IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 29th day of December, 2020
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 25/2019 (filed on 14/02/2019
Petitioner : Nikku Philip,
Koodathinkal House,
Sachivothamapuram P.O.
Post Kurichy – 686532.
Kottayam.
Vs.
Opposite Parties : 1) The Managing Director,
Amazon India Pvt. Ltd.
No. 26/1 World Trade Centre
Brigade Gateway Campus,
Dr. Rajkumar road, Malleshwaram
West Bangaluru, Karnatka
560055.
(Adv. Rayin K.R.)
O R D E R
Sri. V.S. Manulal, President
Case of the complainant is as follows:
The complainant had ordered one DMG PU Leather Full Protection Stand New
Flip Cover for Coolpad note and Plus Premium Tempered Glass 9H Hardness
2.5D Curved Edge, Ultra Clear Anti Fingerprints for Coolpad Note 3 from the
opposite party by paying Rs. 528 in advance on 6-12-2018. Complainant had
ordered these products believing the agreement of the opposite party that the
products would be delivered within 5 days. But quiet dismay to the complainant he received a message stating that the products were delivered and requested to rate the delivery experience before receiving the products by him. When complainant brought this to notice of the opposite party on 11-12-2018one Susanth who is the representative of opposite party’s consumer service wing informed that the products were at the local courier hub of the opposite party. It is further informed that the products would be delivered to the complainant and the full amount would be refunded to the complainant in case of non delivery of the product. But the grievance of the complainant is not redressed and the opposite party failed to perform their promise. On 12-12-2018 it was informed that the process for refund of the amount has begun and the reference number would be sent to the complainant in the event of successful completion of the said process. Later on it was informed to the complainant by one Gilam that the complainant would wait till 16-1-2018 for the delivery of the product. When the opposite party failed to comply their promise the complainant filed a complaint before the national consumer help line of the central government. Later the complainant received a direction from the opposite party to return the product along with the original package tag and manual before 7 pm on 17-1-2018. It is submitted by the complainant that the product which are directed to return were not delivered to the complainant. Once again the complainant lodged a complaint in the national consumer help portal. On 2-1-2019 the complainant had received a reply from the opposite party stating that being a facilitator to the manufacturers and sellers the opposite party had a limited role over the products which were sold by the third party sellers through the website of the opposite party. It is further stated in the reply that the opposite party is not at all liable to ensure whether the products were delivered to the purchaser.
It is further submitted by the complainant that due to non delivery of the products which were ordered by the complainant the mobile phone of the complainant got damaged. He averred in the complaint that if the products were delivered on time by the opposite party he could avoid the damages caused to the phone. An amount of Rs. 3099 was spent by the complainant to cure the damage sustained to his mobile phone. The non delivery of the products after receiving the price for the same by the opposite party amounts to deficiency in service and unfair trade practice .Hence this petition.
Opposite party appeared before the commission and filed version contending as follows:
Opposite party is a well reputed company and has a very large customer base and amongst others, manages and operates the website www.amazone.in. The opposite party neither sells nor offers to sell any products and merely provide an online marketplace where the independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective listings and products on the website. Opposite party is not involved in the sale transaction between the customer and seller. The condition relating to the customer’s use of the website specifically agreed by the customers state that the opposite party is only a facilitator and cannot be a party to or control in any manner any sale transaction on the website. The contract of the sale of products on the website is strictly a bipartite contract between the customer and the seller. Information technology act 2000 provides intermediaries with an exemption from liability for any third party information, data, or communication link made available or listed by them.
The complainant is not a consumer of the opposite party. The complainant placed an order for DMG Pu leather fill protection stand view flip cover for coolpad note 3 plus and Plus premium Tempered Glass ,9H hardness 2.50D Curved Edge, Ultra clear Anti-fingerprints for cool pad note 3 plus vide order Id 407-3498756-4673123 on the website from BPC India and Plus Enterprises. The product was delivered to the complainant in intact condition at the registered address provided by the complainant. The grievance of the complainant are criminal in nature which requires thorough investigation for collection of evidence .
The complaints of the complainant were duly addressed and attended and the outcome of the complaint was also communicated to him. The opposite party never obstructed the complainant from his work to talk to him in an insulting manner.
No damages or loss has been caused to the complainant due to any act or omission on the part of the opposite party. There is no deficiency in service on the part of the opposite party. The complainant is not entitled to any relief from the opposite party. Complainant filed prove affidavit in lieu of chief examination and exhibits A1 toA12 were marked . Rahul sundaram senior corporate counsel of the opposite party filed proof affidavit for and on behalf of the opposite party and exhibits B1 and B2 were marked.
On evaluation of complaint , version and evidence on record we would like toconsider the following points.
1.whether the complainant is a consumer of the opposite party?
