Delhi

North East

CC/338/2016

MR. SANDEEP KR. JAISWAL - Complainant(s)

Versus

Amazon Seller Service Lt.d - Opp.Party(s)

30 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 338/16

 

In the matter of:

 

	Mr. Sandeep Kumar Jaiswal H.No. 529, Janta Flat GTB Enclave, Delhi-110093.	Complainant
	Versus
1.       2.           3.	Amazon Seller Services Pvt Ltd Ground Floor, Eros Corporate Centre Nehru Place, New Delhi-110019.   Managing Director Amazon Seller Services (India) Pvt Ltd Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore-560055, Karnataka   Managing Director Motorola Solutions India Pvt Ltd Motorola Excellence Centre 415/2 Mehrauli –Gurgaon Road Sector-14, Gurgaon-122001. Haryana	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION :

12.12.2016 30.10.2019 30.10.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane to the present complaint as culled out by the complainant are that his friend Mr. Ashish Mishra (Purchaser), staying in his vicinity/locality had placed an order on 05.10.2016 of MOTO G Play, 4^th Gen (Black) mobile phone bearing model No. X000L95045 manufactured by OP3 through OP1 and OP2 online website for a sum of Rs. 8,999/- on Cash on Delivery (COD) to be delivered at the complainant’s address due to his non availability at his own address due to being employed as a Sales Executive requiring frequent travelling. However, OP1 and OP2 committed error in the name at the time of issuing invoice wherein instead of considering the actual user i.e. Mr. Ashish Mishra who had placed the order, assumed the complainant as the purchaser and put in his name i.e. the complainant’s on the bill as C/o for both billing as well as shipping address. The subject mobile got delivered on the complainant’s address on 10.10.2016 when the consideration amount was paid. However, when complainant’s friend Mr. Ashish Mishra i.e. actual purchaser/user opened the mobile handset the next day on 11.10.2016, he found the instrument to be damaged/ defective and immediately called up the OP1 and OP2 customer care and wrote an e-mail on 13.10.2016 apprising OP1 and OP2 of damaged power button of the handset alongwith photographs thereof asking for replacement of the handset. OP1 and OP2 vide reply e-mail dated 13.10.2016 asked the purchaser to approach and contact OP3 directly regarding warranty issue and send a summary or DOA letter of the correspondence with OP3. The purchaser vide e-mail dated 15.10.2016 to the MD of OP1 and OP2 express his grievance about the defective handset having being sent and then not being replaced by the customer care thereby seeking refund of the cost thereof and to promptly act on his complaint. OP1 and OP2 vide response e-mail dated 18.10.2016 though one Ms. Sudipa on behalf of MD, informed the purchaser of having created a replacement order of the subject mobile which shall be shipped after being picked up from the delivery address and the same and returned to OP1 and OP2 Fulfillment Centre. The purchaser was also intimated that the subject handset shall be picked up on 19.10.2016 between 02:00PM - 05:00PM. The purchaser vide response e-mail dated 18.10.2016 asked for arranging transmission of new handset at the time of replacement / exchange. The purchaser has submitted that on 19.10.2016, a representative of OP1 and OP2 gave a call on his mobile between 08:00AM- 08:30AM to collect the defective handset but when the complainant asked for acknowledgement in lieu of handing over of the handset, the reverse pickup person declined to give any such acknowledgement receipt and therefore complainant refused to handover the handset. Thereafter, the purchaser received an e-mail dated 21.10.2016 from OP1 and OP2’s Executive Customer Relations apprising the complainant of having no option of instant exchange of order and that since the returned pickup has got cancelled, asking the complainant for rearrangement of the same on any other date. The purchaser issued a personal notice to OP1 and OP2 dated 21.10.2016 expressing his grievance compelling him to approach consumer court and as a last resort was constrained to file present complaint before this Forum praying for issuance of directions against the OPs to replace the unused handset with a new one and pay a sum of Rs. 80,000/- towards compensation for physical strain and mental agony and Rs. 5,000/- towards cost of litigation.

Complainant has attached copy of invoice dated 05.10.2016 issued by OP1 and OP2 towards purchase of the handset, copy of e-mail dated 06.10.2016 by OP1 and OP2 to the purchaser confirming shipping of the subject handset, copy of e-mail correspondence exchanged between purchaser and OP1 and OP2 in October 2016 regarding defective handset seeking replacement thereof and reverse pickup issue and copy of personal notice dated 21.10.2016 issued by purchaser to OP1 and OP2 alongwith postal receipts.

