Date of Filing : 18/08/2022

Date of Judgement : 21/08/2024

Shri Manish Deb, Hon’ble Member

The brief fact of the case is that the Petitioner is a self employed runs a sole proprietorship firm namely ‘VASKARYA’ having its registered address at 128/9B Motilal Gupta Road, Kolkata 700008 where from he used to run his online Economic business of selling various metallic and other decorative articles through online selling platforms and it is his only livelihood.

The OP No.1 is a Private Limited Company engaged in the business of running online portal and other services and act as a platform or middleman between other retailers or between sellers and customers.  It provides a platform for the buyers and sellers to easily interact and trade with each other without much hassle or difficulties and used to charge fees for its online services for cataloging and listing of the seller’s products.

Thereafter OP No.2 is a Private Limited Company engaged in providing courier services for transporting goods and materials between the sellers and purchasers using the online services of the OP1 for buying and/or selling products therein and they charges expenses for availing their courier services.

In February 2021 the complainant register his name with the OP No.1 for using their paid online services for listing and selling his products to the perspective buyers who are also using the online application (website) of the OP1 for buying goods.  The OP No.1 raised a bill upon the complainant for a sum of Rs.2,720.13 through its invoice dated 28.02.2021 and the complainant had duly paid the same for availing the online listing of its products and other services of the OP No.1. 

On 13/02/2021 the complainant received an order for supplying a ‘VASKARYA’ Brass Cow Calf Kamdhenu Auspicious Cow/Size 12’ having Order No.406-9725268-9216302,having Gross weight about 5.5 kgs and costing about Rs.9240/-.  Thereafter  the complainant asked the O.P.2.ATS Counter(ATSPL), being the in-house courier company of OP No.1 for shipment of the product from complainant’s place to the buyer’s place at Nellore Andhra Pradesh. 

Accordingly, the subject order was picked up by the courier personnel of OP No.2 on 15/02/2021 having AWB 260916167505 and the package gross weight was around 5.5kgs. a photocopy of the Tax Invoice/Cash Memo dated 13.02.2021 and Airway Bill dated 15.03.2021 of the courier company are annexed herewith for clarification.

On 20/2/2021 the aforesaid order was delivered to the buyer by the delivery person of the OP No.2 and within a short period of time after the aforesaid successful delivery of the product, a return request was lodged by the said buyer before the OP1 stating reason ‘performance or quality is not adequate’ and as per company’s policy the said return request was duly accepted by OP No.1 and the same was also notified to the complainant through notification given in his seller’s account and regarding return policy complainant had no role to play.

That on and from 21/02/2021 the login access of complainant’s seller account with OP No.1 was illegally locked by OP No.1 without any prior intimation or notification to the complainant and the complainant on trying to ‘login’ it was showing that ‘Your Account has been temporarily locked’, without stating any reason at all, therefore, the complainant was unable to make any communication with OP1 regarding the return of the product sold or to see its STATUS or location.

That on 27/02/2021 and also on 01/03/2021, OP No.2 the courier company from Amazon  tried to deliver a shipment measuring about 2 kgs (instead of the actual shipment sent was weighing about 5.5 kgs ) but as the accesses to the Seller’s Account was suspended by OP1, no “Delivery confirmation OTP’ was received by the complainant either on the registered mobile number or on the registered mail ID, and hence the delivery could not be completed and the courier personnel had to return back with the product. The complainant had photographed and video graphed the entire episode of non-delivery and about returning of product of much lesser weight. Immediately thereafter complainant reported the same to OP No.1 and OP No.2 via email, though no reply was tendered by the opposite parties in absolute irresponsible manner.

That from March 2021 till September 2021 the complainant sent several emails, phone calls chats, to the seller’s support team of OP No.1, however not a single reply was given to the complainant’s queries for reason unknown to the complainant and at this cause huge mental torture upon the complainant, who being a small start-up neither get back the costly item sold and dispatched though OP No.1 and OP No.2 nor get the opportunity to sell different items to some other prospective buyers through the Seller’s Account so as to earn his livelihood as the account was blocked absolutely illegally and with malafide intentions, inspite of the fact that the complainant had paid for the listing services of the OP No.1. Be it mentioned that grievances were also lodged before the Grievances & Nodal Officer at OP No.1 but no results or reply whatsoever from said Nodal Officer.