2. whether there is any deficiency in service from opposite party?
3. If so what are the reliefs?
Point number1
The specific case of the complainant is that he had ordered one DMG PU Leather Full Protection Stand New Flip Cover for Coolpad note and Plus Premium Temperred Glass 9H Hardness 2.5D Curved Edge, Ultra Clear Anti Fingerprints for Coolpad Note 3 from the opposite party by paying Rs. 528 in advance on 6-12-2018. Exhibit A1 is the final details for order 407-3498756-4673123 dated 6-12-2018. On perusal of exhibit A1 we can see that the complainant had placed an order of the products from the opposite party and paid Rs.528 through visa credit card on 7-12-2018. It is proved by Exhibit A2 credit card statement issued by HDFC Bank that on 6-12-2018 an amount of Rs528 is debited from the account of the complainant and the same is credited to the account of the opposite party.
Therefore we are of the opinion that complainant had availed the service of the opposite party for the purchase and delivery of DMG PU Leather Full Protection Stand New Flip Cover for Coolpad note and Plus Premium Temperred Glass 9H Hardness 2.5D Curved Edge, Ultra Clear Anti Fingerprints for Coolpad Note 3 by paying Rs. 528 as consideration for the service to the opposite party. Thus we found that the complainant is a consumer of the opposite party.
Point number 2 and 3
According to complainant though, the opposite party promised to deliver the products, within 5 days they did not delivered it to him and on 9-12-2018 a message was received by him stating that the products were delivered to him and requested to rate the delivery experience .Exhibit A3 is the print out of the g mail from the opposite party to the complainant. In A2 it is stated that the
complainant’s package has been delivered and requested the complainant to rate
his experience. It is stated in Exhibit A4 tracking Id report dated 9-12-2018 that
the consignment was delivered at Kottayam. Thereafter complainant had lodged
complaint before the opposite party stating that the product was not delivered to him and invited the attention of the opposite party on Exhibits A3 and A4 . In response to his complaint one Susanth from the customer care service of the opposite party informed the complainant on 11-12-2018 through exhibit A5 email that the package of the complainant was in their local courier hub , Kottayam and assured that the package would be delivered within 24 to 48 hours. On 16-12-2018 complainant received Exhibit A8 from the opposite party . On perusal of exhibit A8 we can see that the there was a direction from the opposite party that the complainant should return the product along with original packing tags and manual. It is further recorded in exhibit A8 that the product was delivered to the complainant and the complainant returned one item form the product which are ordered by him. This was in contrary to the assurance given by the opposite party through the exhibit A5. However in exhibit A9 dated 23-12-2018 it was stated that the carrier is asking for the alternative phone number of the complainant to enable them to look into the issue. As per Exhibit A4 track record we can see that the package was delivered to the complainant on 9-12-2018 which was a Sunday. The opposite party contended that the product was delivered to the complainant at his registered address. On perusal of exhibit A1 we can see that office of the assistant commissioner of central excise(GST), Kottayam is shown as the address of the complainant. It is pertinent to note that in exhibit A5 opposite party admits that the package was in their local courier hub on 11-11-2018. Thus we cannot accept the contention of the opposite party that the product was delivered to the complainant at his registered address on 9-12-2018 which was a Sunday.
The opposite party contended that they are an intermediary, as defined
under Section 2(1)(w) of the IT Act. It is neither a manufacturer nor a seller of the product in question. No doubt, the role of opposite party is that of an intermediary in the present case, but it cannot be said that it has no role to play in the harassment and loss caused to the complainant due to non delivery of the products which were ordered by the complainant , vide Ex.A1. Online market place Company earns revenue each time a consumer clicks and visits its website. Moreover, the same is being done as per the terms and conditions between the online portal company and the sellers for a consideration. It is the duty of the intermediary that it should verify the bonafides of the seller, who sells the articles and products. Intermediaries are entities and provide service enabling delivery of online contents to the end user. “Intermediary” has been defined in Section 2(w) of the Information Technology Act, 2000 and thereafter the guidelines have been issued in the form of the Information Technology (Intermediary Guidelines) Rules, 2011. For providing protection to the intermediaries, general conditions have been framed as Safe Harbour Protection subject to restrictions mentioned in Sub-Sections (2) and (3)of Section 79 of the Information and Technology Act, 2000.. Section 79 of the Information and Technology Act, 2000, is a safe harbour provision subject to restrictions imposed in sub- sections (2) and (3) thereof. If an online intermediary has specific knowledge or has reasonable belief based on information supplied by the right holder about the contents and the intermediary fails to act despite such knowledge, online intermediary can be held liable for infringement. To prove actual knowledge obviously is very difficult. E-commerce portal is required to identify and report infringement. Amazon has become a place where we can get everything quickly and have it delivered in 2 days. The products are coming from third-party sellers i.e. products sold on Amazon marketplace by merchants. Amazon marketplace serves as a sort of newspaper classified advertisements section, connecting potential consumers with the sellers in an efficient, modern and in a streamlined manner. Amazon places products on its shelves to the stream of commerce. Now a days, the brands are warning consumers against purchasing products online.
