PER:
Nidhi Verma, Member
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainants have filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11, 12 and 13 against the opposite parties on the allegations that the complainant Sh. Shubham Bansal ordered one Phone of Model No. “One Plus 2 (Sandstone Black, 64 GB) to gift his friend Sh. Suvrat Mahajan and the same was delivered by the opposite party No. 1 under order No. 402-7888563-7262747 of the value of Rs. 24,999/- and same was delivered to Suvrat Mahajan at his address D-16, Ranjit Avenue, Amritsar. The payment was debited online from the saving account bearing No. 023801524853 of Sh. Shubham Bansal in ICICI Bank, R.S. Tower Branch, Amritsar on the same day of order dated 9th November 2015. The above mentioned mobile delivered by the opposite party No. 1 was a defective piece and Shubham Bansal informed the opposite party No. 1 with regard to the defect and the opposite party No. 1 ready to take back the delivery of the defective mobile and the above mentioned mobile set was returned back to the opposite party No. 1 on 28th September 2016 and the opposite party No. 1 informed complainant that the refund have been issued by the opposite party No. 1 on the same date to complainant No. 1 Shubham Bansal Bank account i.e. opposite party No. 2 vide reference NO. 201511090139451. The complainant had closed the saving account maintained by him in the opposite party No. 2 Bank and he requested the opposite party No. 2 branch to refund back the same to opposite party No. 1 but the opposite party No. 2 said that it did not receive any refund of Rs. 24,999/- and opposite party No. 1 was on insistence that it had refunded the amount. Both the opposite parties have made the complainant shuttle cock for quiet few months and caused them a lot of mental pain and suffering besides derived him from his legal dues. The complainants also served the legal notice to both the opposite parties through their counsel Sh. Sanjay Aggarwal Advocate on 20th December 2016 for refund of the amount after deducting the default but even after passing of two months there is no response from the opposite parties which proves the uncaring attitude of both the parties qua the complainants. The aforesaid act on the part of the opposite parties amount to great negligence, carelessness, deficiency in service due to which the complainants have suffered great mental agony, inconvenience and harassment at the hands of the opposite parties. The complainant has prayed that the following reliefs may be granted to the complainants against the opposite parties.
(a) The opposite parties may kindly be directed to release the amount of the Mobile amounting to Rs. 24,999/- alongwith interest @18% P.A
(b) Compensation of Rs. 20,000/- on account of mental pain, agony, inconvenience and harassment suffered by the complainants may be awarded to them against opposite parties due to deficiency in service on their part.
(c) Costs of the proceedings alongwith sum of Rs.11.000/- as advocate fees.
3 After formal admission of the complaint, notice was issued to Opposite parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by interalia pleadings that Amazon Seller Service Private Limited (ASSPL) neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale. The sellers themselves (and not ASSPL) are responsible for their respective listings and products on the Website. ASSPL is neither responsible for the products that are listed on the website by various third party sellers, nor does ASSPL intervene or influence any customer in any manner. ASSPL is not involved in the sale transaction between the customer and seller. The conditions relating to the customer’s use of the website (as expressly available on the website) and specifically agreed by the customers state that ASSPL is only a facilitator and cannot be a party to control in any manner any sale transaction on the website. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller. The present complaint is false, frivolous, vexatious and abuse of the process of this commission. The complainant does not fall within the definition of Consumer under the Consumer Protection Act 1986. Admittedly the complainant has not bought any goods from ASSPL nor has the complainant paid any amount/ consideration to ASSPL for the purchased product. The goods have been bought by the complainant from the independent third party seller selling its products on the website operated by the OP No. 1. Accordingly, the complainant does not fall within the definition of Consumer vis-à-vis the OP 1. OP No. 1 is merely an online marketplace where independent third party sellers have listed their products for sale. The OP No. 1 is neither a necessary nor a proper party in the complaint. There is no occasion for the complainant to approach this commission seeking redressal of their grievances against ASSPL. ASSPL is not involved in the transaction between the complainant and the seller. The complainant has explicitly, by virtue of their use of Website, have agreed to be bound by the terms contained in the ‘conditions of use’. While the ‘Conditions of Use’ have been separately annexed with this reply, it may be relevant to emphasize upon the following extracts for the kind consideration of this commission:-
“3 E- Platform for Communication
You agree, understand and acknowledge that the website is an online platform that enabled you to purchase products listed on the website at the price indicated therein at any time from any location. You further agree and acknowledge that Amazon is only a facilitator and is not and cannot be a party to or control in any manner any transactions on the website. Accordingly, the contract of sale of products on the website shall be strictly bipartite contract between you and the sellers on Amazon in.
