i) Ex.Cw1/A – Affidavit by the complainant deposing the contents of her compliant and also the sanctity of his evidentiary documents;
ii) Ex.C1 – Copy of the Invoice dated 12.05.2021 for Rs.380/-.
iii) Ex.C2 to Ex.C6 – Copies of the e-mails exchanged between the parties.
iv) Rejoinder to the OP1 Reply filed 03.12.2021 with Ex.C7 (Amazon.in Policy) and Ex.C8 (Product – as exhibited on the Amazon Site).
3. The titled opposite party 1 Amazon, in response to the commission’s summons appeared through their counsel and filed the written reply whereas the OP2 Vendor stayed absent and was ordered on 29.04.2022 to be proceeded against ex-part-e. The OP1 in its written reply has stated therein its preliminary as well as other objections (on merits) as:
At its very introductory, the OP1 states to be deemed as having denied/disputed all statements, allegations, averments and submissions contained in the complaint except the ones specifically admitted. Then proceeds narration of 'brief-facts' comprised in the first 'ten' paragraphs of its preliminary submissions. (Sic!). And, the next 'eleven' detail-out the 'brief' about its own-self (the OP1). We have duly seen and noted the contents of these 21 paragraphs and shall be reproducing/ referring these to in our present orders as when and wheresoever we find it necessary. Next, the OP1 refers to section 2(1)(w) of the I.T. Act' 2K that defines an e-commerce market place as an 'intermediary' for display of their products by many of the Third Party Sellers and subsequent purchase by as many Buyers. And, by virtue of Section 79 of the Act they (the OP1) cannot be held liable for the 3rd Party Content on its e-commerce site. Further, the contract of 'Sale' being between the Seller (the OP2) and the Buyer (the Complainant) the Intermediary (the OP1) cannot be held responsible/ liable being not a party to the Sale-Contract. The matter whatsoever has been an inter-Se issue between the complainant and the OP2 Vendor whereas the OP1 has been unnecessarily dragged into the present proceedings sans an application of mind. The OP1 pleads that the complainant has never been their 'consumer' as per the definition put forth in the CPA Act' 2019; that prescribes 'buying of goods' and/or 'availing of services' for consideration but not for commercial purposes. Again, on merits (para-wise reply), the OP1 has vehemently denied the contents of the first four paragraphs addressing these as 'wrong' except those being matter of records. Further, the product was delivered on 18th May' 2021 but the complainant had raised grievance after closure of the 'return-window' at their end. However, the OP1 (sans liability) had even offered full refund but the complainant had insisted upon delivery of the original product as per her orders. Lastly, the OP1 has placed senior court judgments to support its prosecution of defense. Finally, denying all allegations the OP1 re-addressing itself as an intermediary and neither being a relevant nor a necessary party to the lis has prayed for deletion of its name from the array of opposite parties and/or complaint's dismissal at least against its name (the OP1).
4. The OP1 (e-commerce market place) have also produced the listed documents in order to strengthen its prosecution of defense as:
i) Ex.OP1w/1A – Affidavit by Ms. Swati Agarwal OP1's Senior Corporate Counsel;
ii) Ex.OP1/1 – Authority (13.08.2018) to Ms. Swati Agarwal to prosecute OP1 defense;
iii) Ex.OP1/2 – Amazon Co. Resolution 22.09.2014 Appointment of Director Legal;
iv) Ex.OP1/3 – Amazon Co.'s 'Conditions of Use' – Help & Customer Service;
v) Ex.OP1/4 – RBI (24.11.2009) on Opening/Operation/Settlement of Accounts etc.
vi) Written Arguments (16.06.2022) have been duly placed on records by the learned counsel for the OP1 Co. re-addressing/re-drawing the salient features of its Reply.
5. We have examined the available documents/evidence on the records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference on account of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsel/representative for the respective litigants. We find that the present dispute has arisen on account of the impugned but admitted ‘delivery’ of one wrong product totally different to that ordered by the complainant. It is not understood as to how a Rice Bowl (in dirty condition) can be delivered unintentionally, by mistake, in place of one Fold-able Lap Top Wooden Desk for Bed (Black) and how can Amazon afford to get it delivered at Gurdaspur just for @ Rs.380/- through a vendor based at Surat (Gujrat). However, the Amazon services have failed to make it feasible through its participating vendor. People buy products displayed on the Amazon Site in the good name of the Amazon and not in the name of the vendors/sellers displaying their products at the Amazon Site. Moreover, many of the products are highlighted as 'Amazon-Choice/Standard/Express Free Delivery by Amazon/No Interest EMI/ EMI & many other offers of concessions/facilities/discounts' as at the Amazon Site. The Buyers at the Amazon Site truly fall under the statutory definition of 'Consumer' as they all pay way of 'cuts' from the product/services invoice values' paid by them.
