Counsel for the parties:

For the complainant: Sri Sanjeeb Kumar Satpathy,Advocate

For O.P No.1: Sri  Vikas Chopra & Kunal Kumar Behera, Advocate

For the OP No.2 & : Exparte.

                                                                 JUDGMENT

                        The facts of the complaint  in brief is that,   on dt.30.09.2017 the complainant has purchased  3 Nos. of item  i.e. Phillips Beard Trimmer, Reebok Men’s Shoes and Moto G5 Plus Lunar Grey,65GB mobile through online from the OP No.1  for an amount of s.20,398/- vide Order No.#171-655017-8681135 on EMI mode.  The petitioner has received two items  i.e.  Phillips Beard Trimmer and Reebok Men’s Shoes  except  Moto G5s Plus and the cost of which is 15,999/- and as such the complainant informed the OP No.1  regarding the non receipt of that item and the OP No.1 assured to deliver the produce  by dt.16.10.2017.  On dt. the OP No.3 – Gati Courier, Rayagada asked the complainant to provide Tracking number of order and assured to deliver the  item shortly. The complainant  again and again contacted the OP No.3  but the OP No.3   did not respond  and the product has not been delivered till date. For the purchasing of the above item the Bank has been deducting the EMI of 2390.97 including the   through Axis Bank Bhawanipatna. In spite of several requests  over phone the OP No.1 & 3  are not taking any step to deliver the said item.  Hence prayed to direct the Ops  to refund the amount of product Rs.15,999/- with interest @ 12% with compensation of Rs.50,000/-.

                        In spite of receipt of notice by this forum the opposite party No.1 only appeared and filed written version and the Opp.Party No.2 & 3 were  remained silent and did not turn of to file any written version and   as such the Opp.Party No.2 & 3 were set exparte .

                        It is submitted by the  Opp.Party No.1 that the complainant has not placed an order for any goods from  OP No.1 nor has the complainant paid any amount. The goods bought by the complainant from the independent third-party seller selling its products on the Website operated by the OP No.1 and as such the complainant does not fall within the definition of consumer.  The OP No.1  merely an online marketplace where independent third party sellers can list their products for sale. The subject matter of dispute is  regarding non-delivery of one Moto G5s Plus Lunar Garey,64 GB purchased on the website from an independent third party seller. The instant complaint is  bad in law and it can not be sustained as the order was marked as delivered on 23^rd October,2017 but the complainant failed to contact the OP No.1 till 12^th November,2017 by that time even the return window for the product had expired and the OP No.1  not in a position to assist the complainant in this regard. The failure to contact  the OP No.1 and attempt to suppress  the significant fact by the complainant clearly shows malafide  on the part of the complainant. Thus this complaint is liable to be dismissed.  

                        It is further submitted by the OP No.1 that they have not given any assurance to deliver the product by October,16,2017. Complainant did not contact the customer service team of the OP NO.1 till November,12,2017 and thereafter on 29^th December,2017  and  the customer service team of the OP No.1 informed the complainant  of their inability to take any action or issue any concessions in this regard as the complainant  had contacted the OP No.1 many days from the date  when the order was marked as delivered to him. No cause of action arises against the OP No.1 and hence the instant complaint is liable to be dismissed against the OP No.1.

                                                                 FINDINGS

                        On perusal and hearing of  the contention, document and arguments of the contesting parties the main point for consideration is :

1.         Whether the complainant is  consumer s per the C.P.Act?

2.         Whether there is any deficiency in service by the Ops ?

3.         Whether the complainant is entitle for the relief claimed  by him and if so against whom?

Issue No.1 & 2

                        The complainant has ordered for three number of article online  from the Opp.Party No.1 which admittedly had been accepted and the complainant has received two number of article  out of three and the complainant has made  the payment in the mode of EMI as agreed upon  by the Opp.Party No.1 through his Credit Card. Sine the complainant has paid the cost of the ordered article but not received one article from the Opp.Party No.1, there is deficiency of service on the Part of the OP s in term of Section 2(g) of C.P.Act and the complainant is a consumer as per Section 2(d)(i) of the C.P.Act.

Issue No.3

            Considering Issue No.3 after thorough perusal of the  material on record we find that   the Amazon Sell and Service Pvt. Ltd.,Darshit Aashiyana Pvt. Ltd and Gati Courier Rayagada had made Opp.Parties in this case out  of which the OP ;No.1 appeared through learned counsel and  contested the case  while the other Ops does not appear and set exparte.

            The Opp.Party No.1 Amazon Sells Service  denied all the allegations of the complainant as discussed earlier. On perusal of the documents(Annexure)filed and relied on by the complainant, Annexure(1) which is issued by the Amazon.in reveals detail of orders, dispatch of article on 1^st October, 31^st September and one order in respect of Phillip Trimmer, Moto G5s mobile and Reebok Mens Shoes respectively. Total invoice was for Rs.20,398/- and the payment  method was by EMI on Master Card last digit of which is 6371.

                        The complainant  as admitted has received two items  they are Trimmer and Shoes but has not received the Moto G5s plus mobile  and the cost of which is Rs.15,999/-. The complainant also relied on by Annexure 2 invoices and Annexure 3- the order detail. The complainant has made many complaint regarding non receipt of the mobile to  which the Opp.Party No.1 did not respond. The Opp.Party No. –Gati Courier who is the Courier  chosen by the Opp. Party No.1 was set exparte. On perusal of the documents  it is  found that two articles admitted  by the complainant to have been.

                        The Opposite Party No.3 -Gati Courier to whom the Opp.Party NO.1 entrusted for delivery of all the article did not deliver the mobile and  in spite of notice by this forum he  choose to remain  absent and failed to substantiate  the delivery of the mobile. So the allegation of the complainant was not disproved by the Opp.Party NO.3. The plea of the Opp.Party No.1  is that he was reported by the complainant regarding non delivery of the mobile when the refund window was closed . We also found that the amount as agreed upon was deducted from the Credit Card of the complainant.

                        From the above finding and material on record we found both the Opp.Party No.1 & 3 are jointly liable for non delivery of the article as alleged by the complainant. But it is  to be considered that it is Opp.Party No.1 who   selected the Courier and  not the complainant. So any negligence of the Courier  who is an agent  , the   Opp.Party NO.1 is liable as prinipal. So we are of the opinion that the Opp.Party No.1 is deficient in Service for non delivery of the mobile. Hence, it is ordered.

                                                                        ORDER

                        The Opp.Party No.1 is directed to refund Rs.15,999/- to the complainant along with compensation of Rs.5,000/- and litigation cost of Rs.2,000/-  within 45 days from the date of receipt of this order, failing which the Opp.Party No.1 is liable to pay 9% interest on the above awarded amount till the date of its payment.

                        Pronounced in open forum today on this 9^th  day of November,2018 under the seal and signature of this forum.

                            Member                                                                   President

Documents relied upon:

By the complainant:

1. Copy of order dt.30.09.2017
2. Copy of Tax Invoice dt.30.09.2017 – 3 Nos.
3. Copy of  Payment Method
4. Copy of Credit Card deduction statement – 9sheets.
5. Copy of Bank Statement – 3 sheets

By the Opp.Party: Nil