Date of Filing: 09-09-2016 Date of Final Order: 22-11-2016
Sri Debangshu Bhattacharjee, Member.
Brief facts of Case:
Smt Kalpana Barman & Mr Tapan barman filed consumer complaint under section 12 of the Consumer Protection Act, 1986 pleading therein that complainants purchased a Harmonium from Amazon website (Op-No-1). It is pleaded that order was placed on 14/05/20116 vide order Number 404-9014497-8764353and the package was delivered to the complainant No-1 on 18/05/2016 but it was found that product was defective. It is further pleaded that matter was reported to Amazon by way of Email on 21/07/2016. It is further pleaded that after making emails Amazon told the complainant No-2 on 23/07/2016 to make contact with the Calcutta Musical Depot (O.P-No-2), Manufacturer of the product. But the complainants never contact with the O.P-No-2.
Hence, the Complainants filed this case praying for refund of Rs.40,000/-, Rs.1,00,000/- as compensation for negligence and deficiency in service by the Ops, Rs.30,000/- for mental pain agony and Rs.15,000/- for litigation cost.
Per contra, version filed on behalf of opposite party No.1 Amazon seller services private limited pleaded therein that entity operating the URL www.amazon.in is Amazon Seller Services Private Limited. It is pleaded that ASSPL neither sells nor offers to sell any product and merely provides a market place and acts as facilitator only. It is pleaded that third party sellers are responsible and ASSPL is not responsible. It is pleaded that ASSPL is not involved in the sale transaction between customer and seller. It is pleaded that complainants have not paid any consideration amount to ASSPL. It is pleaded that seller in the present case is Calcutta Musical Dept. who is a co-party. It is pleaded that there is no privity of contract between the opposite party No.1 and the complainants. It is further pleaded that complainants have placed the order from the website of opposite party No.1. It is further pleaded that opposite party No.1 is simply a facilitator and not seller/ manufacturer. The OP No.1 prayed for dismissal of the case with cost. . The case against the Opposite party Nos.2 &3 proceeded ex-parte as they did not appear before this District Forum despite of service of notice and did not file any version.
Both the complainants and OP-No-1 participate in the hearing of argument. The ld Agent of the OP No-1 has not filed the written argument and verbally prays for treating his written version as written argument.
On the basis of above versions of both parties, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainants are Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service, as alleged by the Complainants?
- Whether the Complainants are entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point Nos.1.
The Ld. Agent for the Complainants submits that Complainants are a consumer under the Ops as defined under Section 2(1) (d) (ii) of the C.P. Act, 1986 as the Complainants deposited a sum of Rs.40, 000/- through the OP No.1 to Op No- 2 for purchase a product on certain terms and conditions. The O.P-3 delivered the Item to the complainants house at Mathabhanga, Coochbehar and the Ops have deficiency in service. In reply, the Ld. Agent for the OP No.1 submits that the Complainants are not a consumer under the OP No.1 and OP No.1 has had no nexus with ASSPL. On perusal of the complaint petition, w/v, documents, evidence and on a careful consideration over the submission of both sides, this Forum is of the opinion that the Complainants are a consumer under the OPs in the light of provision under Section 2(1) (d)(ii) of the C.P. Act, 1986.
Point Nos.2.
The Ld. Agent for the Complainants submits that this Forum has ample jurisdiction to entertain the complaint as the address of the OP-No.3 is within the territorial jurisdiction of this Forum and cause of action also arose within territorial jurisdiction of this forum and the claimed amount is also within the pecuniary limit of the District Forum. On a careful consideration, we are of the view that this Forum has both pecuniary and territorial jurisdiction to entertain the complaint.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The refund policy of ASSPL is “you may return most new, unopened items sold and fulfilled by Amazon within 30 days of delivery for a full refund. During the holidays, items shipped by Amazon between November 1st and December 31st can be returned until January 31st. usually in about 2-3 weeks” The complainant-No-2 purchased the product on 14/05/2016. The item was delivered to the complainant-No-1 on 18/05/2016. There after the complainant-No-2 wrote a letter to ASSPL on 21/07/2016 which is after 65 days of receiving the item.
The complainants stated that immediately after receiving the product she realized that the product is defective but the complainants did not describe the actual defect of the product by which we can understand whether the defect was manufacturing or take place in some other way. In the complaint petition, evidence on affidavit or in the written argument the complainants made no whisper about the deficiency of O.P-No-3 who delivered the item to the complainant No-1. So, it may be safely stated that the undamaged product was received by the complainant No-1.
In response to the letter to the OP-1 by the complainant No-2, the OP-1 replied to the complainant on 23/07/2016 by stating the entire facts and circumstances. In the same letter the O.P-1 requested the complainant No-2 to make contact with the original seller of the product i.e Calcutta Musical Depot (O.P-2) and the O.P-1 forwarded the complainant of the complainant No-2 to the O.P-2 but the complainant No-2 made no correspondence with the O.P-2.
It was pleaded that opposite party No. 1 had done ASSPL works only as a mediator between the consumer and the seller/dealer and that opposite party No. 1 itself does not sell any product directly or indirectly and it is not bound by any warranty or the conditions of sale. (Annexure-)The complainants fail to file any guarantee card or other document which condemn the claim of O.P-No-1.
The forum observes that in the e-commerce market in India competitors like FlipKart, Snap Deal, Amazon, eBay, Shop Clues, Yebhi, jungle.com, rediff.com, indiatimes.com etc. are also operating and the e- commerce market flourish on the basis of their deals. The liability of this e- marketing platform cannot be ruled out, but the purchaser should point out the problem faced by Him/Her immediately or within the period of replacement after receiving a defective product. Considering these facts. ASSPL prima facie cannot be termed as a dominant player in this case.
We are of the considered view that the Complainants have failed to establish unfair trade practice and deficiency in service against the O.Ps. The complainants have also not been able to establish that the product was defective and they informed the seller, manufacturer or the e-marketing agency within stipulated period or at least within a reasonable period. We think that the Complainants are not entitled to get any relief in this case.
In the result, the complaint case fails.
Hence,
It is Ordered,
That the complaint case be and the same is hereby dismissed on contest against the O.P. No.1 without cost and dismissed ex-parte against the rest without cost.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