Finding no other option on 05/09/2021, the complainant lodged a complaint before the Department of Consumer’s Affairs Government of India, through its Public Grievance Portal vide Grievance No.DOCAF/E/2021/04103 which was duly acknowledged by Dy.Secretary and the complainant’s grievance was forwarded to Department for Promotion of Industry & Internal Trade & E-Commerce under the Ministry of Commerce for redressal of issues raised.  Thereafter on 16/09/2021 a clarification Notice was issued upon OP No.1 BY THE SAID Department for Promotion of Industry & Internal Trade & E-Commerce.

That immediately after getting that Notice dated 16/09/2021 OP No.1 ‘Unlocked’ the complainant’s Seller’s Account after a gap of 7 months, and on 27/09/2021, the department concern of OP No.1 filed their reply before the Department for Promotion of Industry & Internal Trade & E-Commerce, stating therein some odd and imaginary reasons like “complainant was suspected of seller-buyer collusion’, however, no clarification or evidence were put forward in support of such a fanciful and vague allegation.

After the Account of the complainant was ‘Unlock’, he contacted with the Seller Support team of OP No.1 and requested once again to look into the matter for delivery back of his item, still in the possession of OP No.1 or their courier concern OP No.2 and for which the Seller Support team of OP No.1 advised the complainant to file a Safe T-Claim form was duly filed and submitted by complainant, but till date neither the product of the complainant was returned back nor any compensation to that effect was given to the complainant due to his monetary loss for reasons unknown.  The complainant failed to file the Safe T–Claim from Central website. Firstly the system checks a particular order number against which the seller wants to file a Safe T-Claim.  Thereafter the system let it proceed if it fulfills the eligibility criteria.  Unless the access to the login account of complainant was granted by the OP No.1, how could he be supposed to submit the Safe T-Claim form for his undelivered product or for its compensation.

The complainant finding no other option sends a legal notice upon the OP No.1 dated 14.03.2022 through his Ld Advocate claiming the return of his product and also for compensation for loss of business and mental and physical pain and suffering for no fault on his part. 

After more than two months from the service of legal notice upon the OP No.1 in the month of June 2022 a reply dated 31.05.2022 was served by the Ld Advocate of OP No.1 stating therein that the claim of the complainant could not be settled as the Safe T-Claim form was not submitted within 7 days from the debit date, without considering the fact that the login account of the complainant was forcefully and unlawfully withheld by OP No.1.

That upon receiving the said letter dated 31.05.2022, the complainant through his Ld Advocate, sent a reply dated 14.06.2022 denying all the allegations stated therein and specifically requesting the OP No.1 to consider the fact that as the complainant’s Log in Account with Amazon (Unique Seller I.D. A13HAPWQ7GN98M) was locked by OP No.1 from 21/02/2021 without any reason and for that the complainant could not able to login in his account which was showing “Your Account has been temporarily locked” and as per the system of OP No.1, no one can lodge a complaint with their safe-T claim unless he can login in his Seller Central Account.  No e-mail ID was available for submission of Safe-T claim, in case the seller’s account was locked by OP No.1 and for the similar reason of denial of access to the Seller’s Login Account, the return delivery of complainant’s product could not be obtained from the Seller’s Account itself, hence delivery was not done.

That under the circumstances, petitioner has to come up before the Ld. Commission for necessary redressal of grievances directing against the unfair trade practice of the opposite parties including demurrages and compensation to petitioner due to monetary loss, mental agony and harassment.

That the complainant submitted that complainant’s prayer made should be allowed otherwise complainant would be seriously prejudiced which cannot be compensated by any means.

