Delhi

North

CC/174/2019

SHUBHAM TRIVEDI - Complainant(s)

Versus

AMAZON INDIA PVT. LTD - Opp.Party(s)

12 Dec 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 174/2019

In the matter of

(as per amended memo of parties)

Sh. Shubham Trivedi.

B-214, Nehru Vihar

Timarpur-110054                                                                                            ... Complainant

Versus

Chairman & Managing Director

Amazon India Pvt. Ltd.

Brigade Gateway, 8^th floor, 26/1

Dr. Rajkumar Road, Malleshwaram (W)

Banglore-560055, Karnataka                                                                          …Opposite Party-1

Savex Technologies Private Ltd.       

Exclusive Online                                                                               

C/o Amazon Seller Services Pvt.  Ltd.

26/1, 10^th floor, Brigade World Trade Centre

Dr. Rajkumar Road, Malleshwaram (W)

Banglore-560055, Karnataka                                                                          …Opposite Party-2

ORDER
12/12/2024

Ms.Harpreet Kaur Charya, Member

Jurisdiction of this Commission has been invoked by Sh. Shubham Trivedi, the Complainant against Amazon India Pvt. Ltd. /e-commerce platform OP-1 and Savex Technologies Pvt. Ltd. (Seller) as OP-2.   

1. Briefly stated, facts as per the complaint are that, the complainant placed an order of Samsung M30s mobile by using mobile application of OP-1 on 02/10/2019.  An invoice for Rs.12,599.10 was issued.  The mode of payment being on- line through debit card. 
2. On 03/10/2019, the complainant received notification stating that the package was out for delivery.  The complainant called the delivery agent to deliver the package before 9.00 am as the complainant had to attend his Law class.  It has been alleged by the complainant that he called several times to the delivery agent but his call was not answered. 
3. At 9.35 am, the delivery agent called the complainant stating that the tyre of his bike had got punctured the package could not be delivered on time.  The complainant instructed him to handover the package to his roommate.  The roommate of the complainant when opened the package found that the seal of the mobile phone box was already broken.  Upon opening the box he found mobile phone and user manual missing ,except all other accessories.
4. Immediately the complainant was informed by his roommate through message as he was attending his class.  Thereafter, the complainant registered a complaint with OP-1 where, customer care executive assured the complainant that internal inquiry will take 3 to 5 days.
5. It has been alleged by the complainant that there was a narrow and slight cut on the outer packet of the package.  It was so precise that a normal student/person will not be able to see it at one glance.  The same was also informed to the customer support executive. 
6.  On 09/10/2019, the complainant was informed by OP-1 that neither any refund nor any replacement will be initiated and even refused to share their internal inquiry report. 
7. Legal notice dated 11/10/2019 demanding refund/replacement was issued by the complainant, which was not complied with despite service.
8. Feeling aggrieved by the act/omission of OPs the complainant has prayed for directions to OPs to refund the entire amount alongwith interest at the market rate alongwith compensation on account of mental agony and emotional distress due to non delivery of mobile phone.
9. The complainant has annexed the invoice dated 02/10/2019 as Annexure-A, the copy of the passbook reflecting transaction of Rs.12,599.10 as Annexure-B, screen shot of the call record as Annexure-C,  photograph of the package as Annexure-D, email dated 07/10/2019, 11/10/2019  as Annexure-E & Annexure-F respectively.
10. Notice of the present complaint was issued to OP-1 & OP-2.None appeared on behalf of OP-2 despite service neither any reply was filed on their behalf.  Hence they were proceeded ex-parte vide order dated 12/04/2022.
11.  Written statement was filed on behalf of OP-1 raising several preliminary objections such as: the complainant has impleaded Amazon Seller Services Pvt. Ltd. (hereinafter as ASSPL) through its Chairman and Managing Director; complainant is not a consumer qua OP-1;   OP-1 is neither a seller nor a manufacturer or service provider; the complaint pertains to fraud and same cannot be decided in summary proceeding under the Consumer Protection Act;  product was delivered to the complainant at his registered address on 03/10/2019 and the complainant is bound by conditions of sale at the time of registering on the website. 
12. The complainant had made payment to the seller in the nodal Account set up in pursuance to Reserve Bank of India Guidelines Notification dated 24/11/2009 bearing no. RBI/2009-10/231 which requires to maintain a bank account for facilitating collection of payment from customers on behalf of the merchant/sellers thus it is not a payment made to OP.  The purpose of a nodal account is to hold funds on behalf of customers who make purchases on e-commerce website/market place and vendors who transact on the e-commerce website.  It safeguards the interests of customers and sellers on the e-commerce market place so that payments are collected, processed and payouts are done to relevant vendors without undue delay or interference from e-commerce market place.   Nodal account is a type of current account which is used to hold the funds on behalf of customers and sellers payouts to safeguard the interest of two parties.  A nodal account ensures that money does not legally belong to the intermediary (OP-1) at any point of time. 
13. The merchandise was delivered to the complainant in a factory sealed condition and the possibility of the product missing from the original factory packed phone is unheard of.  The product was shipped in an additional tamper evident packaging to spot tampering and the same is highlighted to all ‘amazon.in’ users and also communicated over email/mobile and website as a matter of abundant precaution.
14. It has been submitted that the query and complaint by the complainant was duly responded and as per information received from the third party seller, the correct and un-tampered product as ordered by the complainant was duly delivered at the complainant’s address.
15. OP-1 does not sell or offer to sell any product to the buyers and neither does ASSPL advertise or endorse any specific product or service on its Website or anywhere else.  It is submitted that ASSPL is an online marketplace where independent third party sellers list their product for sale.  Any seller is free to list any product for sale and buyer is free to choose and order any product from any seller selling that product on the Website and there is no influence or interference of ASSPL in the said process of listing/buying of products.   It is relevant to mention here that in the entire sale transaction is between the independent third party sellers and the buyers, all payments are made directly to the sellers by the buyers/customers.
16. The complainant is bound by the “Conditions of Use”:-