2. Notice was issued to the all the OPs. Amended Memo of Parties for impleading Motorola Mobility India Pvt Ltd instead of earlier impleaded Motorola Solution India Pvt Ltd as OP3 was filed by the complainant. The same was allowed and notice were issued which was served on it on 15.06.2017 despite which it failed to appear and was therefore proceeded ex-parte vide order dated 21.07.2017. OP1 and OP2 entered appearance and filed written statement in which they took the preliminary objection that they neither sell nor offer to sell any product(s) and merely provides an online market place where independent third party sellers can list their products for sale who are themselves responsible for their respective listing and products on website and not OPs which does not intervene or influence any customer and is not involved in the sale transaction between customer and seller but acts as a mere facilitator and therefore cannot be a party to or control in any manner any sale transaction on its website. The contract of sale of products on its website is strictly a bipartite contract between customer and seller with well defined Terms and Conditions with regard to Usage and Sale on the website of OPs. OPs contended that complainant did not fall within the definition of consumer under Section 2 (1)(d) of Consumer Protection Act as he had not bought any goods from OPs nor paid any consideration thereto. On the contrary it was one Mr. Ashish Mishra who had purchased the product from any independent third party seller selling its products on OPs website and OPs therefore are neither necessary nor proper party to the present complaint; even otherwise an MD of a party cannot be impleaded in personal capacity in a complaint and therefore urged that the complaint is bad for misjoinder of parties. OPs also resisted the complaint on ground that the complainant, by virtue of accessing its website had agreed to be bound by the terms contained in “Condition of Use” interalia clause 3 E-Platform for communication agreeing that OP1 and OP2 is only a facilitator and clause 13 Disclaimer of accessing the website at his own risk and to his best and prudent judgment before entering into any transaction through it. The OPs raised objection to the complainant not having impleaded M/s Green Mobiles, seller of the subject mobile in question which is a necessary and proper party and urged for dismissal of the complaint for non-joinder of proper party. OPs further urged that the complainant has not arraigned the actual purchaser of the mobile in question as complainant in the present complaint on which ground alone the complaint is liable to be dismissed and further contended that the present complaint does not raise any “Consumer Dispute” in such circumstances. OPs submitted in their defence that when Mr. Ashish Mishra, the purchaser contacted the Customer Service Cell of OP1 alleging defect in the subject mobile, he was advised to get a ‘Dead on Arrival’ letter from the manufacturer (OP3) for replacement of the said product but when the purchaser failed to do so and contacted OPs again on 18.10.2016, a replacement of the product was created as an exception and the same was duly informed to the customer that a delivery associate would reach the original delivery location for pickup on scheduled time and date and to keep the package ready for return. However, when the delivery agent of OPs reached the said location on the scheduled date and time, the purchaser asked him to come later as the package was not ready and in the interim asked OP1 for an instant exchange of the product to be effected at the time of pickup of the original product which was refused by OPs as instant exchange facility of the product was against their policy and that replacement order only be shipped once original reaches Amazon Fulfillment Centre, via reply e-mail after which the customer / purchaser did not contact OP1 again for rescheduling pickup and as such the said pickup was not completed and closed with remarks ‘Refused by Customer’ and as a result the replacement order was also cancelled. Lastly, OPs submitted that as a matter of practice, a refund/replacement slip is issued in lieu of the returned product as well as tracking ID is generated for tracking the return of original order and replacement thereof. However neither the purchaser nor the complainant ever informed the OPs about this issue pertaining to the alleged non issuance of acknowledgement by the delivery associate nor did either of them ask for re-arrangement of the said pickup of the original product which story is an afterthought and a concocted one to impute allegation on the OPs. OPs submitted that they had duly replied to the notice of the complainant vide response dated 07.11.2016 through their counsel. In view of the defence taken in the written statement, OPs urged for dismissal of the complaint. OPs has filed copy of Conditions of Use of its website alongwith copy of reply dated 07.11.2016 to the notice of complainant.
3. Rejoinder to the written statement of OPs was filed by the complainant in rebuttal to the defence taken in the written statement in which the purchaser through complainant urged that the bill generated by OPs depicted their company Logo in prominence in size and the name of the seller was reduced to a particle depiction meaning thereby that the seller was an ancillary unit of OPs and therefore OPs had the sole and principal liability with regard to the complainant. In so far as the address issue and maintainability of the complaint i.e. locus of the complainant to file the same is concerned, the purchaser contended that he had used the complainant’s address as his name c/o complainant’s name and his address but the bill raised by the OPs did not cover the name of the actual purchaser but just depicted complainant’s name as c/o due to sole negligence of OPs and they cannot be allowed to disown its liability on pretext of complainant not having impleaded Green Mobiles as necessary party or passing on the liability to OP3 in the alternate. Complainant alleged that the OPs has fleeced the complainant of his hard earned money and is riding on the sum of Rs. 8,999/- of an absolutely unused handset for which when replacement process of initiated in October 2016, the delivery agent of OP1 and OP2 refused to give any acknowledgment or take any signature for reverse pickup and therefore complainant was compelled to refuse replacement of the same and all efforts to convince the OPs for acknowledgment in return of advancing defective handset went in vain despite their policy of replacement of defective handset within period of 10 days of delivery as per their website and also as per response dated 07.11.2016 to the purchaser notice dated 21.10.2016 and therefore inaction on the part of OPs was not justifiable compelling the complainant to seek legal recourse by way of the present complaint which the complainant was compelled to file and undergo the ordeal because of the OPs having failed to take care of making the invoice in the name of the actual purchaser Mr. Ashish Mishra instead of the complainant.
4. Evidence by way of affidavit was filed by the complainant exhibiting the documents placed on record and filed certificate under section 65B of Indian Evidence Act in support of e-mails placed on record
5. Evidence by way of affidavit was filed by the OPs through its AR exhibiting the documents relied upon as Exhibit RW1/1 to Ex-RW1/3.
6. Written arguments were filed by both the parties in reassertion / reiteration of their respective grievance/ defence.
7. OPs filed judgment compilation and copy of FEMA Notification No. FEMA.387/2017-RB dated 09.03.2017 issued by RBI For EX Department highlighting Market Place Model of E-Commerce under which it falls by which it provides an Information Technology Platform on a Digital and Electronic Network to act as a facilitator between buyer and seller and any warranty / guarantee of goods and services sold will be responsibility of the seller.
8. During the course of oral arguments OPs laid emphasis on judgment of Hon'ble Delhi SCDRC in Vinay Narain Vs LG Electronics in complaint no. 270/2010 passed on 21.05.2015 whereby Hon'ble SCDRC held that Rediff.com being an online shopping platform acts as a venue for sellers to create their own online shopping stores facilitating buyers to shop for products and services and has nothing to do with quality of product or warranty period and therefore not a necessary or proper party.

