Punjab

Ludhiana

CC/16/18

Vishal Kapoor - Complainant(s)

Versus

Amagon Seller Services Pvt.Ltd - Opp.Party(s)

30 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

 

Consumer Complaint No. : 18 of  04.01.2016

   Date of Decision    :   30.09.2016

 

Vishal Kapoor son of Late Sh.Mohinder Kapoor son of Late Sh.Ram Nath Kapoor, resident of Block-1, House No.810/18/D/7/1, Serial No.407, Street No.9, Upkar Nagar, Civil Lines, Ludhiana-141001.

….. Complainant

Versus

 

1.Customer Service Head, Amazon Seller Services Pvt. Ltd.,26/1, 8^th Floor, Brigade Gateway, Dr Rajkumar Road, Malleshwaram West, Bengaluru, Karnataka-560055.

2.Amazon.in @Patni Enterprises, 266-C, Om Vihar, Metro Pillar, 718, Uttam Nagar, New Delhi-110059.

…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Sunil Kapoor, authorized representative

For OPs                         :         Sh.Rishi Bansal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant a regular customer of Amazon.in, had been buying various items for his personal as well as domestic use. Complainant after having viewed online advertisement of a Universal ‘Xiaomi MI Power-Bank’ of 10,400 mAH, placed an order for the above said product with OP1 vide order ID #171-4889149-8641164 on 12.11.2015 at Ludhiana. Parcel regarding the above said electronic product was delivered on 16.11.2015. That parcel was having tracking ID No.AWB#520160185855. The parcel was received against cash payment of Rs.1148/- including shipping charges at Ludhiana. The said parcel was opened and it transpired that there was a fake/duplicate Xiaomi MI Power Bank contained therein. OP1 has neither provided any bill nor any invoice of the above said product. Even the same was not available in the said parcel. Complainant raised issue with OP1 vide email dated 17.11.2015. OP1 has admitted his guilt telephonically and thereafter, the complainant was called upon to send the fake/duplicate product to Patni Enterprises, 266-C, Om Vihar, Metro Pillar, 718, Uttam Nagar, New Delhi(OP2), so that replacement with a fresh original product may took place. It was undertaken that expenses incurred thereon would be reimbursed. Following that advice, the complainant has sent the product to OP2 by registered parcel on 19.11.2015 having article tracking ID #EP380932854IN dated 19.11.2015. Above said registered parcel containing fake/duplicate product has been delivered back to the complainant with remarks that the said address does not exist. Complainant could not utilize the said product for fault of Ops. It is claimed that Ops have indulged in unfair trade practice and restricted trade practice by selling the fake/duplicate electronic product to the complainant. Refund of Rs.1148/- including shipping charges + registered parcel expenses of Rs.69/- i.e. Rs.1217/- claimed along with compensation of Rs.50,000/-, but litigation expenses of Rs.11,000/- and punitive and exemplary costs of Rs.35000/- more claimed.

2.                In written reply submitted by OP1 and OP2, it is claimed that OP1, a reputed company has a large customer base with registered office at Brigade Gateway, 8^th Floor, 23/1, Dr.Rajkur Road, Malleshwaram (W), Bangalore-560055, Karnataka. Mr.Rakesh Mohan Bakshi, Director-Legal alleged to be duly authorized signatory. It is claimed that OP1 and OP2 neither sells nor offers for sale any product, but merely provides a platform (an online marketplace), where the products are sold through independent 3^rd party. On enlistment, the seller themselves and not Ops are responsible for the respective listings. Ops neither responsible for the products and nor the products listed on the Website. Rather, it is claimed that Op2 is not involved in the sale transaction between the customer and the sellers. Ops are only a facilitator and has no control over the sale transaction held through website. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller. It is pleaded interalia as if the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’); this Forum has no jurisdiction to entertain the present complaint because Courts at Delhi alone has exclusive jurisdiction. Relationship between the parties is on Principal to Principal basis and complaint before this Forum is not maintainable because the complainant has not made “Buyer Stops” as a party. Bill/invoice was not provided by OP1. Compensation can be quantified only on rationale basis after consideration of the produced evidence. Complainant has no cause of action against Ops because Ops are not guilty of delivery of fake product at all. For the acts done by 3^rd party, Ops cannot be held liable.

3.                In order to prove the case of the complainant, representative of complainant Sh.Sunil Kapoor, tendered in evidence affidavit Ex.CA of complainant along with documents Ex.C1 to Ex.C3 and Ex.C4A and Ex.C4B and then closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Rahul Sundaram, Senior Corporate Counsel (Litigation) of Ops along with documents Ex.R1 to Ex.R3 and thereafter, closed the evidence.

5.                          Written arguments received by post from the complainant. Oral arguments addressed by representative of complainant as well as by counsel for Ops. Records gone through minutely. 

