Haryana

Panchkula

CC/503/2021

DR.K.K NAGPAL. - Complainant(s)

Versus

AMAZON INDIA,BRIGADE GATEWAY . - Opp.Party(s)

IN PERSON

23 Aug 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	503 of 2021
Date of Institution	:	07.12.2021
Date of Decision	:	23.08.2023

 

 

Dr. K.K.Nagpal, aged 76 years, M.B.B.S.D.T.C.D(Retd. SMO), resident of Flat No.178-C, Kendriya Vihar II, Sector-25, Panchkula-134116.

    ..….Complainant

Versus                                                                  

1.     Amazon India, Brigade Gateway, 8^th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram(W) Bangalore-560055 Karnataka (India) through its authorized signatory.

2.     Funarium Play Centres Private Ltd., Flat No.02, Gruhalakshmi Layout, Opp. Ganga Int. School, Nelagedharanahalli, Bengaluru, Karnataka-560073 through its authorized signatory.

                                                                        ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav, Member

 

For the Parties:   Complainant in person.

                        None for the OP No.1.

                        Ms. Ankita, Advocate for OP No.2.

 

                       

ORDER

(Satpal, President)

 

1.             The brief facts, as alleged in the present complaint, are that the complainant and his wife, due to their old age and ill health being unable to carry out the routine cleanliness work at their house, had engaged a maid for domestic help but due to spread of Covid-19 in the month of March 2020, the engaged maid was not able to serve the complainant and facing hardships and inconvenience,  the complainant through his daughter, who lives in USA, placed an online order on Amazon India/OP No.1 site vide order no.403-7935046-0525932 for the delivery of a robotic machine to him for a sum of Rs.54,900/-. The daughter of the complainant had made the online payment for the product and the said product was delivered to the complainant on 29.05.2020 by OP No.1. The product was dropped at the door of the house of the complainant due to Covid protocol. On the next day i.e. on 30.05.2021, the complainant opened the box of the product and installed it with great efforts. When the complainant tried to use the said machine, he found it useless for them because it could not go underneath the beds, sofas and almirahs. Therefore, the complainant immediately on 01.06.2020 contacted the OP No.1 and told about the difficulties faced by him with the said product and clarified that the said product was useless for him. In this regard, daughter of the complainant on 01.06.2021 had sent an email to OP No.1 followed by another email dated 07.06.2020. The OP No.1 did not accept the return request and therefore, the OP No.2 was contacted on 08.06.2020 and was informed that the said product was useless for the complainant due to its incompatibility. The photographs of the product were sent to the OP no.2 as asked and the product was collected by OP No.2 from the complainant. It is stated that the refund of Rs.26,456/- out of Rs.54,900/- was approved by OP no.2  and deduction of Rs.28,444/- on the ground that the product as returned by the complainant was found heavily used, having scratches on it. It is stated that the complainant had used the product for 20/30 minutes only and there was no mishandling on his part. It is alleged that the complainant had returned the product to the OP No.2 in the same condition as it was received by him from OP No.1. It is alleged that the OPs have wrongly deducted a sum of Rs.28,444/- without any justification. Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.

