Shri Swapan Kumar Mahanty, President.

This is an application u/s.12 of the C.P. Act, 1986.

The case of the complainant, in brief, is as follows :-

That the complainant purchased a 65” TCL TV from O.P.-1 Amazon Seller Service Pvt. Ltd.  through O.P.-2 Cloudtail India Pvt. Ltd. upon believing advertisement  published on 21/09/2017 in the Times of India and it was also a part of the print media campaign of Diwali Wave Promotions of Amazon Great India Festival. It was mentioned in the said advertisement that 65” TCL TV worth of Rs.1,29,990/- being sold at a special price of Rs.94,990/- along with a TCL 32” TV free. The said TV was delivered to the complainant on 22/09/2017. That after receiving the product complainant surprised to see that the MRP of the subject TV was Rs.97,900/- instead of Rs.1,29,990/-. Immediately, the complainant contacted with the Amazon Customer Service and wanted to know about the difference of the actual MRP and advertisement MRP of the subject TV. Amazon Customer Service replied that on account of implementation of GST the price of the product has increased. The reply is a blatant lie as the MRP sticker on the product imported in the month of July,2017 within the implementation of GST. The O.Ps. adopted unfair trade practice allured the complainant including customers at large. Hence, the complainant has approached this Forum by way of consumer complaint seeking reliefs as prayed for.

The O.P.-1 has contested the case by filing a written version and resisted the complaint. The answering O.P. has contended that the complainant is not a consumer under the C. P. Act, 1986 and this Forum lacks of territorial jurisdiction to entertain the complaint. The specific case of the answering O.P. is that the subject TV  was brought  from the independent third party seller, the answering O.P. had / has limited role in this regard as the transaction was online through Website. The advertisement published in the Times of India is as per listing of the product done by the third party seller on Website for which the answering O.P. could not be held liable by any stretch of imagination. The disputed facts of MRP printed on the box which was different from the advertisement of the product was due to change of tax system (GST) from 01/07/2017. The O.P.-1 contended that the price of any product is exclusively determined by the manufacturer or seller of the product Cloudtail India Pvt. Ltd.(O.P.-2).  Therefore, the answering O.P. playing a restricted role of intermediary and have no control over the same. Thus, there is no deficiency in service or any unfair trade practice on the part of the answering O.P. Complainant has filed the present complaint  with ulterior motive  and mala fide intention to make unlawful gain. Accordingly, the answering O.P. has prayed for dismissal of the complaint with heavy cost.

O.P.-2 failed to file W.V. within the statutory period of 45 days. As such, the case has proceeded ex-parte against O.P.-2.

Decision with Reasons

            The complainant led evidence on affidavit in support of his case. The answering O.P. did not file E/Chief on affidavit in spite of giving opportunity. Both parties filed BNAs.

            We have heard the Ld. Advocates for the complainant and the O.P.-1 and have gone through the evidence as well as documents on record.

            There is no dispute with regard to the factum  of purchase of 65” TCL TV by the complainant against an advertisement published on 21/09/2017 in the Times of India promotions of Amazon Great Indian Festival. This fact is also admitted that on 21/09/2017 order was placed through online and product was delivered on 22/09/2017 against payment of Rs.94,990/-. It is also true that the value of the subject TV was Rs.1,29,990/- as per advertisement dated 21/09/2017 but the MRP of the subject TV was printed Rs.97,900/-. The grievance of the complainant is to change in MRP printed on the box of the subject TV  from the advertisement of the product. On the contrary, the answer of the O.P.-1 is that such difference was merely due to change in tax system (GST) from 01/07/2017 on which the O.P.-1 has no control.

            In this context it is pertinent to mention here that the Government Notification regarding GST are as follows :-

            “Central Government hereby permits the manufacturer or packer or importer of pre-packaged commodities to declare the changed retail sale price (MRP) for three months from 01/07/2017 to 30/09/2017. Declaration of the changed MRP shall be made by way of stamping or putting sticker next to old price.