In the present case, the complainant placed the order to Amazon for purchase of products. The receipts came from Amazon- the opposite party vide Ex.A1. So, Amazon is a co-seller. Laws need to catch up with reality. It is worth noting that the product is a part of “fulfilled by Amazon” program which means that the product is being stored with Amazon and delivered by it. Amazon should ensure that product being sold on its marketplace by the seller is genuine and delivered to the customers.
The Amazon-opposite party has not placed on record the terms and conditions or any Agreement, which must have been executed between it and seller for allowing its marketplace/portal to seller for selling the products and in the absence of the same, an adverse inference is to be drawn against opposite party and the benefit of safe harbour protection subject to restrictions as provided under Sub-Sections (2) and (3) of Section 79 of the Information and Technology Act, 2000 cannot be given to /opposite party .
18. The definition of “delivery” has been given in Sub-Section (2) of Section 2 of the Sale of Goods Act, 1930, which means voluntary transfer of possession from one person to another. The liability of marketplace e-commerce Company arises from the concept of secondary/contributory infringement. Amazon is not a neutral or passive, instead it optimizes, promotes and offers for sale and its duties are in the nature of pro-activeness.
Perusal of evidence on record clearly establishes that opposite party is not a mere broker or intermediary as considered in the commercial world. We have no doubt whatsoever, that it was acting as a representative or agent of seller during the negotiation. All transactions were routed through the opposite party and the contract was also concluded between the complainant and the opposite party. In view of this, opposite party is personally answerable for the supply and delivery of goods and would also be liable for the consequences arising out of the breach of contract.
State Consumer Disputes Redressal Commission, U.T., Chandigarh in FirstAppeal No.27 of 2017 (Amazon Sellers Service Private Limited v. Gopal
Krishan and others) decided on 17.2.2017 while holding Amazon Sellers Service Private Limited liable has held as under:-
“8. Contention of Counsel for the appellant that as per terms and conditions of sale, no liability can be fastened upon the appellant, is liable to be rejected. An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product” .
It was so held by the Hon’ble National Consumer Disputes Redressal Commission,New Delhi in the case titled as “Emerging India Real Assets Pvt. Ltd. Anr. Vs Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016” that it was bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality standard. If the goods purchasedthrough online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability.”
We already found that the opposite party did not deliver the products to the complainant. Non delivery of products as offered by the opposite party amounts to deficiency in service. It is proved by Exhibit A10 that the complainant spent Rs. 2,900/- for rectifying the damages caused to his phone. Complainant ordered the product to protect his phone from the damages, which could be avoided by the use of the products which were ordered by him. No doubt the complainant had suffered much loss and sufferings due to the deficient act of the opposite party for which they are liable to compensate. In the light of above discussed evidence we allow the complaint and pass the following order.
- We hereby direct the opposite party to deliver the products which were booked by the complainant vide order no.407349875646731223 or in alternative pay Rs.528 to the complainant along with 9% interest from 6-12-2018 till realization.
2 ) We hereby direct the opposite party to pay Rs. 7000/- as compensation to
the complainant for the loss and mental agony sustained by the
complainant due to the deficiency in service from the opposite party.
- We herby direct opposite party to pay Rs. 1500 as the cost of litigation.
Order shall be complied with within a period of 30 days from the date of receipt of Order. If not complied as directed, the award amount will carry9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 29th day of December,2020.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, MemberSd/-
Appendix
Exhibits marked on the side of complainant
A1 : Final details for Order # 407-3498756-4673123
A2 : Duplicate statement credit card statement dtd.17/12/18 by HDFC Bank
A3 : E-mail dtd.09/12/18
A4 : E-mail copy of details (Shipped with Ecom Express) Tracking ID
250697013
A5 : E-mail dtd.11/12/2018 from Amazon
A6 : E-mail dtd.12/12/2018 from Amazon
A7 : Grievance Details (Grievance No.4056876)
A8 : Order and return details
A9 : E-mail dtd.23/12/18 from Amazon
A10 : Copy of invoice dtd.16/01/2019
A11 : E-mail dtd.26/12/2018
A12 : Copy of acknowledgement receipt of petition from Chinganavanam
police station dtd.01/01/2020
Exhibits marked on the side of opposite party
B1 : Copy of Board resolution d22/09/2014
B2 : Copy of conditions of use from Amazon seller services private limited.
By Order
Senior Superintendent
