IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 22nd day of September, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 211/2020 (filed on 23-12-2020)
Petitioner : Anoop R.
S/o. Rajappan,
Vattamparampil,
Paduva P.O. Ayarkunnam,
Kottayam – 686564.
(Adv. S. Pradeep Kumar)
Vs.
Opposite party : Amazon Seller Services Private Limited
(Address amended as per (ASSPL)Regd address at
IA 212/20) Brigade Gateway, 8th Floor,
26/1 Dr. Rajkumar Road,
Malleshwaram (W)
Bangalore – 560055
(Adv. Rayin K.R.)
O R D E R
Smt. Bindhu R. Member
The case is filed under Section 35 of Consumer Protection Act, 2019.
The complainant is a regular purchaser of products from the opposite party,
who is an online trader of various products. On seeing an advertisement of the opposite party on social media that glare parking knife 200mm priced Rs.410/- is given to customers for 45% reduced rate at Rs.215/-. On the basis of the said advertisement complainant ordered the above said glare parking knife 200mm to opposite party on 12.11.2020 as per order no 405-7222669-7904308 and paid Rs.215/- through bank transfer. On 23-11-2020 when the product was delivered, the complainant found that it was manufactured and marketed by Glare appliances Pvt.Ltd,N.H.27,Gondal Road, Rajkot District, Gujarath and its MRR in India was only Rs.105/-.
The opposite party gave wide advertisement through electronic media that
they were giving 45% discount to the product from its M.R.R of Rs.410/-. The petitioner was defrauded by the opposite party by this misleading advertisement for their undue gain and had to suffer heavy loss. This is an unfair trade practice from the part of the opposite party which caused mental agony to the petitioner. Hence this complaint is filed for the return of the price of the product and compensation.
Upon receipt of notice, the opposite party appeared and filed its version through one Rahul Sundaram as the authorized signatory.
The opposite party’s first contention is that it is the Amazon India which has been impleaded as the opposite party whereas the entity operating is www.amazone.in is Amazon seller services private limited (ASSPL),having its registered office at Banglore. It is to be noted that ASSPL owns and operated the online marketplace www.amazone.in. So the complainant has wrongly impleaded the opposite party.
The contentions of the opposite party are that the opposite party is only an intermediary/electronic platform which provides lakhs of sellers and customers to sell and buy products through the platform provided by the opposite party herein through a bipartite agreement in which the opposite party is not a party and the opposite party never interfere in anywhere in the course of the transaction. The invoice also is issued by the third party seller, here in the present case, the Aggarwal Bartan Store which is not impleaded as a party. The complainant enter into a contract between the seller with a clear understanding that all sale transactions are entered only by and between the independent third party sellers and buyers. The role of the opposite party is only to make the e-commerce market place user friendly for the sellers and buyers as a facilitator. As per the clause 13 of the conditions of use, the opposite party is not liable for performance of the sale agreement executed by and between the buyer and the seller on the E commerce platform. Vide Press note 3 issued by the department of Industrial policy and Promotion signed on 29.03.2016, a clear distinction has been made between market place based model of e commerce and inventory based model of e commerce. The opposite party is marketplace based e-commerce entity who is required to act as a facilitator between the buyer and the seller. Based on the RBI directions, the opposite party does not charge the buyers for the services provided on the ecommerce marketplace. The payments from the buyers go directly into the nodal account set up by the opposite party in favour of the independent third party seller. The opposite party is not the account holder or owner of the nodal account. As per the IT Act also the opposite party is only an intermediary. As per S.79 of the It Act, the opposite party being an intermediary is not liable for any
Information/material/warranties/representations made by the independent third party sellers on the e- commerce marketplace. Thus the opposite party is entitled for the exemption from liability for the information/material hosted on its marketplace.
The opposite party admits that the complainant had purchased a product namely GLARE PARING KNIFE -200 MM/B014P6HQFG (P5-Y674- J50G)vide order no 405-7222669-7904308 on 12.11.2020 from a third party seller Aggarwal Bartan Store, having its address at 185/4,Devi Nagar Suraj Kund Road, Meerut, UP. Against the order, a tax invoice bearing no IN 10375 dated 12.11.2020 for an amount of Rs.215/- was issued by the independent third party seller.