The moot question for consideration to adjudicate the present complaint is whether the OPs were deficient in service in not replacing the defective mobile phone within the stipulated return policy period as per Terms and Conditions displayed on their website and not giving any acknowledgement replacement thereof due to which the complainant / purchaser could not handover the mobile phone to the delivery executive of the OPs since it is the main grievance of the complainant made out in the present complaint.In this regard, two pertinent questions were put to the purchaser by this Forum Firstly, since all e-mails correspondence were strictly between him and OP1 and OP2 as to why no e-mail was ever written by him to OPs after 19.10.2016 till the last e-mail by OPs on 21.10.2016 regarding non-issuance of acknowledgment slip or allege refusal by the delivery agent of OPs to give the same on 19.10.2016 i.e. the scheduled date for reverse pickup of the mobile in question when the parties were regularly corresponding through e-mail from 13.10.2016 till 18.10.2016 and secondly, why purchaser did not respond to last e-mail dated 21.10.2016of OPs wherein the OPs had intimated about their company policy of no instant exchange of order unless the original reaches its fulfillment centre asking the purchaser for re-arrangement of return pickup on another date since the previous one dated 19.10.2016 had got cancelled. Neither the purchaser nor the complainant could come forth with any cogent or satisfactory reply to either of the queries put forth by this Forum except an evasive statement that since there was no acknowledgement slip issued on the previous occasion by OPs, they assumed that no acknowledgement would be given next time around too. We do not find force in such a lame plea and clearly and evidently, this ground of non issuance of acknowledgment slip does not find any mention in any of the correspondence between purchaser and OPs i.e. the personal notice issued by purchaser dated 21.10.2016 to OPs also only speaks about non replacement of defective handset and non performance by OPs to that effect and reply thereto by OPs dated 07.11.2016 is also limited in defence to purchaser having declined the offer of replacement by not returning the product constraining OPs to rescind its replacement offer dated 18.10.2016 and is completely silent of any acknowledgment slip issue.

After having given our anxious consideration to the material placed on record, we are of the considered view that the allegation leveled by the complainant of non-issuance of acknowledgment slip by delivery boy of OPs forcing him not to return the subject mobile is nothing but an afterthought as there are no e-mails or any written grievance made to the OPs to that effect either in the legal notice or any e-mail post rejection of replacement on 19.10.2016 but finds mention for the first time in the complaint filed in December 2016. We are therefore not convinced with the complaint and the allegations made therein pertaining to deficiency of service against OPs are motivated in nature and find the same devoid of merits and dismiss the same with no order as to costs.

9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on 30.10.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member