DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 3^rd day of July 2020

Present   : Sri.V.P.Anantha Narayanan, Member (President I/c)

               : Smt.Vidya.A, Member                                                       Date of Filing: 07/09/2018

CC No.106/2018

Jinub Joseph,                                                                           -           Complainant

Vattamattathil House,

Kilirani, Karakurussi Post,

Palakkad – 678 595

(By party in person only)

1.  Amazon Seller Service Private Limited,

26/1, 8^th, 9^th and 10^th Floor,

Brigade Gateway, Dr. Rajkumar Road,

Malleshwaram West, Bengaluru,

Karnataka – 560 055

(By Adv.Manoj Ambat)

2.   Rohini Associates,

28/298, KTV Tower,                                                                -           Opposite Parties

Mokkonath Parambu, West Fort Road,

Palakkad – 678 001.

(By Advs.E.Ramachandran & A.A.Abdullah)

O R D E R

By Smt.Vidya.A, Member

Brief facts of the complaint :

The complainant placed an order with the 1^st opposite party to buy an ‘Oppo Realme 1’ mobile phone on 10^th August 2018 by paying an amount of Rs.12,591/-.  The order was confirmed by the 1^st opposite party on the same day itself and a message was received by the complainant on 11^th August 2018, that the package was dispatched and it will be delivered before 18^th August.  The product was ordered to be delivered to the complainant’s official address at Civil Station, Palakkad and on 18^th, the complainant waited at Palakkad till 8.07 pm expecting the delivery.  At 8.07 pm the complainant received an e-mail stating that the order was delayed due to operational issues and the package would be delivered within three business days from the original delivery date.  On 19^th August, the complainant received an SMS stating that the product reached Bangalore and the same would be expected to be delivered between 19-24^thAugust.  Trusting these words of the 1^st opposite party, on 24^th August the complainant travelled from his residence at Mannarkkad to Palakkad (40 Kms) only to receive the product even though it was a public holiday.  But on that day the product was not delivered to him and there was no communication from the 1^st opposite party regarding the delay in delivering the product.  So all his time, effort and travel was of no use.  When the complainant checked his gmail-inbox, he found an e-mail intimating the receipt of the product and asking him to select a rating for the seller, based on his experience.

Then he tried to contact the customer care executive of the 1^st opposite party and it was informed that the transportation person would contact him within 24 hours, but nothing turned out.  He again tried to contact the customer care executive of the 1^st opposite party and on 28^th August an executive of the 1^st opposite party came online and assured that the product had been departed from Amazone facility, Cochin and would be delivered to the complainant on that day itself.  Believing these words, he again travelled from his residence to Palakkad on that day only to receive the product since it was a public holiday, but nothing happened.  According to the complainant, this was the least expected irresponsible action from the part of such reputed organization like the 1^st opposite party.  Then on 29^th August he again contacted customer care of the 1^st opposite party and another executive came online.  When the complainant enquired about the order, the executive informed the complainant that the product was lost in transit and insisted him to give permission for processing the refund as there was no option other than getting a refund.  Even though the complainant was badly in need of a mobile phone and was reluctant to give permission, he was compelled to cancel the order on 29^th August 2018 and after that when he tracked the package, it was seen as the refusal of the order by the complainant from Amazon transportation services, Palakkad.  After that the 1^st opposite party delayed the refund stating that it would be processed only after getting the package back to the seller and it was not received by him till the filing of the complainant. 

According to him, the opposite party acted in a very reckless way as they were not ready to disclose the loss of package even after his repeated enquiries.  The explanation given by the 1^st opposite party that the package was lost in transit cannot be accepted as the shipment details shows that the package reached the Amazon facility, Cochin on 27^th August 2018 and departed from there on the same day.  These acts of the opposite party had caused mental agony to the complainant and further because of these, the complainant was not able to know about his friends and relatives during flood and he lost some festival offers to buy a new mobile phone.  Hence he filed this complaint for getting refund of the paid amount of Rs.12,591/- with interest and for getting an amount of not less than Rs.50,000/- as compensation for mental agony, court expenses and other expenses. 

Complaint was admitted and notice issued to both opposite parties.  Both opposite parties appeared and filed their version. 

The main contentions raised by the 1^st opposite party in their version are. 

