BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint No.106/17.
Date of instt.:21.04.2017.
Date of Decision:30.08.2018.
Sanjeev Sharma s/o Shri Ishwar Dayal, age about 32 years, r/o House No.301, Balaji Colony, Gali No.3, Kaithal.
……….Complainant.
Versus
- Amazon Sellers Services Pvt. Ltd., Registered office at Brigade Gateway, 8th Floor, 21/1 Dr. Raj Kumar, Malleshwaram (W), Balgalore-560055 (Karnataka) through its Manager.
- Surana Traders, F-2, Nucleus Mall 1, Church Road, Opp. Pune Commissioner Office, GPO Camp, Pune-411001 through its Proprietor.
……..Opposite Parties
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Shri Jagmal Singh, President.
Shri Parmod Kumar, Member.
Present: Shri Amarjeet Singh, Advocate for complainant.
Shri A.K. Khurania, Advocate for the opposite party No.1.
Opposite Party No.2 ex parte.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that OP No.1 is registered company which is running a business of Online Retail Store to sell products through its website and display products on its website for sale and OP No.1 also give guarantee of best services to provide the genuine product with best quality at lowest price. It is further alleged that he had purchased a camera Canon-EOS 5D Mark 3 22.3 MP Digital SLR black of Rs.1,99,990/- from OP No.1 by placing online order No.171-1457901-6898763 dt. 25.1.2017. It is further alleged that on 29.1.17, the said camera was delivered by OP No.1 through courier. It is further alleged that when he opened it, it is found that a wrong and defective without battery Cannon EOS 1000 Camera in place of Cannon EOS 5D Mark 3 22.3 MP digital SLR Camera ordered to OP No.1 by him. It is further alleged that on the same day, he contacted the OPs and made complaint through email and by making telephonic call also. It is further alleged that on 06.2.2017, he filed A to Z form for return the said wrong and defective camera but till date, OPs have not picked the said defective camera for exchange. It is further alleged that he got issued a legal notice dt. 08.3.2017 through Shri Hardeep Singh Kasan and Shri Amarjeet Singh, Advocates, Kaithal requesting the OPs to refund the amount of, but the OPs did not give any reply to the said notice till date. This way, the OPs are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite party No.1 appeared before this forum and filed reply raising preliminary objections with regard to maintainability; locus standi; cause of action and jurisdiction. It is further submitted that the complainant has impleaded Amazon India as OP No.1 whereas the entity operating the URL www.amazon.in sis Amazon Seller Services Pvt. Ltd. (ASSPL), therefore, the complainant has wrongly impleaded the OP No.1 as party to the complaint; that ASSPL neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale; that the sellers are themselves are responsible for their respective listings and products on the website; that ASSPL is not involved in the sale transaction between the customer and seller; that the conditions relating to the customer’s use of the website (as expressly available on the website) and specifically agreed by the customers state that ASSPL is only a facilitator and cannot be a party to or control in any manner any sale transaction on the website; that the contract of sale of products on the website is strictly a bipartite contract between the customer and the seller; the present complaint does not fall within the definition of consumer under the Consumer Protection Act, 1986 as defined u/s 2(1)(d) of the Consumer Protection Act, 1986; that the complainant has not bought any goods from ASSPL nor has the complainant paid any amount/consideration to ASSPL; that the goods have been bought by the complainant from the independent third party seller selling its products on the website operated by OP No.1; that the products was delivered to the complainant in a sealed box condition; that the complainant never approached the OP No.1 with any complaint in relation to the product in question thereby signifying that the product was in order and the complainant had no grievance, whatsoever, with the same and prayed for dismissal the present complaint.
Upon notice, OP No.2 did not appear and proceeded against ex parte vide order dt. 12.12.2017.
3. The complainant tendered in evidence affidavit Ex.CW1/A; documents Ex.C1 to Ex.C10, Mark C1 to Mark C92 and closed the evidence on 30.01.2018. On the other hand, the OP No.1 tendered in evidence affidavit Ex.RW1/A; documents Ex.R1 to Ex.R6 and closed evidence on 24.05.2018. It is pertinent to mention here that ld. counsel for OP No.1 moved an application for issuing the direction to the complainant for making necessary amendment in the cause title of the present complaint and the said application was allowed vide order dt. 15.9.2017. As such, the amended title filed by the complainant.
4. We have heard ld. counsel for the parties and perused the case file carefully and minutely and have also gone through the evidence available on the file.
