue and escalated the issue to the concerned team and it was found that the product was delivered to the Complainant by the Seller through Merchant fulfilled Network. The OP having a customer oriented approach informed the Complainant that he will have to contact the Seller for redressal of his grievances and if they do not respond within two business days, the OP advised the Complainant to file an A-Z claim. Thereafter, the OP received a response from the concerned team stating that the product was delivered in an intact condition and therefore the Complainant was not eligible for a refund under the A to Z guarantee and the claim was denied. The same was duly communicated to the Complainant by the OP. The product was an MFN product. Contract of sale here was entered between the Seller and Complainant. There was no privity of contract between the complainant and ASSPL. The product here was packed, shipped and delivered by Seller and the same was done without any inclusion of ASSPL. The product was delivered to the Complainant directly by the Seller and the liability, if any with respect to the receipt of a different product and denial of claim can only be fastened upon the Seller. No liability can be fastened upon the OP who merely operates an e-commerce marketplace and the sale transaction was executed between the Seller and the Complainant. The RBI notification vide no. RBI/2009-10/231 dtd. 24^th November 2009, contains directions mandating opening and operation of nodal accounts, not maintained or operated by intermediaries, for facilitating collection of payments from customers on behalf of the merchants/sellers. Hence the payment made into the nodal account is not a payment made to the answering OP. The nodal account is maintained and audited by a bank recognized for such purpose by the RBI and not by the answering OP. The answering OP herein is not the account holder or owner of the nodal account and cannot transaction at will without restriction on the said nodal account. The onus of proof of deficiency is solely upon the Complainant and not on an intermediary, such as the answering OP. The OP relied upon some case law regarding the same. As per Section. 79 of the IT Act, the answering OP being an intermediary, is not liable for any information/material/warranties/representations made by the independent Third-party sellers on the e-commerce marketplace.

The OP No. 1 failed to appear and give version within time although notice served sufficiently to him.

3. From the above it is found that being an intermediary the OP No. 2 has no role to play in the same as per Section. 79 of the IT Act. So the OP No. 2 is not liable for any deficiency of service on its part. In the other hand the OP No. 1 is liable for the same as he had not taken step to return the item from the Complainant and refund the cost of the software to the Complainant. Accordingly it is ordered.

                                                                                          ORDER

The case is disposed of on merit. The O.P No. 1 is directed to refund Rs. 749/- towards cost of the software to the Complainant, Rs. 4,000/- towards mental agony, deficiency in service to the Complainant as Compensation and Rs. 5,000/- towards cost & litigation expenses to the Complainant within 30 days from the date of order, failing which the amount will further carry with 9% interest per annum till realization.

Order pronounced in the open Court today on 25^th day of July, 2023.

Free copies of this order to the parties are supplied.