The case of the complainant’s in short is that by using his mobile he ordered a product on 4.8.2018 before the opposite parties.  The opposite parties had accepted such request of the order from the side of the petitioner. As per direction of the opposite parties the complainant paid entire amount of Rs.2,899/- via internet banking using one Master Card of Axis Bank.  After receiving the order of the complainant the opposite parties informed petitioner that the order for ‘Kuzy-Newwest Apple Macbook pro 15.4’ with Retina Display A 1398 protector vide order No.1038127-5710709 dated 4.8.2017, was confirmed and ready for shipping from the concerned store’. 

On 5.8.2017 at about 7.00 A.M. the opposite parties informed the complainant that ‘the product order was being collected from the merchant and to be packed for shipment but due to some unavoidable circumstances, the complainant was not willing to take the delivery of the product at that very time.  So, on the same day at about 8.30 A.M. the complainant cancelled the order and claimed refund by using the mobile application of the opposite parties.

That after uploading the details of refund and return of the product, the opposite parties sent another SMS to the registered mobile of the complainant for confirmation of the refund and return purpose and requested the complainant to accept the money and that will appear in the petitioner’s original payment method within 2 to 4 business days.  After elapsing of 10 days the amount of Rs.2,899/- was not transferred to the account of the complainant by the opposite parties.  Thereafter the complainant called the opposite parties by using the toll free number but the opposite parties neither tried to help the complainant nor intended to find out the refund money. Thereafter the complainant tried to contact the opposite parties to use the website of the opposite parties but failed to contact.  Thereafter on 7.12.2017 the complainant made a phone call to the customer care of the opposite parties and requested to state the latest position of the aforesaid and to look into the matter on urgent basis.  But no such fruitful result comes out.

That on being refused various occasion the complainant crave to file this instant petition before this Forum for relief with a prayer to direct the opposite parties to make payment of Rs.2,899/- to the complainant, to make payment of Rs.1,50,000/- to the complainant for breach of contract or agreement, to make payment of Rs.1,00,000/- for harassment and mental agony suffered by the petitioner and to pay litigation cost of Rs.50,000/- to the complainant.

The opposite parties contested this case by filing written version denying inter-alia all the material allegations as leveled against them.  The opposite parties submit that complainant has wrongly impleaded ‘Amazon India Pvt. Ltd.’ as opposite party to the instant complaint filed before the Ld. Forum whereas the entity operating  the  complainant hence a complete refund of Rs.2899/- was credited in the account of the complainant on August 9, 2017. When the complainant contacted the CS Team of the answering opposite party regarding the non-receipt of the refund he was provided able and guidance assistance and was provided with a refund reference for the said transaction.  The grievances of the complainant are limited to alleged non-receipt of refund by the complainant for which the opposite party cannot be held responsible as the refund has already been made to the complainant and the complainant was also advised to file a charge dispute with the concerned bank. It is pertinent to mention that the products can only be delivered to the customers once the same has been provided to the answering opposite party. The complainant has failed to implead the seller as a necessary party to the instant complaint. The answering opposite party neither sells products nor does it possesses inspect or guarantee the condition/delivery of the item unless specifically requested form and there is no privity of contract between the opposite party and buyer. So, the opposite party is not responsible for any non-performance of breach of any contract entered into between buyers and sellers. The opposite party also averred that he/they are not liable nor responsible for any actions or inactions of sellers nor any breach of condition, representation or warranties by the seller or manufactures of the products and hereby expressly disclaim or responsibility and liability in that regard. The said opposite party shall not mediate or resolve any dispute or disagreement between complainant and the sellers or manufacturers of the products. They also expressly disclaim any warranties or representations in respect of quality, suitability, accuracy, reliability, completeness, timeliness, performance, safety, merchantability, fitness for a particular purpose or legality of the products listed or displayed or transacted or the content on the website.  This opposite party more over assailed that at no time shall any right, title or interest in the products sold through or displayed on the website vest with Amazon nor shall Amazon have any obligations or liabilities in respect of any transactions on the website.  It is hereby reiterated that the product was scheduled to be delivered to the complainant on August 11,2018 and same could not be delivered to the complainant for reason beyond control of answering respondent.  Answering opposite party provide able and guided assistance and also provided the transaction ID and advised to contact his bank and file a charge dispute as the amount was successfully refunded to the complainants account by the answering opposite party. Lastly the opposite party prayed to reject the complaint petition as it is frivolous, baseless and misconceive one.