That the complainant/petitioner prayed to Hon’ble Commission to please pass order to the opposite parties to grant following relief(s): 

 To direct the OPs to return back the item sent by the complainant on 15.02.2021 or to pay its’ price of Rs.9,240/-.

For compensation to the tune of Rs.1,50,000/- for harassing, mental agony, pain and suffering etc.. for deficiency of service and unfair trade practice by the opposite parties for litigation cost of Rs.25,000/-.

POINTS FOR DISCUSSION

Whether complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.

Whether the present complaint is within limitation under Consumer Protection Act, 2019.

Whether the commission has the jurisdiction to decide the present complaint

Whether the opposite party in deficient in providing its services to the complainant.

Is the case is maintainable or not

Is the complainant is entitled to get relief as prayed for.

OBSERVATION

The complainant falls in the category of the “Consumer” under Consumer Protection Act 2019.

It is filed within two years from the date on which the cause of action has arisen.

The main question for consideration before us is whether the opposite parties are deficient in service or not.

Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant and we considered that entitlement of getting relief sought for by the complainant is also affirmative.

That all these action and/or on the part of the opposite parties, as stated herein above, shows lack of transparency causing mental torture and pecuniary loss to the complainant.

That the opposite parties were neglecting and refusing to handover the product sent through the OP No.2 and OP No.1 and illegally and wrongfully suspended the online listing services of the complainant for several months which amounts to deficiency of service on their part.  Hence this complaint case on behalf of the complainant is filed before this commission.

That the complainant has suffered immensely for not getting the product which he had sent through the OP No.2. The opposite parties are liable to compensate the complainant due to their fault and latches.

That the opposite parties adopted unfair means to deprive their customers/consumers as a whole and due to the illegal acts committed by the opposite parties, petitioner suffered mental agony, monetary loss which the opposite parties are liable to pay by way of compensation to petitioners.

Complainant is a consumer towards the opposite parties in terms of the C.P. Act, 2019.

That the complainant is a consumer under the act and has right to seek redress of his grievances before the Hon’ble Commissioner.

As Sec. 2(11) of the C.P. Act 2019 defines deficiency of service.  The act of the OPs, their fault, imperfection and manner of performance clearly shows the deficiency of service on the part of the Opposite Parties, the Opposite Parties have blatantly violated the work norms in relation to the service to be provided by them to the complainant under such contract which further falls under the ambit of deficiency in service.

Above all during such non cooperation and denying service towards a business man who have been maintaining his livelihood (start up business) from his business, for which complainant has already paid consideration for service towards OPs, but the OPs have created a lot inconveniences or harassment and mental injury to the complainant.

The OP No.1 has entered appearance in the case but OP No.2 not entered into the complaint case after satisfactory service of summons/notice.  The OP No.1 getting several opportunities to defend the case by filing written version and did not file its written version and evidence in the case against the allegation complaint of the complainant thus the commission automatically decided to fix the case for ex parte hearing/argument and the complainant also filed a brief notes on arguments and submitted verbally through his Ld. Advocate  after perusal of the complaint petition filed by the complainant and relied upon documents by the complainant.

Advocate for the complainant filed his evidence. The evidence is hereby considered and allowed B.N.A. filed by the complainant.

Above all, claim by the complainant remains more or less undisputed and defended by the opposite parties.  In such a situation, complainants are entitled to get relief(s) from the commission as sought for.

Hence it is

ORDERED

The Complaint Case No. CC/506/2022 is allowed against both the Opposite Parties and directed the opposite parties to return back the item sent by the complainant or to pay its price of Rs.9,240/- to the complainant within 60 days from passing of this order. 

The opposite parties are directed to pay compensation to the complainant to the tune of Rs.30,000/- for harassing, mental agony, pain and suffering and for deficiency in service and unfair trade practice by the opposite parties towards complainant within 60 days from the date of this order. 

The Opposite Parties are also directed to pay Rs.10,000/- for litigation cost to the complainant within 60 days from the date of this order.

In the event of non compliance by the Opposite Parties, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.

Directed and corrected by me

          Member