Haryana

Panchkula

CC/58/2016

PUNEET KUMAR UPADHYAY. - Complainant(s)

Versus

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

VISHAL MADAAN

20 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                             

Puneet Kumar Upadhyay, age 26 years, S/o Sh.Ganesh Dutt, R/o House No.1408, Dashmesh Nagar, E-Block, Villae Naya Gaon, Distt. Mohali (PB).

Official Address: Reader at Permanent Lok Adalat for Public Utility Services, District Courts, Sector-1, Panchkula.

                                                                                       ….Complainant

Versus

1.       Amazon Seller Services Private Limited, Registered Office: Bridge Gateway, 8^th Floor, 26/1, Dr.Rajkumar Road, Mallashwaram (W), Banglore-560055 through its Director Sirinivas Krishan Rao.

2.       Cloudtail India Pvt. Ltd. Office: Unit No.1, Khewat/Khata No.373/400, Mustatil No.31, Village Taoru, Tehsil Taoru, District Mewat, on bilapur-Taoru Road, Mewat, Haryana-122105 through its Managing Director.

                                                                                        ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

For the Parties:     Mr.Vishal Madaan, Adv., for the complainant. 

Mr.Inderjit Singh, Adv., for the Op No.1.

OP No.2 already ex-parte.

ORDER

(Dharam Pal, President)

1. The present complaint has been filed by the complainant against the Ops with the averments that he purchased a mobile phone Yu Yuphoria through website Amazon i.e. OP No.1 which was delivered and billed by the Op No.2 vide invoice No.HR-DEL2-144105041-3102263 dated 06.08.2015 for Rs.7048/- (Annexure C-1) which was received on 08.08.2015.  But from the very first day, the mobile phone was not functioning properly as the Jack (sound Jack, which was fixed on top of phone) was not working and the sound in the ear phone was not coming properly. The complainant sent an email dated 17.08.2015 to OP No.2 regarding the problem in mobile phone and in response to the email, the technical support of Op No.2 had given some instructions to set right the sound jack problem. The complainant followed the process suggested by the Op No.2 but the problem had not been resolved. The complainant again sent email dated 22.08.2015 to technical support of Op No.2 who has again given some instruction to resolve the problem vide email dated 25.08.2015. After following the instruction, the problem remained the same. The complainant intimated the fact to the technical support of Op No.2 vide email dated 25.08.2015 and requested to replace the mobile phone or refund the invoice amount but the technician of Op No.2 had given some more instructions to resolve the issue. Despite following the instructions, the complainant could not get resolve from the problem and every time the complainant got new instructions from the technical support of Op No.2. Thereafter, the complainant tried his best to search the service center of Op No.2 but no service center of Op No.2 is available in the tri-city. After some time, the mobile phone started getting hot and the complainant sent an email dated 12.09.2015 to Op No.2 but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Op No.1 appeared and filed written statement by taking some preliminary objections and submitted that the complainant wrongly impleaded the Op No.1 as party to the complaint. It is submitted that the Op No.1 is a well reputed company and has a very large customer base and amongst others, manages and operates the website (th floor, 21/1, Dr.Rajkumar Road, Malleshwaram (W), Bangalore-560055, Karnataka, India. It is submitted that the Amazon Seller Services Private Limited i.e. ASSPL 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 sale. It is submitted that the sellers themselves are responsible for their respective listings and products on the website and the ASSPL is not responsible for the products that are listed on the website by various third party sellers. It is submitted that ASSPL is not involved in the sale transaction between the customer and the sellers. It is submitted that the contract of sale of products on the website is strictly a bipartite contract between the customer and the seller. It is submitted that the complainant does not fall under the definition of consumer under the Consumer Protection Act, 1986 as the complainant has not bought any goods from ASSPL. It is submitted that the goods have been bought by the complainant from the independent third party seller on the website operated by the OP No.1. It is submitted that the OP No.1 is merely an online marketplace where independent third party sellers list their products for sale. It is submitted that the complainant has also agreed to be bound by the terms contained in the “Conditons of Use” which is reproduced as under:-

“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. 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 and hereby expressly disclaim and any all responsibility and liability in that regard…

…..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 submitted that the complainant purchased a mobile phone from a third party i.e. OP No.2 through the website managed and operated by the OP No.1 hence the seller and the complainant are governed by “conditions of use” enumerated on the website of the OP No.1. It is submitted that this Forum has no jurisdiction to entertain the present complaint. It is further submitted that clause 22 of the “Condition of Use” of the website clearly states that:

     “22    Governing law and Jurisdiction

These conditions are governed by and construed in accordance with the laws of India. You agree, as we do, to submit to the exclusive jurisdiction of the courts at Delhi.”