13 Disclaimer
You acknowledge and undertake that you are accessing the service on the website and transacting at you own risk and are using your best and prudent judgment before entering in to any transactions through the website. We shall neither be liable nor responsible for any actions or inactions of sellers nor any breach of conditions, representations or warranties by the sellers or manufacturer of the product and hereby expressly disclaim and pay all responsibility and liability in that regard….”
The seller in the instant case is cloudtail India Private Limited (Seller) who has not been impleaded as a party to the present complaint. Thus, the present complaint is liable to be dismissed on the ground of non joinder of parties. Further the opposite party 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 Opposite party No. 1 under the said provision of the Act. The order was placed on 9th November 2015 amounting to Rs. 24,999/- and bearing order Id#402-7888563-7262747. Though the website is managed and operated by the OP No. 1, but the transaction is between the seller and buyer which is governed by conditions of Use enumerated on the Website of the opposite party No. 1 This commission has no jurisdiction to entertain the present complaint. The complainant has not approached this commission with clean hands and has suppressed the material facts just to misguide this commission. The complainant purchased the product vide order Id#402-7888563-7262747 from the Seller. Later when the complainant’s friend received the product, allegedly it was found that the product was defective. Thereafter, the complainant returned the Product, however, allegedly no refund has been issued to him till now. The opposite party No. 1 submits that the customer support team of the opposite party No. 1 had assisted the complainant in getting the replacement created from the Seller and the replacement bearing order Id No. 404-6404822-3105166 was created by the Seller to the complainant but the replacement was returned as undeliverable and refund bearing refund reference number 01511090139451, was processed on Wednesday 28 September 2016. The refund was made from the nodal account managed by the designated bank as per the RBI guidelines. The nodal account facilitates collection and deposit of funds from buyers to be credited to the seller’s account / refunded back to the buyer as per the regulatory process for e-commerce transactions. The Reserve Bank of India, guidelines dated 24.11.2009 bearing No. RBI/2009-10/231, requires opening and operation of such a nodal account for settlement of payments for electronic payment transactions involving intermediaries like Amazon Seller Services Private Limited. The refund has already been processed in to the account of the complainant from the nodal account thus; the complaint is liable to be dismissed on this ground only. The complainant informed the opposite party No. 1 that his account wherein the refund has been processed was closed and asked the refund to be transferred to anther account. The opposite party No. 1 asked the complainant to dispute the transaction with the bank as once the refund was processed to his bank account, the same could not be transferred to another account. The refund once processed cannot be re-processed in to the complainant’s account as the payment has already been debited from the nodal account. The present complaint is a gross abuse of the process of law and has been filed with ulterior motives and malafide intention and hence needs to be dismissed. The present complaint is liable to be dismissed on the ground of mis joinder of parties, as opposite party No. 1 has nothing to do with the complainant but yet it has been impleaded as a party to the complaint. There is no privity of contract between the opposite party No.1 and complainant. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.
4 The opposite party No. 2 appeared through counsel and filed written version and contested the complaint by interalia pleadings that the complaint filed by the complainant is pre matured and has been filed in a hurried manner only to harass the opposite parties and to grab the amount more than his entitlement by putting undue pressure on the opposite party insptie of the fact that the claim for crediting the amount regarding reversal entry was duly processed by the opposite party No. 2 but the delay had occurred due to the fact that the complainant had already closed his saving bank account with the opposite party prior to receipt of the said reversal entry. As per records of the opposite party No. 2, the complainant had initiated escalated to the head Service Quality regarding non receipt of refund of Rs. 24,999/-. At the same time, the opposite party No. 2 had also received the said complaint from the office of Banking Ombudsman, Chandigarh in November 2016. On receipt of the complaint the opposite party verified the details and informed the complainant that the bank had not received any credit vide Ref. No. 201511090139451 from Bill Desk. Further, the bank had also clarified that since the complainant’s account was already closed on April 27, 2016, technically, the bank will not be able to raise the chargeback against the disputed transaction from their end. Therefore, the complainant was requested to coordinate with the biller and provide the opposite party complete details of the reverse transaction, like exact date of reversal, the account of ICICI Bank to which the funds were returned but instead of complying with the said requirement, the complainant hurriedly approached opposite party No. 2 without giving the required information to the opposite party No. 2. On receipt of notice from this commission, the bank coordinated with Bill Desk to provide the details of the transaction vide which the amount was reversed to ICICI Bank, against the canceled transaction of Rs. 24,999/- and now the bill desk has confirmed the transaction details stating that the funds have been returned to ICICI Bank on 29.9.2016. Therefore, on receipt of the said information from the Bill Desk, the bank has verified their Pool account and confirm that the funds are available with the bank. As the bank has received the confirmation from Bill Desk only on May 23, 2017 about the transaction details vide which the funds were reversed to customer account, the opposite party could not reserve this amount earlier. The bank is thus ready and willing to return the amount to the complainant through Demand Draft, subject to receipt of consent from the complainant. Therefore, the complaint filed by the complainant against the opposite party No. 2 is infractuous and cannot proceed. The complainant is not a consumer qua the opposite party as the Saving Bank Account maintained by him with the opposite party has already been closed and the complainant has ceased to be the customer of the Bank must prior to filing of the present complaint. Even otherwise, the opposite party No. 2 has not committed any deficiency in service as defined under the Consumer Protection Act 1986 and as such the complainant is not entitled to any compensation as claimed in the present complaint. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same.