The consideration was paid by complainant directly to the independent third party seller .After getting complaint from the complainant the opposite party enquired the same with the third party seller and the third party seller had informed them that the complainant did not contacted them with any issue. As the dealings were between the complainant and the third party seller, the opposite party has no role in it. If the third party seller sold the product at a price higher than the MRP and though the complainant had not availed the discount offered by the third party seller, the opposite party has no liability in it as the complainant is not a consumer of the opposite party. So for the reasons stated above the complaint is to be dismissed.
The complainant filed proof affidavit along with Exhibit A1 and MO1. The opposite party has not produced any evidence.
On examination of the pleadings and evidence on record, we would frame the issue to be decided as whether there is any deficiency of service made out by the complainant and if so what are the reliefs he is entitled to?
I . The complainant purchased a Glare parking knife 200mm from the online site of the opposite party. According to the complainant he purchased the same influenced by the advertisement on the opposite party site that the said product was sold at 45% discount from its original MRP of Rs.410/- and the selling price was Rs.215 for a period. On 23-11-2020 the product was delivered to the complainant and then only he came to know that the actual MRP of the product was only 105/-. The allegation is that the by receiving a price higher than the actual MRP, the opposite party had committed unfair trade practice and deficiency in service.
II. The opposite party challenged the allegations in the complaint with the contention that they were only an electronic platform which acted as an intermediary only. So they were excluded from any liability regarding this as the complainant bought the product from a third party seller.
III. The first contention of the opposite party is that the complainant has made a mistake of misjoinder by arraying the answering opposite party in the party array instead of the necessary party for the alleged transaction is Amazon Seller Services Private Ltd. The address of the opposite party in the original complaint is “Amazone India Regd. Office Brigade Gate way, 8th Floor,26/1 Dr.Rajkumar Road, Malleswaram(W) Banglore. The opposite party has stated that it was the ASSPL, who is the e-commerce marketplace, to be impleaded as the opposite party. The opposite party had filed an IA 212/21 for correcting the name of the opposite party as the answering opposite party is Amazone Seller Services Private Ltd.(ASSPL)whereas the complainant has made amazone in. as the opposite party. We allow the prayer and the address of the opposite party is corrected in the complaint as per the IA ie Amazone Seller Services Private Limited (ASSPL) (SSPL) ,Brigade Gate way,8th Floor,26/1 Dr.Rajkumar Road, Malleswaram (W)Banglore.) and it is referred as the opposite party herein.
IV. The major contention of the opposite party that they are only an online platform for the sellers and buyers and being such an intermediary, they are not liable for the product related complaints. Consumer Protection Act, 2019 S.2.16 defines “E-commerce means buying or selling of goods or services including digital products over digital or electronic network)” and Section 2.17 defines “electronic service provider” means “a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites)”. It is contended that the opposite party is only a marketplace e commerce entity and hence not liable for any of the fault in the process of the selling and buying.
But the Consumer Protection (E-commerce ) Rules, 2020 says:
Scope of Applicability
Rule (1) Save as otherwise expressly provided by the Central Government by notification, these rules shall apply to:
- all goods and services bought or sold over digital or electronic network including digital products;
- all models of e-commerce, including marketplace and inventory models of e-commerce;
- all e-commerce retail, including multi-channel single brand retailers and single brand retailers in single or multiple formats; and
- all forms of unfair trade practices across all models of e-commerce:
Provided that these rules shall not apply to any activity of a natural person carried out in a personal capacity not being part of any professional or commercial activity undertaken on a regular or systematic basis
- Notwithstanding anything contained in sub-rule (1), these rules shall apply to a e-commerce entity which is not established in India, but systematically offers goods or services to consumers in India.
Rule 3(1) (b) defines e-commerce entity means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce, but does not include a seller offering his goods or services for sale on a marketplace e-commerce entity.
- Duties of e-commerce entities
- An e-commerce entity shall:
- ************************
(2)*************************
(3) No e-commerce entity shall adopt any unfair trade practice, whether in the
course of business on its platform or otherwise.
(4) Every e-commerce entity shall establish an adequate grievance redressal mechanism having regard to the number of grievances ordinarily received by such entity from India, and shall appoint a grievance officer for consumer grievance redressal, and shall display the name, contact details, and designation of such officer on its platform.
(5) Every e-commerce entity shall ensure that the grievance officer referred to in sub-rule (4) acknowledges the receipt of any consumer complaint within forty-eight hours and redresses the complaint within one month from the date of receipt of the complaint.