2.Upon notice, the OP No.1 appeared through counsel and filed reply by raising preliminary objections qua complaint is not maintainable; no locus standi; the complainant does not fall under the category of consumer. It is submitted that the complainant had purchased a “Roborock S5 Max Robot Vacuum and Mop, Robotic Vacuum Cleaner with E-Tank, No-mop Zones, Lidar Navigation, Selective Room Cleaning, Super Powerful Suction(white)”  on 11.05.2021. It is alleged that the only issue of the complainant is that the product purchased by him was “useless/of no use” for him. It is submitted that the complainant has himself admitted that he had returned the product to the seller after using the product. It is submitted that in terms of the return policy accepted by the complainant, while placing the order, it was agreed by the complainant that the product was not eligible for return/refund and was only eligible for a replacement, in case a damaged/defective or different product is delivered. It is submitted that despite knowing the return policy, the complainant had used the product and raised the return request after using the product.  It is submitted that being well aware of the fact that grievance of the complainant cold only be resolved by the seller, the complainant had rightly approached the seller. It is submitted that upon receipt of the grievance received from the complainant, the OP No.1 inquired into the matter from the Seller and was informed by the Seller that as one time exception, the return request for the used product was accepted and it was informed by the Seller that the refund will be issued to complainant after deducting some amount as the product had already been used by him. It is submitted that the said fact has already been admitted by the complainant in the present complaint. It is submitted that the product in question was sealed, packed, shipped and delivered to the complainant by the Seller/OP No.2 and OP no.1 has no role in the same. It is also submitted that the product was also returned by the complainant to the Seller and not OP No.1 against which the refund was also issued to the complainant by OP No.2.  It is submitted that against the order, an invoice bearing no.KA-806985685-2122 dated 11.05.2021 was issued by the OP No.2 stating its Income Tax Permanent Account Number(PAN) and GST Registration Number as AACDF2721M and 29AADCF2721M1ZH respectively, clearly evidencing that the  product was sold to the complainant by it. The OP No.1 is a “marketplace-e-commerce entity”  as defined  under Rules 3(g) of the Consumer Protection(E- Commerce) Rules, 2020(E-Commerce Rules), which only facilitates transaction between the buyers i.e. the complainant and sellers such OP No.2. Since the OP no.1 has no relation with regard to manufacturing, selling, or servicing of the product, no liability can be imposed on it and the present complaint is liable to be dismissed qua OP No.1 on this ground alone. It is submitted that the consideration for the product in question was paid by the complainant  to the seller i.e. OP No.2 and was received in the nodal account set up in adherence to the Reserve Bank of India(RBI) direction numbered RBI/2009-10/231 and dated November 24, 2009(RBI Directions). The complainant does not fall within the definition of “consumer” vis-a-vis OP No.1. The complainant has not bought any goods from OP No.1. Therefore, the present complaint is liable to be dismissed qua OP No.1. The OP No.1 had acted as 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. Further, Clause 13 of the conditions of Use stated that the OP No.1 is not liable, in any manner, whatsoever, for performance of the sale agreement executed by and between the buyer and seller on the e-commerce marketplace as the agreement of sale is entered by and between the buyer and seller. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the present complaint is liable to be dismissed.

                Upon notice, the OP No.2 appeared through counsel and filed reply by raising preliminary objections qua complaint is not maintainable; the complainant has come with clean hands and concealed the true material facts. The product was delivered in brand new condition; had no manufacturing defects; delivered on time, the product was the same as advertised in pictures, the product was the same in dimensions as described in the advertisements, was the same in movements as described in the advertisements. The complainant had purchased the product after going through each and every description mentioned on the portal; so, refund of the amount was not justified but still the OP No.2 out of courtesy refunded the 50% amount of the said product. The product received by the OP No.2 was in very bad condition. It was heavily used having scratches all over its body and it had lost its market saleable value. The product in that condition cannot be sold again at its market price; so as per the current market condition of the product, the OP no.2 calculated the partial refund  amount and informed the complainant that only the 50% amount can be refunded to the complainant. The complainant agreed to that amount and the same was issued via Amazon. It is submitted that the complainant before returning the product to OP No.2 had made misrepresentation qua the condition of the product. The complainant had assured the OP No.2 before returning the product to it that product was like a new one but when the product was received by it, it was not like new one. It was heavily used and its body was having scratches all over it; dust tank was full of dust and human hairs, filters were clogged with dirt and mop cloth was dirty. Therefore, the deduction of Rs.28,444/- was rightly made out of Rs.54,900/- and there was no deficiency on  its part. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.2 and as such, the complaint of the complainant is liable to be dismissed.

3.Replication to the written statements of the OPs No.1 & 2 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.The complainant has tendered affidavit as Annexure C-A along with documents as Annexure C-1 to C-8 and closed the evidence by making a separate statement. The evidence of the OP No.1 was closed by this Commission vide order dated 11.05.2023. The ld. counsel for the OP No.2 has tendered affidavit Annexure R-2/A along with documents Annexure R-2/1 to R-2/6 and closed the evidence.

5. We have heard complainant and the learned counsel for OP No.2 and gone through the entire record available on file including written arguments filed by the complainant, minutely and carefully.

6. The complainant, during arguments, reiterating the averments as made in the complaint as also in his affidavit(Annexure C-A) contended that a sum of Rs.28,444/- was wrongly deducted by OP No.2 while refunding the purchase price of product in question. It is contended that the product was useless for him and thus, he was entitled to return it within 7 days as per the return policy of the Ops. The complainant argued that there was no justification on the part of the OPs in making any deductions out of the paid amount qua the product in question and thus, as prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

7.None has appeared on behalf of the OP No.1 after filing of written statement on 25.03.2022 and accordingly, its evidence was closed by the order of the Commission vide order dated 11.05.2023.