6.                It is admitted in para no.10 of affidavit Ex.CA of complainant that he has received Rs.1148/- on 12.3.2016 by way of cheque No.764656 dated 01.03.2016 drawn on Duetche Bank, Bangalore from Ops, during the pendency of the complaint. So, price of the product has been refunded to the complainant by Ops on 12.3.2016. Grievance of the complainant remains that Rs.69/- spent for sending back the product through registered post still remains to be recovered from Ops, in addition to compensation for mental harassment and litigation expenses.

7.                Ex.C1 is the photostat copy of outer cover of the parcel containing the product. Perusal of the same reveals as if the parcel was valued at       Rs.1148/- and the same was shipped from Patni Enterprises, 266-C, Om Vihar Metro Pillar 718 Uttam Nagar, New Delhi. So, this product was sent by OP2 because words ATSPL also endorsed on it. The product was booked from Ludhiana and received at Ludhiana and the complainant found the same as fake at Ludhiana itself for entering into correspondence with the Ops and as such, major part of the cause of action arose at Ludhiana. This is so because the order was placed from Ludhiana, the product was received at Ludhiana and as such, virtually transaction completed at Ludhiana. So, this Forum certainly has territorial jurisdiction.

8.                Ex.C3 is a letter along with cheque No.764656 dated 1.3.2016 for amount of Rs.1148/-. Endorsement on Ex.C3 establishes that amount of Rs.1148/- was refunded through cheque drawn at Deutsche Bank, Bangalore by Amazon Seller Services Pvt. Ltd. As the cheque has been sent by Amazon Seller Services Pvt. Ltd. and as such, it is obvious that OP1 issued cheque for return of the     price of the product returned back by the complainant. In view of issue of cheque for refund of the price amount, being issued by OP1, it is obvious that OP1 was under obligation to ensure that the customer is satisfied. Even through email Ex.C4-A received from Amazon.in, the complainant was informed that refund for Rs.1148/- has been processed. That refund contains the breakdown as item refund of Rs.1099/- and shipping refund of Rs.49/-. So, contents of Ex.C4-A also establishes that refund was ordered by Ops and that is why the same took place. In view of this, submissions advanced by counsel for Ops has no force that Ops have no concern with the transaction in question, vide which, the complainant purchased the product in question.

9.                It is vehemently contended by Sh.Rishi Bansal, Advocate that Ops never called upon the complainant to return back the product and as such, amount of Rs.69/- spent by the complainant for dispatch of the product through postal receipt Ex.C2 not liable to be refunded by the Ops. Even if the product may not have been ordered to be returned back by the Ops, but the complainant thought it fit to send back the product for seeking refund of the price amount and as such, due action has been taken by the complainant for sending the fake product for getting the refund. There is no dispute regarding the fact that full amount has been refunded, but as the complainant did right thing of return of the product and as such, the complainant certainly entitled to refund of Rs.69/-, particularly when contents of his affidavit Ex.CA establishes that bill or invoice even was not sent at the time, when the product was sent by Ops.

10.              Un-exhibited email dated 1.12.2015 placed on record shows that a message from customer service of Amazon.in was sent to the complainant for disclosing that he has suffered a lot with the above said concern and as such, sorry was felt for the inconvenience. Through this email dated 1.12.2015, it was disclosed that the complainant will receive resolution as soon as possible on priority. This message was downloaded from Amazon.in and as such, this message also discloses as if transaction was held by the complainant with Ops, but transaction was not proper and that is why, refund of the price amount was done by the Ops by sending the cheque.

11.              Our attention drawn to the clause No.3 of conditions relating to Use of Amazon.in contained in Ex.R3 for arguing that Ops just provides the platform being facilitator. Even if this term No.3 in Ex.R3 may be there, but despite that Ops themselves refunded the amount by submitting apologize vide email dated 18.11.2015( copy of which is un-exhibited and is available on record) and as such, it is obvious that virtually the term contained in Ex.R3 just prepared for escaping liability as per need. That also is an act of unfair trade practice. Act of non-sending of the bill/invoice along with the product is another act of unfair trade practice. For these lapses by Ops, certainly the complainant is liable to be compensated for mental harassment.

12.              Therefore, as a sequel of the above discussion, present complaint allowed in terms that Ops will refund the amount of Rs.69/- to the complainant within 30 days from the date of receipt of copy of this order. Compensation for mental harassment and agony of Rs.5000/- and litigation expenses of Rs.2000/- more allowed in favour of the complainant and against OPs. Compliance of direction of payment of compensation and litigation expenses be also made within 30 days from the date of receipt of copy of this order. Copies of order be made available to the parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

 (Vinod Bala)                                           (G.K.Dhir)

 Member                                                     President

Announced in Open Forum

Dated:30.09.2016

Gurpreet Sharma.