BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.418 of 2021
Date of Instt. 16.12.2021
Date of Decision: 08.12.2022
Nikshat Sharma aged 20 years, son of Shri Vijay Sharma resident of Principal residence, Mehrchand ITI Campus, Opposite to DAV College, Dayanand Nagar, Jalandhar.
..........Complainant
Versus
Amazon India through Country Manager India, Brigade Gateway, 8th Floor, 26/1 Dr. Raj Kumar Road, Malleshwaram (W), Bangalore-560055, Karnataka, India.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Vijay Sharma, Auth. Rep. for Complainant.
Sh. Shiva Beri, Adv. Counsel for OP.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant had placed an online order to M/s Amazon on its website for one Acer nitro7 Laptop bearing order no.402-0916572-2313135 on dated 22-12-2019. The total amount paid by him was Rs.75,999/- through online mode of payment (Rs.3215/- through Amazon pay balance & Rs.72,783/- trough PNB Debit card). It is further to inform that he had purchased the product during sale period and the actual MRP of the product was Rs.1,29,999/-. The complainant was shocked to notice that the specifications of the product received were not matching with what the company had projected on its website. On the website the specification like refresh rate of the Laptop was mentioned as 144Hz whereas the received Laptop was showing only 60 Hz. Thereafter, the complainant called up the customer care repeatedly but did not get any resolution to the problem. When contacted the Technical team through customer care, the technical team assured that they will sort out the issue, but one inspection by their official will be carried out and only then some action to address the problem will be taken based on the inspection report. The inspection was scheduled by Amazon for 30th December 2019 and intimation was also sent to the complainant regarding confirmation details of the inspection. The complainant believed on the assurance of the opposite party, but no inspecting officer turned up on 30th December 2019 and when contacted him on his mobile number, he revealed that he was not informed about such inspection by Amazon. The complainant again called up the customer care and was asked to share the pictures and specification of the received Laptop so that online inspection may be done. The complainant shared the desired details through mail dated 30 12-2019. Thereafter, the complainant again brought to the notice of Amazon by sending them detailed email dated 02-01-2020 apprising them that how the complainant has been harassed by the customer care and Technical team of Amazon. The technical team tried their best to convince the complainant that the received Laptop is having refresh rate of 144 Hz only but when failed to convince the complainant, the inspection was again scheduled for the purpose on 04/01/2020. The complainant also lodged complaint with the customer forum under unfair trade practice with the Docket No.1832388 and intimation was sent to Amazon vide email dated 04.01.2020. The inspection was finally carried out by the inspecting officer and confirmed that the received Laptop is having only 60 Hz refresh rate instead of 144 Hz. The complainant had immediately forwarded the inspection report to the Amazon through email dated 04-01-2020. Then the complainant received mail from the executive customer relation team on 05/01/2020, asking the complainant to provide date to arrange the return pick up of the Laptop. The complainant had replied the mail on the same day that he shall accept the return if they will provide him the compensation and the upgraded model of the Laptop because he had suffered great mental torture and agony without any fault. It is not out of place to mention here that the complainant had purchased the Laptop during Sale period at heavy discount of Rs.54000/-. So, the complainant informed the company, vide mail dated 05-01-2020 that he will accept return only if the company will compensate him with the actual cost of the Laptop i.e. Rs.129999/- so that he could purchase the new product from someone else since sale period was over or the company should provide him the upgraded model which should be matching with the ordered product i.e.144 Hz. The Amazon again sent him the mail dated 06/01/2020, agreeing that different product was delivered and will replace it but cannot provide any compensation. The complainant continued complaining the Amazon then he received email from Executive customer relation on 11/01/2020 wherein he was offered Rs.500/- as Amazon pay balance and was asked to confirm the return details. He immediately denied this offer and informed that it is unfair trade practice because Laptop with wrong specification had been delivered to him. He also warned them that Amazon should send him the ordered laptop with of 144 Hz. Else the complainant will approach the Commission for justice. He again received one more message from Executive customer relation, vide email dated 12/01/2020 that the delivered product was as per the specifications mentioned on the website. The complainant replied the mail mentioning that website was showing 144 hz and also informed that video and photo as proof had already been sent to the Amazon. Finally, Amazon admitted vide email dated 14/01/2020 that the specification displayed on its website was wrong and now has been updated to 60 HZ from 144 HZ and again offered him Rs.500/- as token of apology. The complainant again replied that he had ordered the laptop after seeing 144 HZ so the ordered Laptop should be delivered to him