Punjab

Ludhiana

CC/19/567

Dr.Pritpal Singh - Complainant(s)

Versus

Amazon India - Opp.Party(s)

Bhag singh adv

15 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:567 dated 12.12.2019.                                                         Date of decision: 15.11.2023.

 

Dr. Pritpal Singh aged 60 years (Retired PCMS-1), son of Sh. Bachan Singh, resident of House No.219-C, Rajguru Nagar, Ludhiana.                                                                                                                    ..…Complainant

                                                Versus

1. Amazon.in India, Head Office Raj Kumar Road, Maleshwarm (W), Bangluru-560059, Karnataka through its Manager, Managing Director/Authorized Representative.
2. Amazon Seller Services Private Limited (ASSPN) having its registered office at Brigade Gateway, 8^th Floor, 36/1, Raj Kumar Road, Maleshwarm (W), Bangluru-560059, Karnataka through its Authorized Representative.                                                                                                                                                           …..Opposite parties

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Dr. Pritpal Singh with Sh. Gaurav Saggi,                                                    Advocate.

For OP1                         :         Sh. Sudhir Gakhar, Advocate.

For OP2                         :         Exparte.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant ordered few items online from the OPs on 29.09.2019 out of which three items were prime items i.e. for prime members on reduced rates. The complainant received one prime item i.e. LCD of Computer 18.5” for Rs.3499/- on dated 01.10.2019, second prime item the book-star trek volume No.2 for Rs.2099/- on 02.10.2019 but the third prime item i.e. Book Start Trek Volume No.1 worth Rs.2099/- was not delivered. However, the message from the OP was sent regarding delivery of both books ion 02.10.2019, which the complainant did not receive the Book Star Trek Volume No.1. According to the complainant, he contacted customer care service on 04.10.2019 who assured to investigate the matter. The complainant again contacted customer care service on 09.10.2019 upon which the investigation team told that they had sent both the books in a single package, delivered on 02.10.2019 but the complainant said that he had received only one book. Then the OPs told that sometimes one or the other items may got be missing in transit and in such case the company refunds the money for the missing item after investigation. On 10.10.2019, the complainant sent email for refund of the missing item worth Rs.2099/-. However, in the package received on 02.10.2019, on the label weight of the item was mentioned as 2.65 KG but it was found only 1.275 KG. On 16.10.2019, the complainant again sent an email for refund of the missing/non-delivered item but the OPs refused for any such refund. In the end, the complainant has prayed for directing the Ops to refund the amount of Rs.2099/- along with cost and litigation expenses of Rs.5000/-.

2.                None turned up for OP2 despite service of notice through registered post on 09.05.2023 and as such, OP2 was proceeded against exparte vide order dated 15.06.2023.

3.                Upon notice, the opposite party No.1 filed written statement and assailed the complaint by taking preliminary objections on the ground of incorrect impleadment of ‘Amazon.in. India’; maintainability of complaint; suppression of material facts etc.  OP1 stated that the complainant placed an order for Star Trek: The Classic UK Comics Volume 1 and book Star Trek: The Classic UK Comics Volume 2 on 29.09.2019 from an independent third party seller i.e. India Book Distributors (Bombay) Limited and transaction of sale of Volume 1 and Volume 2 was executed between the complainant and independent third party seller vide invoice dated 29.09.2019. The complainant alleged to have received Star Trek: The Classic UK Comics Volume 12 on 02.10.2019 in the package but it did not contain Star Trek: The Classic UK Comics Volume 1. OP1 further stated that the complainant approached it by alleging that he had not been delivered with Volume 1 book upon which OP1 enquired the matter with India Book Distributors (Bombay) Limited who informed that both Volume 1 and Volume 2 were delivered to the complainant in a single sealed and intact package on 02.10.2019. Even the complainant sent emails dated 11.10.2019. According to OP1, the complainant had tendency of seeking refunds on the items on the pretext of items not being delivered to him. Even the complainant had placed around 264 orders from various independent third party sellers on the e-commerce marketplace and had already availed a total concession of Rs.11,590.84 on e-commerce marketplace i.e. amazon.in operative by OP1. A pattern can be observed in the earlier requests for concessions lodged by the complainant with various independent third party sellers wherein the complainant had alleged that either a wrong item was received or that the item ordered by him was not in the shipment delivered to him. The complainant is an abusive customer. Even the complainant has placed picture of package as Anenxure-C9 of the order placed with some different independent third party seller namely Peacock Books for a totally different product and has played a fraud.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections and facts of the case. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of email dated 29.09.2019, Ex. C2 to Ex. C7 are the copies of text messages, Ex. C8 is the copy of email dated 16.10.2019, Ex. C9 is the copy of label on package, Ex. C10 is the copy of photograph of the book, Ex. D is the copy of invoice dated 29.09.2019 and closed the evidence.

5.                On the other hand, counsel for OP1 tendered affidavit Ex. RA of Sh. Rahul Sundaram, Authorized representative of OP1 along with documents Annexure-A is the copy of authority letter, Annexure-B is the copy of resolution, Annexure-C is the copy of order dated 29.09.2019, Annexure-D is the copy of shipment bill and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with documents produced on record by both the parties.

7.                    It is an admitted case of the complainant that on 29.09.2019, he online ordered three items from an independent third party seller i.e. India Book Distributors (Bombay) Limited, Khasra No.14/24/212, 16/3/2, 4/2, 5/2/1, 6/2, 7, Darbari Pur Road, Village Hassanpur, Gurgaon, Haryana-122001 through online platform of the OPs i.e. Amazon.in, an e-commerce market place. The detail of the products is reproduced as under:-

Sr. No.	Item name	Price	Delivered on
1.	LCD Computer 18.5”	Rs.3499/-	01.10.2019
2.`	Star Trek UK Comics Volume No.2 book	Rs.2099/-	02.10.2019
3.	Star Trek UK Comics Volume No.1	Rs.2099/-	Not delivered

 

According to the complainant, he received the items enlisted at serial No.1 and 2 on 02.10.2019 but item at serial No.3 was not delivered to him on that day. However, the complainant first time lodged his complaint with the OPs on customer care service on 04.10.2019 and again on 09.10.2019. As such, there is delay in lodging the complaint by the complainant which has not been explained beyond doubt. Moreover, the complainant has not impleaded the said independent third party seller i.e. India Book Distributors (Bombay) Limited as a party in the present complaint. Its presence was very much essential for effective and complete adjudication of the matter in dispute.

8.                Even in the written statement as well as affidavit, OP1 has specifically stated that the complainant is in tendency of seeking refunds on the items on the pretext that the items have not been delivered to him and that the complainant placed around 264 orders from various independent third party sellers on the e-commerce marketplace and had availed a total concession of RS.11,590.84. Further OP1 mentioned in the written statement as well as affidavit that the complainant of complaining regarding receiving wrong item or that the item ordered by him was not in the shipment delivered to him. However, the complainant had an ample opportunity in rebut the aforesaid averments/allegations of OP1 by filing replication or by tendering additional affidavit. Even during the course of arguments, neither the complainant himself nor his counsel were able to deny the receipt of refund on numerous occasions from the OPs. In this manner, the complainant has failed to establish any deficiency in service of unfair trade practice on the part of the opposite parties. It is the bounden duty of the complainant to discharge the initial onus to prove deficiency in service on the part of the complainant but he has failed to discharge the same.

9.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.            

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:15.11.2023.

Gobind Ram.