5 To prove his case, the complainant has placed on record his affidavit Ex. C-1 alongwith documents i.e. copy of invoice Ex. C-2, copies of e-mails Ex. C-3 and Ex. C4, copy of the legal notice Ex. C-5, copies of postal receipts Ex. C-6 and Ex. C-7, copy of letter dated 9.1.2017 of Banking Ombudsman Ex. C-8, copy of the account statement Ex. C-9 and closed the evidence. On the other hands, Ld. counsel for the opposite party no. 1 has placed on record affidavit of Rahul Sundaram Ex. OP1/1 , copy of authority letter Ex. OP1/2, copy of resolution Ex. OP1/3, copy of conditions of use Ex. OP1/4 and closed the evidence. Ld. counsel for the opposite party No. 2 placed on record affidavit of OP2/1 and closed the evidence.
6 We have heard the Ld. counsel for the parties and have carefully gone through the record
7 In the present complaint , the complainant ordered one phone of model No ‘one plus2 ( sandstone black ,64GB)’ to gift his friend, Suvrat Mahajan and the same was delivered by the OP No 1 under order No. 40278885637262747 for the value of Rs 24,999/- and the same was delivered to Suvrat Mahajan at his address . The payment was debited online from the saving account bearing No. 023801524853 of Shubham Bansal in ICICI Bank ,R.S tower branch , Amritsar on the same day of order dated 9th November 2015. Later on, the complainant found that said mobile was a defective piece and complainant informed the OP No 1 regarding the defect and OP No 1 ready to take back the delivery of the defective mobile and on dated 28.09.2016 complainant return the handset to OP No 1 and they informed the complainant that the refund have been issued by the OP No 1 on the same date in complainant (Shubham Bansal) bank account i.e OP No 2 ICICI Bank vide reference number. 201511090139451.But the complainant had closed the saving account in the OP No 2 bank and he requested the OP No 2 branch to refund back the same to OP No 1 but the OP No 2 said that it did not receive any refund of Rs 24,999/- and OP No 1 was on insistence that it had refunded the amount. Later on, the complainant served the legal notice to both the opposite parties on dated 20th December 2016, postal receipt of the same are Ex. C-6 and C-7) for refund of the amount but both the parties failed to response which shows great negligence , carelessness and deficiency in services on the part of both the parties. The OP No. 1 stated in its written version that the ASSPL(Amazon Seller Service Private Limited) neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale and sellers themselves are responsible for their respective listings of products on the website. ASSPL neither responsible for the products that are listed on the website by various third party sellers nor does ASSPL influence any customers in any manner. ASSPL is not involved in the sale transaction between the customer and seller. The copy of the conditions of use is Ex. OP1/4 and relevant portion is as under:-
“3 E- Platform for Communication
You agree, understand and acknowledge that the website is an online platform that enabled you to purchase products listed on the website at the price indicated therein at any time from any location. You further agree and acknowledge that Amazon is only a facilitator and is not and cannot be a party to or control in any manner any transactions on the website. Accordingly, the contract of sale of products on the website shall be strictly bipartite contract between you and the sellers on Amazon in.