else he will be forced to approach the Commission. The OP/Amazon again sent me email dated 16/01/2020 stating that he had received wrong specification but was adamant to provide him the Laptop with 144 HZ, which was shown by the Amazon on its website. He was again offered Rs 500 and return even after the return window was closed. He again replied that he had purchased the Laptop during sale period at a discount of Rs.54000/- so why should he suffer loss due to the gross negligence of the Amazon by displaying wrong specifications. Because of unfair trade practice resorted to by the OP, negligence to show incorrect specifications on its website and deficiency in services, the complainant has suffered lot of pain, mental agony and great loss in his study and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to provide the Laptop of 144 Hz specification to him as promised on the website while placing the order without any hassle or trouble and without paying extra cost. Further, OP be directed to pay Rs.2,00,000/- towards inconvenience, mental tension, loss of work, inter-alia as described in the above complaint and further, OP be directed to pay Rs.21,000/- as litigation expenses.
2. Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the Opposite Party is an intermediary as defined under Section 2 (1) (w) of the Information Technology Act, 2000 and, therefore is not liable for third party content on its marketplace as stipulated under Section 79 of the Act. Through the aforementioned e-commerce marketplace, thousands of third-party sellers can display and sell their products and a number of buyers can purchase the said products. It is further averred that the OP cannot be held liable for contract of sale executed by and between the complainant, i.e. the Buyer and the Seller. The transaction of sale of the Product and a valid contract of sale existed only between the Seller and the Complainant. The Complainant has explicitly, by virtue of the use of the marketplace, agreed to be bound by the terms contained in the conditions of use and sale. It is further averred that the complainant has filed the complaint without any application of mind and unnecessarily impleaded Opposite Party to the present complaint. From the perusal of the conditions of use and sale, it is abundantly clear that the contract of sale was exclusively entered between complainant and the seller, and no plausible cause of action accrued against Opposite Party. Therefore, any liability arising out of wrong product listing of the Impugned Product is that of the Seller of the Product. It is further averred that the complainant is not a consumer of OP and thus, does not have locus-standi to file the present complaint against the OP and no case is maintainable against Opposite Party. It is established by Opposite Party that it merely operates an e-commerce marketplace for the independent third-party sellers to host and publish details about the products or services they wish to sell or advertise. It is further averred that the complainant has not bought any goods from OP. The complainant paid the amount/consideration to the Seller. The product has been bought by the complainant from the seller and the invoice was also issued to the complainant by the seller. Accordingly, the complainant does not fall within the definition of consumer vis a vis OP. On merits, it is admitted that the complainant placed an order from the OP, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. The complainant has proved on record that he purchased one Acer nitro7 Laptop bearing order no.402-0916572-2313135 on dated 22-12-2019 from the OP vide invoice Ex.C-1. Ex.C-2 is document showing the payment on Amazon through Debit Card and account statement Ex.C-3. It has been alleged by the complainant that when he purchased the Laptop through the website, there was a specification like refresh rate of the Laptop was mentioned as 144 hz, whereas the Laptop received by the complainant was showing only 60 hz. He immediately called the customer care and the inspection was scheduled by the Amazon for December, 2019 and the intimation was sent to the complainant regarding confirmation details of inspection vide Ex.C-4. The grievance of the complainant is that though the inspection was confirmed, but nobody turned up for inspection and he continuously remained in touch with the OP and shared the details through email, which have been proved on record from Ex.C-5 to Ex.C10 and for every email, it was replied that the service associate will be in touch with the complainant within the next 6 hours. But nobody turned up then again the complainant approached the OP through email which has been proved as Ex.C-11. In this email, he has given in detail the harassment caused to the complainant because of the attitude of technical team of Amazon. The complainant lodged the complaint vide Ex.C-12, then the inspection was proposed and done and in this report Ex.C-13, it has been specifically mentioned that laptop was having 60hz refresh rate system settings. Again, he sent emails for causing him the harassment. In reply by the OPs, the complainant was asked to get the refund but the complainant refused to get the refund and asked them either to replace the laptop as he purchased the laptop in sale and he wanted the Laptop of same specification or he wanted the actual price of the laptop i.e. Rs.1,29,000/- alongwith compensation, but the OP refused to give him the compensation. The emails and conversations have been proved by the complainant from Ex.C-16 to Ex.C-22.