It is submitted that there is no privity of contract between the OP No.1 and the complainant. It is submitted that the complainant purchased a mobile phone manufactured by the YU Yuphoria from the website of Op No.1 and the said product was delivered at the address of the complainant in a sealed box. It is submitted that the complainant never approached the Op No.1 with any complaint in relation to the product in question. It is submitted that the warranty of product in question is provided by the manufacturer, and is subject to their warranty terms & conditions and the Op No.1 has no role to play in these warranty terms & conditions. Thus, there is no deficiency in service on the part of the Op No.1 and prayed for dismissal of the complaint.

3. Notice was issued to the Op No.2 through registered post and the same has been received back with the report of refusal. It is deemed to be served and the Op No.2 was proceeded against ex-parte vide order dated 20.04.2016.
4. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-17 and closed the evidence. On the other hand, the Op No.1 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 to R1/3 and closed the evidence.
5. We have heard learned counsel for the parties and have also perused the record carefully and minutely.
6. Admittedly, the complainant had placed an order with OP No.1 on 06.08.2015 vide invoice No.HR-DEL2-144105041-3102263 for an amount of Rs.7048/- which was received on 08.08.2015 to the complainant by the Op No.2 but from the very first day of purchase, some defects occurred in the mobile phone as the Jack (sound jack, which was fixed on top of phone) was not working and the sound in the ear phone was not coming properly. The complainant sent an email to the Op No.2 regarding the problem in mobile phone and in response to the email, the technical support of Op No.2 had given some instructions to set right the sound jack. The complainant followed the process but the problem has not been resolved. The complainant again sent the email to technical support of Op No.2 who again has given some instructions but to no avail. The complainant requested the technical support of Op No.2 to replace the mobile phone or refund the invoice amount but to no avail. Thereafter, the complainant searched the service center which could not be found to the complainant in tri-city. The grievance of the complainant is that despite following the instructions of technical support of Op No.2, he could not resolve the problem. The act and conduct of the OPs clearly shows that in this way or that way they want to harass the consumer to avoid the refund of payment made by the complainant. Learned counsel for the OP No.1 raised plea that it never comes in possession of the product, therefore no privity of contract has arisen with the complainant as it only provides online market place where independent third party sellers list their products for sale. This plea itself is sufficient to prove that the OP No.1 company is engaged in the business of providing services through its internet portal to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of moveable goods. If this is the declared business interest of OP No.1, it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not  the case of OP No.1 that it is a charitable organization involved in ecommerce with no business returns for itself, therefore, the plea raised by OP No.1 is distinguished being devoid of any merit. On this point reliance can be taken from case law titled as Rediff.com India Limited 1^st Floor, Mahalaxmi Engineering Estate L.J.Road No.1 Mahim (W) Vs. Ms.Urmil Munjal c/o Gurgaon Gramin Bank decided on 10.07.2015 by the Hon’ble National Commission in Revision Petition No.4656 of 2012.  It is worthwhile to mention here that now-a-days online shopping is spreading everywhere because it is time and money saving but the responsibilities of the companies cannot be over after selling of the product as it is the bounded duty of the companies to satisfy their customers because it does not give any liberty to usurp the money of the consumers either by sending wrong items or defective product. In the present case, it is very well established that wrong item was sent by the seller, therefore, the complainant has a right to seek refund of the price. Such like behaviour and practice is not expected from a company which is selling its product through online. In other words, we can say that this act and conduct of the company falls under unfair trade practice and deficiency in service as defined in Sections 2 (f) and 2 (g) of The Consumer Protection Act, 1986 because it sells or sends the wrong item than the purchased item product even after charging full amount of the product.
7. Moreover, the Op No.2 did not appear to contest the claim of the complainant and preferred to proceed ex-parte, which draws an adverse inference against it. The non-appearance of the Op No.2 shows that it has nothing to say in its defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted. As such, the same is accepted as correct and deficiency in service on the part of the Ops is proved.
8. In view of the above discussion, we are of the view that the present complaint deserves to be allowed and the same is accordingly allowed. The Ops are directed as under:-

1. To refund an amount of Rs.7048/- the cost of mobile phone to the complainant.
2. To pay an amount of Rs.5,000/- as compensation for mental agony and harassment etc.
3. To pay an amount of Rs.5,000/- as cost of litigation.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy. A copy of this order be supplied to the parties free of costs.  File be consigned to records after due compliance.

Announced

20.07.2016       S.P.ATTRI          ANITA KAPOOR              DHARAM PAL

                           MEMBER           MEMBER               PRESIDENT

Note: Each and every page of this order has been duly signed by me.

                                                     DHARAM PAL 

                                                     PRESIDENT