3"3.E-Platform for Communication

You agree, understand and acknowledge that the website is an online platform that enables 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 a strictly bipartite contract between you and the sellers on Amazon.in.

13. Disclaimer

You acknowledge and undertake that you are accessing the services on the website and transacting at your own risk and are using your best and prudent judgment before entering into any transactions through the website. You further acknowledge and undertake that you will use the website to order products only for your personal use and not for business purposes. 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 manufacturers of the products nor hereby expressly disclaim and any all responsibility and liability in that regard. We shall not mediate or resolve any dispute or disagreement between you and the sellers or manufacturers of the products.

We further expressly disclaim any warranties or representations (express or implied) 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 (including product or pricing information and/or specifications) on the website. While we have taken precautions to avoid inaccuracies in content, this website, all content, information (including the price of products), software, products, services and related graphics are provided as is, without warranty of any kind. We do not implicitly or explicitly support or endorse the sale or purchase of any products on the website. 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."

17. OP-1 has submitted that the complainant has annexed the screen shot claiming it to be the proof of communication with the delivery agent.  However, same is not a substantive proof as they are not aware of the conversation that took place between the complainant and the delivery agent.  It has been denied that OP-1 is responsible for the non-delivery of the product rather as per information received the correct and un-tampered product was delivered to the complainant at his registered address.  Rest of the contents of the complaint have been denied with the prayer for dismissing the complaint alongwith cost on the basis of preliminary submission, objection and reply on merit and in alternative deletion of OP-1 from the array of the party being a facilitator and unnecessary party.
18. They have annexed the Authority letter and Board Resolution as Annexure-A & Annexure-B, Reserve Bank of India Guidelines as Annexure-C, Literature of the features of tampered evident packaging as Annexure-D and Condition of Use as Annexure-E with their written statement.
19. Rejoinder to the written statement of OP-1 was filed by the complainant, wherein it was submitted that the relevant para of “Condition of Sale” is not relevant as the complainant acted and purchased the product after seeing Amazon fulfilled Tag, where products are stored, packed and dispatched by OP-1.  The complainant was forced to purchase another new mobile handset as the product ordered with OP-1 was not delivered.
20. The complainant has also reproduced the relevant para of policy named “About items fulfilled by Amazon”

Fulfilled by Amazon indicates that products are stored, packed and dispatched by Amazon.

A fulfilled by Amazon item, identified by the “a Fulfilled” logo, indicates:

1. Orders containing items fulfilled by Amazon worth Rs. 499 or more are eligible for FREE.
2. Fulfilled by Amazon items may be eligible for Guaranteed Delivery in select cities.
3. Products are stored, packed and dispatched by Amazon
4. Order delivery tracking to your doorstep is available ( for more details, refer Track your package)
5. Products can be returned easily by visiting our Return Support Centre
6. A free replacement is available if the item qualifies (for more details, please refer: About Free Replacements)
7. Amazon handles all customer service.
8. Orders may be placed using Pay on Delivery as a payment option (For more details, please refer: about Pay on Delivery)