7. The contention of the Ld. Counsel for the OP is that the OP is an electronic market place and act as intermediary to facilitate sale transaction between independent third party sellers and independent customers. It is not disputed that the OP provided a platform to the complainant to purchase the Laptop from the concerned company. But the fact remains that the complainant has made the payment to the Amazon for onward giving to the seller or manufacturer as the OP was intermediary of the platform provided for both seller and buyer. Amazon cannot escape or run away from its liability on the ground that there was no privity of contract between the buyer and the seller. As per record and the proved documents from Ex.C-1 to Ex.C-22, it is proved that the entire transaction and correspondence was done through the Amazon online portal. It is proved that the complainant purchased the product through Amazon website, therefore there exist the relationship of a consumer and the service provider between the complainant and the OP. The OP opted to provide the services of selling Laptop by giving online platform through their website, therefore the complainant becomes consumer. As per Ex.C-1, the Laptop was sold by OP i.e. Amazon to the complainant.
8. The OP has sought the exemption under Section 79 of the Information Technology Act. Under Consumer Protection Act, 2019 there are rules regarding the liabilities of marketplace e-commerce entities. These rules have been notified on 23 July 2020 by the Department of Consumer Affairs. It has been mentioned that as per rule 5(1) of the liabilities of marketplace e-commerce entities, a marketplace e-commerce entity which seeks to avail the exemption from the liability under sub-section (1) of Section 79 of the Information Technology Act, 2000 shall comply with sub-sections (2) and (3) of that section, including the provisions of the Information Technology (Intermediary Guidelines) Rules, 2011. It has specifically been mentioned that a 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. Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform:
(a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage: Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution.
9. There is no document on the record to show that the OPs has complied with these rules and has ever assisted the complainant in getting the issue resolved through their seller or manufacturer rather the complainant has been harassed as despite commitment nobody from OP come to resolve the issue. As per the record the complainant has booked the order through OP, which was accepted by the OP and the payment was received by the OP. The product was also delivered by the OP. All the correspondence was carried on between the OP and the complainant. Despite the request made for number of times by the complainant, the issue of specification has not been resolved by the OP. There is no denial by the OP that the complainant did not place an order for its specification of 144 hz. Even in the emails, this facts was never denied by the OP. So, this fact is proved that he placed order for this Laptop. From the emails and correspondence, it is proved that there was a specification issue as per report Ex.C-13 and this issue was never resolved by the OP. Thus, it amounts to deficiency in service and unfair trade practice on the part of the OP and therefore, the complainant is entitled for the relief as claimed.
10. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to provide the Laptop of 144 Hz specification with same model and same price to the complainant as promised on the website while placing the order without any hassle or without any extra cost. The complainant is directed to return the Laptop of 60 Hz to the OP at the time of receiving the Laptop of 144 Hz. Further, OP is directed to pay a compensation of Rs.5000/- for causing mental tension and harassment to the complainant and Rs.3000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
08.12.2022 Member Member President