Further, the OP No 1 submits that the customer support team of the OP No 1 had assisted the complainant in getting the replacement created from the seller and the replacement bearing Order ID No : 4046404822-3105166 was returned as undeliverable and refund bearing reference No. 01511090139451, was processed on dated 28 September, 2016. The refund was made from the nodal account managed by the designated bank as per the RBI guidelines. The Nodal Account facilitates collection and deposit of funds from buyers to be credited to the seller’s account / refunded back to the buyers as per the regulatory process for e-commerce transactions. It is submitted that the Reserve Bank of India, guidelines dated 24.11.2009 bearing no RBI/2009-10/231, required opening and operation of such a nodal account for settlement of payments for electronic payment transactions involving intermediaries like ASSPL. The refund has already been processed into the account of the complainant from the nodal account, thereafter , the complainant informed the OP No 1 that his account wherein the refund has been processed was closed and asked the refund to be transferred to another account. The OP No 1 asked the complainant to dispute the transaction with the bank as once the refund was processed to his bank account, can’t be transferred to another account. The OP No 2 stated in their written version that the complainant is pre matured and has been filled a complaint in a hurried manner only to harass the opposite parties and to grab the amount more than his entitlement. The delay had occurred due to the fact that the complainant had already closed his savings bank account with the OP prior to receipt of the said reversal entry. In this regards it is submitted that as per records of the OP , the complainant had initiated escalated to the head service quality regarding non receipt of refund of Rs 24999/- . At the same time , OP had also received the said complaint from the office of Banking Ombudsman , Chandigarh in November 2016 . On receipt of the complaint the OP verified the details and informed the complainant that the bank had not received any credit vide ref no .201511090139451 from bill desk. Further, the bank has also clarified that since the complainant’s account was already closed on 27April, 2016. The bank will not be able to raise the chargeback against the disputed transaction from their end. Therefore, the complainant was requested to coordinate with the biller and provide the OP complete details of the reversed transaction like exact date, the account of ICICI Bank to which the funds were returned but instead of complying with the said requirements, the complainant hurriedly approached the court without giving the required information to the OP. Later on , on receipt of notice from this commission, the bank coordinated with the bill desk to provide the details of the transaction vide which the amount was reversed to ICICI Bank, and bill desk has confirmed the transaction details stating that the refunds have been returned to ICICI Bank on 29.9.2016. Therefore, on receipt of the said information from the bill desk, the bank verified their pool account and on dated 23 May, 2017 confirm that the funds are available with the bank and ready to return the amount to the complainant through Demand Draft.
8 We are of the considered view that the OP No 1 ASSPL merely provides an online marketplace and is not involved in the after sales Services in relation to do any of the product listed on its website. Therefore, there is no deficiency in service or negligence on the part of the opposite party number 1. It is pertinent to mention here that the OP No 1 asked the complainant to dispute the transaction with the bank as once the refund was processed to his bank account, the same could not be transferred to another account. OP No 1 provided full support and guidance to the complainant to get his refunded money. However, OP No 2 instead of getting into the detail facts, himself replied to the complainant in hurried manner that the bank had not received any credit vide reference No. 201511090139451 from bill desk. As complainant provided full detail about its closed account , amount transferred with reference number but OP No 2 amount to great negligence, carelessness, deficiency in service due to which the complainant had suffered great mental agony and inconvenience. We are also of the consider view that the OP No 2 ,later on 23 May 2017 took the effort to get the details from bill desk and on receipt of the information from the bill desk , the bank has verified their pool account and confirm that the funds are available with the bank and are willing to return the amount to the complainant. The complainant approached the OP No 2 in September 2016 ,after informed by OP No. 1 regarding the refund amount to his account. OP No 2 knowing the facts of the complaint that the complainant account was closed in April 2016, and amount was refunded by the OP No. 1 with ref No 201511090139451 on 28 September 2016, they disclosed the matter in hurried manner by saying that the bank had not received any credit vide reference number. 201511090139451 from bill desk. Later on, on May 23, 2017 they gathered the information and confirmed the complainant about the amount they have in their pool account . Question arises here that , whatever OP No 2 did the same in May 2017 to resolve the issue can also perform effectively and efficiently when the complainant firstly approached the bank but they failed to do so. However ,the whole defense of the OP No 2 is itself the self explanatory of the deficiency of service and negligence on the part of the OP No 2 .
9 In view of above discussion we allowed the present complaint and directed to OP No 2 to pay the refund back amount of the mobile amounting Rs 24999/- to the complainants. The present complaint against the opposite party No. 1 is dismissed. The complainants have been harassed by the opposite party No. 2 unnecessarily for a long time. The complainants are also entitled to Rs. 4,000/- ( Rs. Four Thousand only) as compensation on account of harassment and mental agony and Rs 3,000/- ( Rs Three Thousand only) as litigation expenses. Opposite Party No. 2 is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainants are entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