(6) *************************************
(7)**************************************
(8)**************************************
(9)**************************************
(10)*************************************
(11) No e-commerce entity shall-
(a) manipulate the price of the goods or services offered on its platform in such a manner as to gain unreasonable profit by imposing on consumers any unjustified price having regard to the prevailing market conditions, the essential nature of the good or service, any extraordinary circumstances under which the good or service is offered, and any other relevant consideration in determining whether the price charged is justified;
(b) ******************
(5) Liabilities of market place e-commerce entities
(1) A marketplace e-commerce entity which seeks to avail the exemption from liability under sub-section (1) of Section 79 of the Information Technology Act, 2000 (21 of 2000) shall comply with sub-sections (2) and (3) of that section, including the provisions of the Information Technology (Intermediary Guidelines) Rules, 2011.
(2) Every marketplace e-commerce entity shall, require sellers through an undertaking to ensure that descriptions, images, and other content pertaining to goods or services on their platform is accurate and corresponds directly with the appearance, nature, quality, purpose and other general features of such good or service,
(3)*******************************************
(a)*******************************************
(b) a ticket number for each complaint lodged through which the consumer can track the status of the complaint.
(V) It is the duty of the intermediary that it should verify the bona fides of the seller, who sells the articles and products. Intermediaries are entities and provide service enabling delivery of online products 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.
VI. 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. Suppose the HP informs an intermediary that it does not manufacture and sell mobile covers, thus, all products on its portal are counterfeit and must be removed. On that basis e- commerce portal/intermediary can insist that it must provide specified URL to act upon the request. Internet Protocol (in short, "I.P.") owner will need to put resources to constantly monitor online space and to report to the intermediary seeking its removal. 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 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.
VII. 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. In case in hand Amazon facilitated infringement by OP no 2-Seller and provided a space for sale of infringing product. Amazon had actual or constructive knowledge of such infringement and has reason to believe that an infringement had occurred at its place as the product was packed in its box and delivered by it to the complainant. As such, it is also personally and jointly liable. 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.
VIII. As per the MRP Act and other related regulations, no manufacturer or supplier can sell a packed commodity without having its MRP imprinted on it or sell the same at a price exceeding the MRP printed. Any violation of this rule can be prosecuted at appropriate Fora by the consumers. So if the any seller sells a product at a price higher than the MRP is liable for doing unfair trade practice. In such acts, the manufacturer, the seller and the electronic platform if any are equally liable as per the Consumer Protection Act, 2019.
IX) Here the Exhibit A1 is the Tax invoice issued by the opposite party for the seller which shows that the price of one unit of the product is Rs.191.96 and after adding 12% GST the total rate is Rs.215/- whereas the complainant alleges that this price is much higher than the original MRP of the product. MO1 is the Glare Pairing Knife - 200MM purchased by the complainant. On a detailed perusal of the MO1 we find that the MRP printed on it is Rs.105/- inclusive of all taxes. In A1 invoice the MRP is shown as Rs.215 including GST. This is found to be an unfair trade practice for which the opposite party is liable. The opposite party contends that it is not aware of such an unfair trade practice as the seller directly delivers the product to the customer. But as discussed above, as per the provisions of the Consumer Protection Act,2019, the ecommerce platforms cannot evade from the responsibility of the deficiency of service, unfair trade practice or restrictive trade practice done by the sellers on its platform, though the seller is not a party to the complaint. The complainant has received the product delivered from Amazon, paid to Amazon and if it had to be returned, that also to Amazon. Then the contentions of the opposite party are not tenable.
X. The opposite party has cited several decisions but we don’t think that all those decisions have any relevancy in deciding this case. The opposite party is found to b e liable for the unfair trade practice and the complaint is allowed directing the opposite party to refund the excess amount of Rs.23.04/- collected from the complainant along with an interest @9% p.a. from the date of delivery i.e. 23-11-2020 till the date of realization. The opposite party is further directed to give an amount of Rs.10, 000/- as compensation to the complainant.
The opposite party is hereby directed to adopt rules and practices to curb the unfair practices of its sellers through their platform.
The Order shall be complied within 30 days from the date of receipt of this Order. If not complied as directed, the compensation amount will carry 6% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 22nd day of September, 2020
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Tax invoice issued by opposite party
Court Exhibits
MO1 – Glare Paring Knife - 200MM
Exhibits marked from the side of opposite party
Nil
By Order
Assistant Registrar