According to the 1^st opposite party, M/s.Amazon Seller Services, they are a well reputed company having a large consumer base and manages and operates the website www.amazon.in having its registered office at Bangalore.  As per their contention, they do not sell or offer to sell any product and merely provides an online market place, where independent 3^rd party sellers list their products for sale.  ASSPL is not responsible for the product listed by the 3^rd party seller and they do not influence any customer in any manner.  They are not directly involved in the sale transaction between the customer and the seller and only a facilitator and cannot be a party to control in any manner any sale transaction on the website.  The contract of sale of product on the website is strictly a bipartite contract between the customer and the seller.  Further, the complainant does not come within the definition of “consumer” under the Consumer Protection Act, 1986 as the complainant has not bought any goods from ASSPL and the amount paid by the complainant is against an invoice by the independent 3^rd party seller namely ‘Darshitha Electronics’, the 1^st opposite party has no claim over the said amount and it is not a ‘necessary party’ or ‘proper party’ in the complainant and the complainant has to be dismissed for misjoinder of parties.  In this case, the complainant had placed an order for a mobile phone “Realme 1” on the 1^st opposite party’s website from “Dharshitha Electronics”.  On complainant’s request, the 1^st opposite party’s specialized team enquired about the product in order and provided an update about this to him.  The delivery date mentioned at the time when the order is placed in tentative and it may vary due to various reasons such as climatic condition, traffic congestion, geographic distance, loss in transit, availability of stock of the product with respective sellers etc.

In this case, the weather conditions prevalent at that time made it difficult for the seller to ensure the delivery within the stipulated time and a complete refund had been initiated in favour of the complainant on account of non delivery of product.  The complainant had not made the 3^rd party seller, a party to the complaint.  Further, the 1^st opposite party has provided best possible assistance and protection to the complainant by ensuring full refund and no cause of action survives against the 1^st opposite party and the complainant had been suppressing the fact of refund of the amount to him. The 1^st opposite party is only a facilitator and the product in question is not manufactured or sold by the 1^st opposite party and they are not responsible for any non performance or breach of any contract entered into directly between the complainant and the seller.  The “conditions of use” on the website of the 1^st opposite party states that the 1^st opposite party is not and cannot be a party to or control in any manner, any transaction between the users at the website.  Complainant being a buyer on the website is bound by the terms contained in the ‘conditions of use’.

The complainant had already received the refund even before filing of this complaint and he suppressed the material fact and approached the Forum.  There is no deficiency of service or negligence on the part of the 1^st opposite party as alleged in the complaint.  This Forum has no jurisdiction to try and decide the present complainant as there is no cause of action against the 1^st opposite party and also lacks territorial jurisdiction as the 1^st opposite party has no registered or corporate office or any branch office for doing business within the jurisdiction of this Forum. Further as per condition 22 of the “conditions of use” the Courts at Delhi alone have the jurisdiction to try this complaint.

 The complainant is not entitled to claim any relief from the 1^st opposite party as the complainant has failed to demonstrate any deficiency in service/unfair trade practice on the part of the 1^st opposite party.  Hence the complaint has to be dismissed against the 1^st opposite party. 

The main contentions raised by the 2^nd opposite parties are.

As per the contract between 1^st and 2^nd opposite parties the 2^nd opposite party is only responsible for the delivery of goods.  The product which is alleged to have been purchased by the complainant from the 1^st opposite party has never been dispatched to the 2^nd opposite party for delivery.  So the 2^nd opposite party has no role in the transaction alleged to have been taken place between the complainant and the 1^st opposite party and there is no deficiency of service in their part.  Hence the complaint has to be dismissed against them with cost. 

Complainant and the opposite parties filed affidavits.  From the side of the complainant, Ext.A1 to A6 (A6 in series) were marked and from the 1^st opposite party’s side Ext.B1 marked.  No documents filed from the side of the 2^nd opposite party.  No witness were examined from both sides. 

            The main issues raised in this case for consideration are.

1. Whether the complainant is a consumer of 1^st opposite party under the Consumer Protection Act and whether this Forum has jurisdiction to entertain the matter?
2. Whether there is any deficiency of service on the part of the opposite party?
3. If so, what is the relief as to cost/compensation?

Issues 1 2 & 3

            Heard.

            We have perused the affidavits and other documents filed from both sides.  The 1^st opposite party admits that the complainant had placed an order for a mobile phone ‘Realme 1’ on the 1^st opposite party’s website from ‘Dharshitha Electronics’ and paid an amount of Rs.12,591/-.           The main contentions raised by the 1^st opposite party is that, they merely provide an online market place where independent third party sellers can list their products for sale and the sellers are solely responsible for the listings and sale of products on the website of the 1^st opposite party.  The 1^st opposite party is only a facilitator and the product in question is not manufactured or sold by them and they are not responsible for any non-performance or breach of any contract and the complainant is not a consumer of the 1^st opposite party.  Moreover this Forum has no jurisdiction to decide the complaint for the reason that no cause of action arose in favour of complainant and against the 1^st opposite party and also because the Forum lacks territorial jurisdiction as the 1^st opposite party has no registered or corporate office or any branch office for doing business within the jurisdiction of this Forum. 

            Regarding the contention of the 1^st opposite party that the complainant is not a consumer of the 1^st opposite party, we are of the view that the 1^st opposite party acts as an intermediary to sell the product in their portal by the sellers and the same is being done as per the terms and condition of the 1^st opposite party and the seller for a consideration, hence the complainant is a ‘consumer’ under the ‘Consumer Protection Act’.  Further, it is to be noted that the complainant booked the mobile phone through the site of the 1^st opposite party at Palakkad and it was intended to be delivered to his official address at Palakkad.  So as per Section 11(2)(C) of the Consumer Protection Act 1986, this Forum has territorial jurisdiction to entertain the matter. 