8.Today also none is present on behalf of OP No.1. Sh. G.S.Dhaliwal, Advocate has informed the Commission telephonically that now he has no instructions from OP No.1 to appear and defend the present case. As per written statement, the OP No.1 has raised several preliminary objections and claimed immunity from any liability in the matter by virtue of provisions contained in Section 79 of the Information Technology Act. It is alleged that it had acted merely as facilitator between the consumer and the seller i.e. OP No.2, and as such, it had acted as a intermediary through its website, namely, www.amazon.in.                         The aforesaid plea taken by OP No.1 is not tenable in the light of the fact that order was placed through it by the complainant for the delivery of the product in question and payment was made to it and thereafter, partial refund was received through it; as such, it had played an active role in the transaction between the complainant and the seller i.e. OP No.2. Moreover, the misrepresentation qua the utility of the product in question that it could perform the cleanliness work below the sofas, almirahs was made its website. The OP no.1 is massive e-commerce entity providing access to a large number of buyers and sellers is expected exercise due diligence regarding the product which are displayed on its website and from it drives Commission etc. The customers are led to believe and presume that they are being supplied with genuine goods and reports are permissible. It is not the case of OPs No.1 & 2 that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of OPs No.1 & 2 that it is a charitable organization and involved in e-commerce with no business returns for itself, therefore, the plea raised by OPs No.1 & 2 that it is neither the manufacturer nor the supplier of the articles is of no avail to it and therefore, the OPs No.1 & 2 cannot claim exoneration in the present matter.

9.The OP No.2, who is seller as well as manufacturer of the product in question, has justified its act of any making deductions of Rs.28,444/- on the ground that the there was no defect in the product at the time of its delivery to the complainant and as per its return policy, no refund was admissible to the complainant. The learned counsel on behalf of the OP No.2 reiterated the averments as made in the written statement as well as affidavit Annexure R-2/A and justified the act of OP No.2 qua deductions of Rs.28,444/- out of total purchase price amounting to Rs. 54,900/- on the following grounds:-

1. That the product in question was delivered to the complainant in the branded new condition having no manufacturing defect in it. It is contended that the complainant had purchased the product after going through the details of the description of the product as displayed on the portal; thus, the complainant was not entitled to any refund of the amount as per return policy of the OPs.
2. That the product was returned to OP No.2 in a very bad condition and the same was found heavily used, having scratches all over it and thus, the product had lost its saleable value. It is contended that the amount of Rs.28,444/-was rightly refunded to the complainant keeping in view the market condition of the product when it was returned  by the complainant.

10.It is correct that no manufacturing defect in the product in question has been alleged by the complainant but he had purchased the product only on the basis of representation made on the site of OP No.1 qua the fact that the product was suitable for performing the task of cleanliness under the bed, almirahs and sofas etc. On the basis of misrepresentation by OPs qua the utility of the product in question, the complainant was led to purchase the same from OPs by paying a sum of Rs.54,900/. It is not in dispute that the product was useless for the complainant. It is also not in dispute that the complainant had made the request for return of the said product immediately on 01.06.2020 by sending an email to OP No.1. Therefore, no fault can be found with complainant while making the return request as the request was made within 7 days and further, the product was useless for him. Moreover, as per averments made by OP no.2 in para no.5 of its reply, the return policy was shared with the complainant at the time of return of the product which in our opinion has no meaning at all. The return policy either should have been explained/shared before the sale of the product or at the time of making advertisement on the site. Therefore, the complainant was entitled to return the product alongwith refund of its purchase price.

11.Now, coming to the second ground that the product was returned in a bad condition being heavily used and having scratches all over its body; it is found that no such report, in support of its contentions from its technical person or its engineers has been placed on record by OP No.2. The version of the OP No.2 qua the damaged condition of the product on its return is not corroborated and substantiated by any report of its engineer/technical person. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

12.The OP No.2 has failed to place any cogent evidence on record on the basis of which, its act of making the deductions of Rs.28,444/- out of Rs.54,900/- could be justified. In our opinion, there was no valid and justified reason on the part of OP no.2 while making the alleged deductions; hence it was deficient while rendering services by the OPs to the complainant. Therefore, both the OPs are liable, jointly and severally, to compensate the complainant.

13.In relief, it is found that the product was purchased for a sum of Rs.54,900/- out of  which Rs.26,456/- has been refunded to complainant and thus, he is entitled to refund a sum of Rs.28,444/- along with interest.

14.As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund a sum of Rs.28,444/- to the complainant, along with interest @ 9% per annum(S.I)w.e.f. the date of filing of the complaint till its realization.
2.     To pay a lump sum amount of Rs.5,000/- to complainant on account of mental agony, harassment and cost of litigations charges.

 

15.The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 23.08.2023

 

 

 

        Dr.Barhm Parkash Yadav         Dr.Sushma Garg            Satpal

                Member                             Member                  President

 

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

 

                                                Satpal

                                                President