5. From the pleadings and evidence of the case, it is clear that the complainant placed an Online order No.171-1457901-6898763 dt. 25.1.2017 for purchase of a Canon-EOS 5D Mark 3 22.3MP Digital SLR camera (Black) with Body Only on 25.1.2017 for a sum of Rs.1,99,990/- with OP No.1. The said camera was delivered by OP No.1 through courier to the complainant and when he opened the packet, it was found that a wrong and defective canon EOS 1000 camera without battery, was delivered in place of Canon EOS 5D mark 3 22.3 MP digital SLR, as ordered to the OP No.1 by the complainant. The complainant immediately sent an Email Mark C-7 to the OPs in this regard, which reads as under:-
“I had ordered a canon EOS 5 D Mark 3 digital SLR Camera. My order ID 17114579016898763 but on 29.1.2017 at around 11:10 am my home my mother received packet but courier boy did not get signed on delivery time. When I opened the packet the inside box of the packet had already opened. I found one camera of canon EOS 1000 which is totally different from the product I had ordered. It is a case of cheating. I have informed you by telephonic and in response you have also called me. You assured me to send our representatives. I had already moved an application in police station. Kindly change the product as soon as possible. I had ask you.
Sanjeev Sharma”.
6. From the document on the file, it is clear that after this email, there were many emails Mark C7 to Mark C92 between the complainant and the OPs on various dates about the change of the defective & wrong camera with new one. But the complaint of the complainant was not resolved by the OPs. The complainant was also asked by the OPs vide Mark C15 & Mark C41 to file A to Z form for return the said wrong and defective camera but till date, OPs have not picked the said defective camera for exchange. The OP No.2 did not appear and opted to proceed against ex parte. Therefore, the evidence adduced by the complainant goes unchallenged and unrebutted against OP No.2. The OP No.1 also failed to produce any document on the record vide which it can be proved that the OPs have resolved the grievance of the complainant by changing the wrong and defective camera with new one. The argument of the OP No.1 that he had only provided the platform for selling the goods and is not responsible for the defective goods, has no force, because from many emails placed on the file by the complainant, it is crystal clear that the OP No.1 assured for resolving the matter at the earliest, but has not resolved the same. The ld. counsel for the OP No.1 produced case laws cited in Civil Appeal No.1560 of 2004 titled Sonic Surgical Vs. National Insurance Company Ltd., decided by Hon’ble Supreme Court of India. This authority is not applicable to the facts of the present case, because the order for the camera in question was placed from Kaithal and the product was also delivered at Kaithal, so this Forum has jurisdiction to entertain and try the present complaint.
7. In these facts and circumstances of the case, we are of the considered view that OPs have delivered a wrong product and in spite of complaint made by the complainant failed to resolve the grievance of the complainant which is an unfair trade practice. Hence the OPs are deficient while rendering services to the complainant.
8. Thus, as a sequel of above discussion, we allow the complaint and direct the OPs to refund RS.1,99,990/- to the complainant with interest @8% p.a. from the date of filing this complaint till its realization. The OPs are also burdened with costs of Rs.5500/- as compensation for harassment, mental agony and costs of litigation charges to the complainant. Both the OPs are jointly and severally liable. Let the order be complied with within 30 days from the date of communication of order. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.30.08.2018. (Parmod Kumar), (Jagmal Singh),
Member. President.
Present: Shri Amarjeet Singh, Advocate for complainant.
Shri A.K. Khurania, Advocate for the opposite party No.1.
Opposite Party No.2 ex parte.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even date, the present complaint is allowed. File be consigned to record-room, after due compliance.
Dated:30.08.2018. Member. President.
5. Ld. counsel for the complainant reiterated all the points mentioned in the complaint. He argued that the complainant had purchased a camera Canon-EOS 5D Mark 3 22.3 MP Digital SLR black of Rs.1,99,990/- from OP No.1 by placing online order No.171-1457901-6898763 dt. 25.1.2017. He further argued that on 29.1.17, the said camera was delivered by OP No.1 through courier and when the complainant opened it, it is found that a wrong and defective without battery Cannon EOS 1000 Camera in place of Cannon EOS 5D Mark 3 22.3 MP digital SLR Camera ordered to OP No.1 by the complainant. He further argued that on the same day, the complainant contacted the OPs and made complaint through email and by making telephonic call also and on 06.2.2017. He further argued that the complainant filed A to Z form for return the said wrong and defective camera but till date, OPs have not picked the said defective camera for exchange. This way, the OPs are deficient in service.
6. On the other hand, it is argued by ld. counsel for OP No.1 that ASSPL neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale and the sellers are themselves are responsible for their respective listings and products on the website. He further argued that ASSPL is not involved in the sale transaction between the customer and seller and the conditions relating to the customer’s use of the website (as expressly available on the website) and specifically agreed by the customers state that ASSPL is only a facilitator and cannot be a party to or control in any manner any sale transaction on the website. He further argued that the present complaint does not fall within the definition of consumer under the Consumer Protection Act, 1986 as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. He further argued that the complainant has not bought any goods from ASSPL nor has the complainant paid any amount/consideration to ASSPL. He further argued that the products was delivered to the complainant in a sealed box condition and the complainant never approached the OP No.1 with any complaint in relation to the product in question thereby signifying that the product was in order and the complainant had no grievance, whatsoever, with the same and prayed for dismissal the present complaint.