Perused of evidence on record clearly establishes that the 1^st opposite party is not a mere broker or facilitator, but is acting as an agent or representative of the seller.  All the transactions are routed and the contract between the complainant and the seller is concluded through the 1^st opposite party.  Further the delivery of the product was also intended to be through the 1^st opposite party.    Hence the 1^st opposite party is personally answerable for the supply and delivery of products and would also liable for the consequences arising out of breach of contract.

            From Ext.A1, it is clear that the mobile phone is sold by ‘Darshitha Electronics’ which is the 3^rd party seller and fulfilled, by Amazon.  Ext.A2 describes about items ‘fulfilled by Amazon’.  It states that the “items fulfilled by Amazon”, identified by the “a fulfilled” logo indicates that the products are stored, packed and dispatched by Amazon.  Further Amazon handles all customer services of these products. 

            Hence it is clear that being an “item fulfilled by Amazon”, the 1^st opposite party cannot escape from their liability if any deficiency in service occurs from the acts of their customer service.  Further the product in question is dispatched by the 1^st opposite party and it is lost in transit.  Ext.A5 shows that on 27^th August at 6.59 pm the shipment was dispatched from Amazon Facility, Cochin, but it has not reached Palakkad.  Ext.A6 series shows the conversation between the complainant and customer care executives of the 1^st opposite party.  The customer care executives of the 1^st opposite party made the complainant believe that the product will be delivered to him very soon and finally only after his repeated enquiries, they informed him that the product is lost in transit.  Further they insisted him to give permission for processing the refund as the product was lost in transit.  Even though the complainant was badly in need of the product and was reluctant to give permission for refund, he had no option other than to give permission for refunding the amount.  This definitely would have caused mental agony to the complainant who was anxiously waiting for the product and spent his time and effort for travelling from his residence to Palakkad two times which is about 40 kms distance only for receiving the product.  He was not properly informed by the 1^st opposite party about the delay in delivery and loss of the product.  So there is a clear deficiency of service on the part of the 1^st opposite party which had caused mental agony to the complainant. 

            The complainant gave permission to refund the amount on the request made by the customer care executives of the 1^st opposite party, but in Ext.A5 tracking details it is shown as refusal of delivery by customer and cancellation request by the complainant.  This amounts to unfair trade practice on the part of the 1^st opposite party.

            The first prayer in the complaint is for refunding the paid amount of Rs.12,591/- along with interest.  But in his affidavit the complainant admitted that the amount was refunded to his bank account on 3^rd September 2018 and he filed this complaint on 6^th September 2018 without verifying the bank details.  Since the amount paid for the product is refunded to the complainant, there is no need to consider the first prayer in the complaint. 

            Further, the role of the 2^nd opposite party is no where stated in the complaint and no relief is sought against them.  From the 2^nd opposite party’s version, it is clear that they are only responsible for the delivery of products when it reaches their premises.  The product has not been dispatched to the 2^nd opposite party even according to the 1^st opposite party.  So the 2^nd opposite party is exonerated from liability.

            Even though the amount spent by the complainant is refunded to him, the deficiency in service on the part of the 1^st opposite party had caused mental agony to the complainant which is clear from Ext.A6 series for which they had to compensate the complainant.  In the result, the complainant is partly allowed. 

We direct the 1^st opposite party to pay a sum of Rs.2,000/- (Rupees two thousand only) to the complainant as compensation for mental agony suffered by him due to deficiency in service on the part of the 1^st opposite party and Rs.1,000/- (Rupees thousand only) as cost of this proceedings. 

             Order shall be complied within one month from the date of receipt of this order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.  

Pronounced in the open court on this the 3^rd day of July 2020.

                                                                                                                  Sd/-                                                                                                                                                                              V.P.Anantha Narayanan         

                   Member (President I/c)

                                                                                          Sd/-           

                                                                                                  Vidya.A

                            Member

Appendix

Exhibits marked on the side of complainant

Ext.A1  - Copy of the printout of the product details.

Ext.A2 – Copy of the printout of the specifications of Amazon fulfilled items as per the

               website of the 1^st opposite party.

Ext.A3 – Copy of the printout of the message received from the 1^st opposite party dated

               3^rd September 2018.

Ext.A4 – Copy of the printout of the message received from the 1^st opposite party dated

               4^th September 2018.

Ext.A5 – Copy of the printout of the shipment details of the order.

Ext.A6 series – copy of the printout of certain chat details made with the executed of the 1^st

                           opposite party.

Exhibits marked on the side of Opposite parties

Ext.B1 – True copy of the board resolution by the Board of Directors of the 1^st opposite party.

Witness examined on the side of complainant

NIL

Witness examined on the side of opposite parties

NIL

Cost :   Rs.1,000/-