 Both sides files written notes of argument and advanced argument which are taken into consideration for passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Titan Paul is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Titan Paul is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as the complainant being the intending purchaser paid consideration money so he is entitled to get service from the opposite party as consumer.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

    Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.302899/-for refund of money amounting to Rs.2899/-which he paid during pressing of order and Rs.100,000/- as compensation for mental agony and other expenses , Rs.1,50,000/- for breach of contract or agreement and litigation cost of Rs.50000/- ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

 The case of the complainant is that he ordered for KUZY NEWEST APPLE MACBOOK PRO 15.4 with RETINA DISPLAY A 1398 PROTECTOR vide order number 10381275-5710709 dated 4.8.2017 and the opposite party had confirmed the order so placed by sending SMS. As per direction of the opposite party the complainant paid Rs.2899/- through internet banking. That on 5.8.2017 at about 8:30 a.m. the complainant cancelled the delivery as such he claimed the refund of undelivered product. The complainant followed the procedure for refund as directed by the opposite party and the opposite party told that refund would appear in the account within 2-4 days. After elapsing a month when the opposite party failed to take any measure then the complainant called the customer care of the opposite party, who also failed to sort out the problem. That on 7.12.2017 the complainant was refused by the opposite party to settle the claim of the complainant.  Then getting no alternative the complainant filed the instant complaint before this Forum praying direction upon opposite party as incorporated in the prayer portion of the complaint petition.

 The opposite party filed written version denying the allegations as leveled against them and averred that opposite party neither sells nor offers to sell any products and merely provides an online market place where independent third party sellers can list their products for sell.  The answering opposite party is not involved in the sell transaction between the customer and seller.  He is mere a facilitator.  The contract of sale of product on the website is strictly a bipartite contract between the customer and seller. He stated that the definition of consumer U/s. 2(1)(d) of the C.P. Act and stated that complainant has not bought any goods from ASSPL nor has the complainant paid any amount/consideration to ASSPL. The complainant purchased goods from independent third party seller selling its products on the website operating by the opposite party. The answering opposite party stated that he merely provided a technology platform where independent third party sellers have listed their products for sell.  It is also admitted that the subject matter of dispute is restricted to alleged non-receipt of refund for ‘Kuzy-Newest Apple Macbook Pro 15.4’ with Retina Display purchased by the complainant. The product was scheduled to be delivered to the complainant on August 11, 2017 but as the product could not be delivered to the complainant hence a complete refund of Rs.2899/- is to be refunded to the complainant. When the complainant contacted the CS Team of the answering opposite party regarding the non-receipt of the refund he was provided able and guidance assistance and was provided with a refund reference for the said transaction.  The grievances of the complainant are limited to alleged non-receipt of refund by the complainant for which the opposite party cannot be held responsible as the refund has already been made to the complainant and the complainant was also advised to file a charge dispute with the concerned bank.  It is pertinent to mention that the products can only be delivered to the customers once the same has been provided to the answering opposite party. The complainant has failed to implead the seller as a necessary party to the instant complaint. The answering opposite party neither sells products nor does it possesses inspect or guarantee the condition/delivery of the item unless specifically requested form and there is no privity of contract between the opposite party and buyer.     

 It is transparent from the case record that the complainant paid a sum of Rs.2899/- for purchasing the Kuzy-Newest Apple Macbook Pro 15.4’ with Retina Display from the opposite party and the complainant cancelled the order before its delivery and requested for refund the price of the article which he paid. The opposite party admitted the episode of purchase and refund of the said price in his written version as well as argument. But when the complainant did not get the refund then he requested the opposite party to get the same but the opposite party failed to take appropriate steps to refund the same. Then the complainant put the matter with the concerned bank and when he did not get the amount refunded from the opposite party then he getting no alternative filed the instant complaint before this Forum praying directions upon the opposite party. The opposite party failed to prove his case that he has already refunded the same to this complainant by filing evidence. It is clear that the complainant suffered at the behest of negligence on the part of the opposite party. So we are in the opinion to allow the prayer of the complainant to that extent as this Forum deems fit and proper.   

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of refund of money which he paid during the order.

    ORDER

 Hence, it is ordered that the complaint case being No.248/2017 be and the same is allowed on contest against the opposite party with a litigation cost of Rs.6000/- payable to this complainant.

The Opposite Party is directed to refund the sum of Rs.2899/- to this complainant which he received from the  complainant during the purchase of impugned article. 

The opposite party is further directed to pay compensation amounting to Rs.10,000/- for harassment and mental agony.

 All the payment are to be made within 45 days from the date of passing final order.

 At the event of failure to comply with the order the Opposite Party  shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.