6. We are certainly not convinced with the basics of the OP pleadings and find them unsustainable as these proceed on the wrong understanding of law and facts. On the issue of e-commerce as an 'Intermediary' we have refreshed the applicable provisions of the IT Act' 2K and have also respectfully mulled over the Senior Court Judgments as quoted and placed forth on records by the OP1 Intermediary Site who somehow does not get much benefited. In Suit (L) No. 696 of 2015 Notice of Motion (L) No.2049 of 2015 titled e-bay India Pvt. Ltd. (Applicant) in the matter of: Faber-Castell Aktiengesellschaft & Anr. vs. Cello Pens Pvt. Ltd. & Anr., the honorable High Court of Judicature at Bombay has ruled out that the goods in question were only exchanged through the services of the applicant/2nd defendant between the plaintiff and the defendants and no relief was also sought against them being intermediary only within the meaning of IT Act, 2k. But, here the OP1 have been much worse so as not to fall under the definition of Intermediary U/IT Act, 2k as they have been an accomplice of the OP2 Vendor not only in the employ of 'unfair trade practices' but also in the act of 'unscrupulous exploitation' of the unaware consumers in countless but certainly in good number. The OP1 are admittedly guilty of allowing all sellers to display their products on their site for the consumers' purchase. They admittedly do not exercise any discretion/discipline/control neither in their selection nor in their dealings/transactions with the buyers/consumers. We admire and appreciate the courage/conviction/consistency exhibited by the present complainant and her University Professor Spouse who have jointly held fort otherwise most of the consumers 'bear' the loss in silence for shyness cum ambiguity of triviality of issue and the amount, in transaction. It is for the conviction of legal/preferred right/common cause and not the money for which the few brave among-st us struggle.
7. Further, while respectfully bowing to the honorable Apex Court Orders in CA # 5759 of 2005: M/s SGS India Ltd. Vs. Dolphin Int. Ltd.; we are of the considered opinion that these orders have no relevancy with the proposition in hand.
8. Lastly, coming to the issue of the ONP (onus/burden of proof) we find that the complainant has successfully discharged his initial ONP by way of infringement of his consumer right/deficiency in service at the OP end vide delivery of 'wrong' product – Rice Bowl (in dirty order) in place of the Laptop Wooden Stand – as has been duly admitted by both the opposite parties. Further, the OP1 has admitted vide its reply that all sellers can display their products at its Site for purchase by the Buyers that duly implies an inherent deficiency in service and also being accomplice in employ of 'unfair trade practices' with all such vendors who by now have 'unscrupulously exploited' an uncounted number of unaware consumers, in thousands may be more, and that attracts adverse statutory awards to both the opposite parties.
9. We observe that the OP1's other trivial objections are ambiguous and no more that petty queries in non-fidelity/ignorance and have been well responded by the complainant in his rejoinder to their written reply. The OP1 have also omitted/ ignored to produce some cogent evidence in support of their allegations that otherwise are no more than bald statements. The OP did mention of the terms of the applicable policy but did not produce any evidence of communicating of the same to the complainant. We have observed many such petty anomalies mentioning of which shall not serve good purpose, at this stage. The facts in issue need be appreciated while awarding sanctity to the current applicable law. So we move ahead with furtherance.
10. In the light of the all above, we party allow the complaint and order the OP1 Amazon Co. to arrange delivery of the product as ordered by the complainant through the OP2 Vendor or any of its other vendors besides paying her Rs.5,000/- as compensation for having caused her harassment on account of delivery of totally different product that that ordered and delay cum physical harassment to her Professor Spouse and wasting of his valuable time non-productively that cannot be compensated in terms of money and also to pay another Rs.5,000/- as cost of litigation etc.
11. We also find during the present proceedings that the titled opposite parties being accomplices in the unfair trade practice have unscrupulously exploited an unknown uncounted number of consumers and are thus liable to punitive damages and thus we order the titled opposite parties to deposit a sum of Rs.10,000/- in the District consumer Legal Aid A/c. The awardees are further ordered to ensure/afford compliance to all our above orders within 45 days of the receipt of the certified copies of these orders otherwise an additional interest @ 9% PA shall get attracted on the aggregated awarded amount from the date of filing of the present complaint till the payment stands made, in full.
12. The office superintendent is hereby directed to keep track of the compliance of the commission orders and to report back the then status as on 01.09.2022.
13. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
14. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (B.S.Matharu)
JUNE 24, 2022. Member.
YP.
