DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.925 of 2018
Date of institution: 07.09.2018
Date of decision : 01.07.2019
Manoj Kumar son of Shri Rameshwar Dass, resident of House No.496, Phase-6, Mohali, Punjab 160055.
…….Complainant
Versus
Amazon (Amazon Seller Service Pvt. Ltd.) through its Managing Director/Manager, Corporate Office: Brigade Gateway, 8th Floor, 26/1, Dr. Raj Kumar Road, Malleshwaram West Bengalauru, Karnataka 560055.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member
Present: Complainant in person.
Shri Inderjit Singh, counsel for the OP.
Order by :- Shri G.K. Dhir, President.
Order
Complainant purchased one Aroma diffuser from OP for Rs.1,699/- on 24.08.2018 by placing order and thereafter product was delivered to complainant on 25.08.2018. At the time of purchase, it was mentioned in the advertisement and displays that the product is returnable within 10 days. After 2 days of use, complainant noticed that the product is not working properly as per description given in the advertisements. Complainant rang up customer care of OP by mentioning the problems faced by him. Request for refund was submitted because complainant was not satisfied with the performance of the product. However, OP refused to refund the amount by claiming that price of product is non returnable. It is claimed that OP adopted unfair trade practice and that is why this complaint for seeking refund of paid amount of Rs.1,699/-. Compensation of Rs.40,000/- claimed on account of display of misleading and fake advertisements. Rs.15,000/- more claimed as litigation expenses.
2. In reply submitted by OP, it is pleaded inter alia as if Mr.Rahul Sundaram is duly authorised by Shri Rakesh Mohan Bakshi, Director Legal for defending proceedings of this complaint. It is claimed that Amazon Seller Services Pvt. Ltd. (ASSPL) does not sell or offer products, but it only provides online marketing place. Independent third party sellers lists their products for sale, due to which responsibility remains of the sellers and not of ASSPL. Conditions of use of website are specifically agreed by customers, as per which ASSPL is only a facilitator, having no control over the transaction sale. As OP is intermediary and as such in view of provisions of Information Technology (Intermediaries Guidelines) Rules, 2011 liability of OP does not remain. Mall/Shopping Complex managements are not responsible or liable for the acts/omissions of independent third party sellers. Complainant is not consumer within meaning of Section 2 (1) (d) of the Consumer Protection Act because complainant has not purchased any goods from the OP/ASSPL. OP just provided online market place. Complaint alleged to be bad due to misjoinder of parties. Complainant while placing online order accepted conditions of use, as per which contract of sale and purchase of items is strictly a bipartite contract between registered seller and customer. By denying each and every other averment of the complaint and by claiming that OP is neither manufacturer and nor seller, prayer made for dismissal of the complaint by claiming that in view of Clause-22 of conditions of use, courts at Delhi has exclusive jurisdiction. It is further claimed that as the product was non returnable, so complainant was advised by OP to contact seller for resolution of his grievance. Complainant never contacted OP after 27.08.2018, but this complaint filed immediately thereafter on false allegations.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-3 and thereafter closed evidence. On the other hand counsel for OP tendered in evidence affidavit Ex.OPA of Shri Rahul Sundaram, Authorised Representative of OP alongwith documents Ex.OP-1 to Ex.OP-5 and thereafter closed evidence.
4. Written arguments not submitted. Oral arguments heard and record gone through.
5. Perusal of tax invoice/bill Ex.C-1 establishes that online order was placed by complainant with amazon.in for purchase of Electronic Ultrasonic Aroma Diffuser for worth of Rs.1,699/- inclusive of all taxes. As per amazon.in prime Ex.C-2, free delivery of the product will take place by next day and the product will be returnable within 10 days. After receipt of this product by complainant on 25.08.2018 as per his affidavit, he contacted customer care service centre of OP for refund of price because of problems faced by him. In response to that, email Ex.C-3 was sent by OP to complainant for informing as if the item ordered by complainant is non returnable as per policy. So it is obvious that complainant earlier was assured through advertisements as if the product purchased by him will be returnable within 10 days, but when he faced problems, then the product was refused to be returned by claiming that same is non returnable as per policy. As display advertisement Ex.C-2 is given by OP and as such it is bound by terms of it. However, it actually resiled from terms of Ex.C-2 through communication Ex.C-3 and as such certainly OP adopted unfair trade practice by misrepresenting customer regarding return of product within 10 days. For this misrepresentation, complainant had to suffer mental agony and harassment and was put to litigation and as such complainant entitled to compensation and litigation expenses alongwith refund of paid amount of Rs.1,699/- with interest @ 6% per annum with effect from the date of issue of Ex.C-1 namely 24.08.2018 till payment.
6. Counsel for OP vehemently contends that as per Clause-22 of conditions of use, copy of which is produced on record as Ex.OP-3, only courts at Delhi has jurisdiction. Enforcement of this Clause-22 is harsh and oppressive, more so when there is nothing on record to establish that attention of complainant to these conditions of use was drawn by OP at any point of time.
As the product in question delivered to complaisant in area of this Forum and he paid the price online from the area of this Forum, and as such virtually acceptance of contract of purchase took place in Mohali area. Being so, this Forum has territorial jurisdiction.
7. It is also contended by counsel for OP that there is no privity of contract between complainant and OP because OP is just online facilitator providing platform for purchasers and buyers and as such liability of OP does not remain. That submission of counsel for OP again has no force because present is a case in which invoice/bill Ex.C-1 issued by OP through their authorised signatory. Issue of this invoice Ex.C-1 on the letter head of amazon.in its establishes that amazon.in undertook liability of supplying the product. As complainant believed OP at the time of purchase of the product in question by remitting amount to OP and as such now OP cannot wriggle out from responsibility under the garb of technicalities particularly when misrepresentation through displayed advertisement like Ex.C-2 done by OP. Name of the seller in Ex.C-2 is not at all mentioned and as such it is obvious that it was OP who informed complainant through advertisement as if the product will be returnable within 10 days. Benefit from provisions of Information Technology Act and rules framed thereunder in such circumstances cannot be gained by OP. As OP failed to refund received amount despite assurance through display advertisement Ex.C-2 and as such complaint deserves to be allowed.
8. As a sequel of above discussion, complaint allowed by directing OP to refund received amount of Rs.1,699/- with interest @ 6% per annum w.e.f. 24.08.2018 till payment. Product in question will be returned by complainant to OP as and when it seeks for return of the same. Compensation for mental harassment and agony of Rs.3,000/- and litigation expenses of Rs.3,000/- more allowed in favour of complainant and against the OP. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
July 01, 2019
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
