ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under Section 12 of the Consumer Protection Act, 1986 praying this Commission to direct OP to refund the value of the gold chain for sending a wrong product along with interest at 12% per annum and Rs.1,00,000/- as damages for mental agony and practicing unfair trade and Rs.10,000/- towards litigation expenses and such other reliefs as the Hon’ble District Commission deems fit and under circumstances.

2.     The brief facts of the complaint are that, OP No.1 operates as online shopping website and OP.No.2 is its courier /logistic partner.  The complainant placed order to purchase one Yellow Gold Chain Necklace ORRA 22K (916) with OP.No.1 on 27.04.2017 at 2.33 pm. The said order was confirmed by OP.No.1 and the same was shipped to his address on 03.05.2017 through OP.No.2. The same was delivered on 06.05.2017 at 11.00 am. After receiving the same and opening the same he found that the product supplied was completely of different design and of poor quality against the order placed.  OP.No.1 has cheated him by supplying a wrong product. He raised an issue with OP.No.1 at 6.27 pm on 06.05.2017 demanding for arranging to take back the said product and to pay the amount.  On 11.05.2017 an agent from OP.No.1 came to his house to pickup the product. He inspected the same and took back the same by providing an acknowledgement and also assured that the refund will be processed within 5 working business days. 

3.     Inspite of it, the amount was not refunded. Many emails were exchanged inspite of it O.P.no.1 has not responded nor refunded the amount which amounts to unfair trade practice and also supplying a wrong product other than the one ordered amounts to deficiency in service.  Hence the complaint.

4.     Upon service of notice, OP.No.1 appeared before the Commission and filed its version. Whereas, OP.No.2 even though served remained absent and hence placed exparte.

5.     In the version filed by OP No.1 it is contended that it only provides platform on online market place were independent third party suggest the list of their products for sale.   They neither sell nor offer any products. The seller themselves are responsible for respective listing and their products on their website. This O.P is neither responsible for the product that are listed in the website nor does it interfering and influence any customer in any manner. It has not involved in sales transaction.  The condition relating to the customer using its website specifically agreed that the O.P is only a facilitator and cannot be a party to or control in any manner any sale transaction on its website. It has denied each and every allegations made against it in the allegation.  It is contended that the complainant is not a consumer. Since it is only a service provider and as the complainant has booked an order for ORRA 22K (916) Yellow Gold chain Necklace, the same was supplied.  There is no cause of action against it and it has been unnecessarily and wrongly arrayed as party. No claim can be claimed against it.  It has denied the allegation that the customers service team AMAZON  has not provided any help. It has refunded back the complainant’s amount. It is admitted by the complainant himself and the same was also communicated to the complaint on his contact with customer service team. The refund has been made from nodal account managed by designated department as per RBI guidelines. The nodal account facilitate collection and deposit of funds from buyer to be credited to the sellers account/refunded back to the buyer as per the regulatory process for ecommerce transaction. There is no amount pending with them in respect of the complainant.  All the three transactions were reversed as provided by reference number.  Any issue regarding non-receipt of the refund is with the concerned bank and not with this O.P and hence prayed to dismiss the complaint.

6.     In order to prove the case, Complainant and OP are filed their  affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1:    In the Affirmative

POINT NO.2:    Partly in the affirmative.

                        For the following.

REASONS

POINT No.1:-

8.     Both parties have filed their affidavit evidence and the documents. We have perused the same and also the complaint and version. It is an admitted fact that the complainant booked an order for yellow gold chain necklace ORRA 22 K(916) with OP.No.1 on 27.04.2017 at 2.33 pm which was supplied through OP.No.2. It is also not in dispute that, according to the complainant the said product was a wrong product then the one for which he had ordered, and the same was taken back. The email correspondences clearly shows that it was taken back. Further the email correspondences and the SMS exchanged clearly shows that the refund would be initiated. When such being the case, now OP.No.1 cannot say at this point of time that an imitated product was sent back to the seller and same was found on an enquiry. If that was so, he could have got it produced the product which it had sold to the complainant by getting an order from this Forum and also should have produced the product which it has received on return and try to prove the allegation that an imitated product was sent by the complainant and also the allegation made by it that, the complainant is in the habit of placing order for more products and after receiving the benefits and discounts used to return the said products.

9.     If at all such in the case, he is at liberty to take criminal action against the complainant. In the absence of the same this forum cannot hold that an imitated product was sent back to OP. If at all the contention of OP.No1 that an imitated product was sent back, than the original one the ORRA jewellary shop to appear before this forum and OP.No.1 could have asked him could have appeared before this forum to substantiate the stand that an imitated jewellary was returned than the original one.

10.   In view of the SMS correspondences, it becomes clear that the product sent to the complainant was taken back by OP.No.1 and assured to refund the amount within 5 business days and inspite of it has not refunded the same which amounts to unfair trade practice and also unethical and unfair trade practice. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT No.2:

11.   A sum of Rs.1,14,069/- has been received by OP.No.1 after the confirmation of the order for the product i.e. Yellow Gold Chain Necklace sold by ORRA Jewellary and the amount has been remitted to the said jewellary by OP.No.1. Since OP.No.1 has undertaken to refund the amount and initiated the process, it is bound to refund the amount. Inspite of email correspondences and demands, OP.No.1 has not refunded the same. Hence we are of the opinion that the same is liable to be refunded to the complainant along with interest at 12% per annum from the date of return of the product i.e. 11.05.2017 till the payment of the entire amount and further the act of OP.No.1 in not refunding the amount put the complainant into mental agony, stress  and hardship for which OP.No.1 to pay Rs.10,000/- towards damages and Rs.5,000/- towards costs of the litigation expenses. Since OP No.2 is only a logistic transporter, no liability can be fastned on it. Hence complaint against OP.No.2 is hereby dismissed. Hence, we answer POINT NO 2 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1.  The Complaint is partly allowed with cost.
2. The O.P. No.1 i.e. Amazon represented by its Authorized Signatory is hereby directed to pay a sum of Rs.1,14,069/- along with interest at the rate of 12% per annum from 11.05.2017 the day on which the said amount was credited to the account of O.P.No.1 till realization of the full amount to the complainant. It can realize the same from the manufacturer/seller of the jewellary. If it has not yet obtained or it was sent to it.
3.  Further O.P.No.1 is hereby directed to pay a sum of Rs.10,000/- towards compensation and Rs.5,000/- towards cost of litigation expenses.
4. Complaint against O.P.No.2 is hereby dismissed.
5. The OP.No.1 is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 9^th day of February 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Bank statement of complainant.

Ex P2: Copy of the order confirmation email.

Ex. P3: Copy of the Order for shipment confirmation.

Ex P4: Copy of order out for delivery confirmation.

Ex P5: Copy of delivered confirmation.

Ex P6: Copy of return request registration confirmation.

Ex P7: Copy of return request accepted.

Ex P8: Copy of Reschedule of pickup sent by OP-1.

Ex P9: Acknowledgement and confirmation.

Ex P10: Copy of OP1 acknowledgment

Ex P11: Copy of delivery of picket wrong product.

Ex P12: Copy of notice sent to OPNo.1

Ex P13: Copy of India Post receipt of the notice.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Rahul Sundaram, Senior Corporate Counsel of OP

Copies of Documents produced on behalf of Opposite Party/s

Ex R1:Original Authorization letter given to M.Naveen Kumar for adducing evidence.

Ex R2: Copy of the condition of use.

Ex R3: Copy of the authority letter given to Rahul  Sundaram for filing version.

MEMBER                        PRESIDENT

RAK*