            On items where the price has to be increased for unsold stocks, the manufacturer or packer or importer will have to give at least two advertisements in two or more newspapers informing people about the change.”

            There is no dispute  that the price of any product is exclusively determined by the manufacturer or the seller of the product. The O.P.-1 playing a restricted role of an intermediary does not  have any say or control over the same. The “condition of use”  as applicable during registration  on the  Website by the complainant as a buyer that has been accepted by him and the O.P.-1 has no control of any transaction between the users at the Website. Neither the O.P.-1 sale the item nor does it possess, inspect or guarantee the condition of the item. The contract of sale and purchase of the item traded over at the website is strictly a bipartite  contract between a registered seller and the customer and both the parties are bound by the terms of the “conditions of use”. There is no privity of contract between the O.P.-1 and the complainant. Thus, the O.P.-1 is not responsible for any non-performance or breach of contract entered between the complainant and the O.P.-2. On bare perusal of the advertisement dated 21/09/2017 published in the Times of India, we find that the deals and discounts are offered by participating sellers / brands to the total exclusion of Amazon. The subject TV was purchased by the complainant listed by the seller / O.P.-2 on the Website and the price of the product in question was fixed by the seller and the manufacturer i.e. TCL. Thus, the O.P.-1 has no role in the price fixed for the product and O.P.-1 is merely a facilitator. The O.P.-1 is only a shopping site  and the manufacturer / seller is responsible for the product. The O.P.-1 is not involved in the sale transaction  between the customer and seller. As such, there is no deficiency in service and unfair trade practice on the part of the O.P.-1 Amazon Seller Services Pvt. Ltd.

            Admittedly, the subject TV has been sold and delivered to the complainant in a sealed box. As per Government notification regarding GST implication over the sold and unsold products. It is also true that the Central Government permits the manufacturer or packer or importer of pre-packaged  commodities to declare the changed retail sale price (MRP) for three months from 01/07/2017 to 30/09/2017 and the original MRP shall continue to be displayed and revised price shall not overwrite on it subject  to publication of two advertisement in two or more newspapers informing people about the change. There is no document on record that the manufacturer or packer or importer or seller at least published two advertisement in two or more newspapers informing people about change of price. The MRP sticker on the subject TV shows that is was imported in the month of July,2017 when GST has already been implemented. Therefore, we are of the opinion that the O.P.-2 being the seller of the subject TV is guilty of deficiency in service and unfair trade practice according to the C. P. Act, 1986.

It is settled principle of Law that compensation should be commensurate with the facts and circumstances of the case, and injustice caused to the consumer. In our considered opinion, compensation of Rs.50,000/- for mental agony and harassment, caused to the complainant, as also deficiency in service on the part of the O.P.-2 could not be said to be, in any way excessive. Complainant has filed the instant consumer complaint on 23/08/2018. Complainant also engaged lawyer, for filing the consumer complaint and prosecuting the same. For engaging lawyer to file the complaint the complainant must have paid him the fees. In our considered opinion, litigation cost to the tune of Rs.10,000/- is reasonable.

In the result, the case succeeds in part.

Hence,

Ordered

That the complaint case be and the same is dismissed on contest against the O.P.-1 without any cost and also allowed ex-parte in part against the O.P.-2 with litigation cost of Rs.10,000/- (Rupees Ten Thousand) only.

            The O.P.-2 is directed to pay Rs.50,000/- (Rupees Fifty Thousand) only to the complainant within 30 days from the date of this order for causing harassment, mental pain and agony along with litigation cost.

            The O.P.-2 is also directed to pay Rs.10,000/- (Rupees Ten Thousand) only to this Forum as punitive damage for practicing unfair trade within the stipulated period.

Liberty be given to the complainant to put the order in execution,if the OP-2 transgresses to comply the order.

Certified copies of this order be given to the parties as and when applied for.