21. Rest of the contents of the written statement have been denied and those of complaint have been reaffirmed.
22. It has been submitted that the product purchased by the complainant was an ‘Amazon Fulfilled’ product hence; OP-1 was responsible to fulfil the services and also any act done by an agent of OP-1, makes OP-1 liable.
23. OP-1 never disclosed and shared the internal inquiry report to the complainant based on which the request for refund/replacement was rejected.  The complainant has annexed the printout of Order details as Annexure-A,  printouts of certain news reports from internet as Annexure-B-1, Tax invoice dated 28/11/2019 of the 2^nd new handset ordered by the complainant as Annexure-C and printout of the “about items fulfilled by Amazon” as Annexure-D.
24. OP-1 has filed sur-rejoinder to the rejoinder dated 27/02/2020 filed by the complainant.  It is seen that OP-1 has filed the same without moving appropriate application for bringing it on record.  Perusal of the order sheets also shows that no order has been passed with respect to taking the said sur-rejoinder on record. 
25. We have gone through the sur-rejoinder where it is observed that it is an attempt by OP-1 to improve their defence.  OP-1 had an opportunity to deny and plead the correct facts in their written statement which has not been done in the instant case; hence we are not inclined to take the sur-rejoinder on record.   The same was also not pressed by OP-1 on subsequent dates.
26. Evidence by way of affidavit was filed by the complainant reiterating the contents of the complaint and rejoinder.  He has relied upon the invoice of order dated 02/10/2019and the same is  exhibited as Ex.CW/1, the bank account statement reflecting the debit entry of Rs.12,599.10 as Ex.CW/2,  the screenshots of call details with the delivery agent as Ex.CW/3, the reply from Amazon Customer Service as Ex.CW/4, the copy of  notice sent through mail as Ex.CW/5,
27. The complainant has also got exhibited the email received by complainant on ordering the said product mentioning that the product was Amazon fulfilled and the same is Ex.CW/6 and policy of ASSPL regarding Amazon fulfilled product as Ex.CW/7, invoice dated 28/11/2019 for the 2^nd new handset ordered by the complainant to continue his study and academic work as Ex.CW/8.
28. Sh. Rahul Sundaram, the Authorised representative of OP-1, working as Senior Corporate Counsel has been examined on behalf of OP-1.  He has also repeated contents of their written statement on affidavit.  They have got exhibited  the authority letter as Ex.OP1/1 and copy of Board Resolution date 22/09/2014 as Ex.OP1/2; copy of the email pertaining to the delivery of the product as Ex.OP1/3 (The same was not filed with the written statement), an email communication sent to the complainant ensuring a secured delivery disclosing the OTP as Ex.OP1/4 (the same was not filed with the written statement), “Condition of Use”  as Ex.OP1/5 and Condition of Sale between seller and the customer as Ex.OP1/6.
29. We have heard the arguments of Ld. Counsel for the complainant and Ld. Counsel for the OP-1.  We have also gone though the written argument filed on behalf of the complainant and OP-1.
30. The complainant has alleged that though the package was delivered but the product was missing, it is important to go through the contents of the complaint. In para 6 and para 7 of the complaint, it has been stated that the package was delivered to the complainant’s roommate at his request, which are being reproduced hereunder:

6. That, at 9.35 am when complainant was on his way to college, Delivery man called and said that his bike’s tyre had got punctured so he came late.  That, complainant asked him to give the package to his roommate, who was in the room at that time.  The screenshot of all cal details is attached as Annexure-C.

7.  That when complainant’s roommate opened the package, he found that the seal of the mobile phone box was already broken and upon opening the box he found all other accessories except mobile phone and user manual.

32.Further, in para 10 of the complaint, it has been stated by the complainant that he was informed by his roommate that there was a slight cut on the outer packet of the package. para 10 is being reproduced :

33. As stated in the para above, the complainant was informed by his roommate regarding the “narrow and slight cut” on the outer packet.  To support his allegations complainant has filed coloured photograph of the package, however from the photograph we are unable to ascertain the cut on the package. The complainant has not filed/produced original package before this commission.

34. The complainant has also not got his roommate examined who is stated to be the recipient of the package, who opened the package. At the same time an un-boxing video has also not been placed on record to show that the package delivered was tampered and the phone/contents were missing .When the complainant himself is negligent, he cannot allege deficiency in services against OP-1. The onus was on the complainant to establish that the package delivered was tampered. Being so we are of opinion that the complainant has failed to prove his allegations.

​

36. Section 2(1)(g) ,The Consumer Protection Act, 1986 defines ‘deficiency’ which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. OP-1 has deliberately withheld relevant information from the complainant. The customer has legitimate right to access the investigation report. OP-1‘s failure to share this information is breach of their obligations, resulting in deficiency in service.
37. Therefore, only for the limited purpose as discussed above we hold OP-1 deficient in services for not sharing the investigation report with the complainant, and direct OP-1 to pay Rs.7,500/- to the complainant as compensation for the said deficiency in services. The order be complied within 4 weeks from the date of receipt of this order. In case of non- compliance, OP-1 shall be liable to pay interest @ 7% p.a. on the said amount from the date of order till realization.
38. Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

(Divya Jyoti Jaipuriar)

President