Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 76.
Instituted on : 01.02.2021.
Decided on : 02.02.2022.
Vikrant, aged 34 years son of Sh. Sunil Kumar, resident of House No.30, Officers Revenue Colony, Adjoining Agro Mall, Sector-14, Rohtak.
.......................Complainant.
Vs.
- Amazon Seller Services Pvt. Ltd. Unit no.1 Khewat/Khata no.373/400, Mustatil No.31, Village Taoru, Tehsil Taoru, Distt. Mewat, Bilaspur Taoru Road, Mewat Haryana-122105 through its Managing Director.
- A2Z Retail Khasara No.93/8-9 Village Binola Bhorakalan, Gurgaon-122413 through its Prop./Managing Director.
- Clouldtail India Private Limited, Ground Floor, Rear Portion, H-9, Block B1, Mohan Cooperative Industrial Area, Mathura Road, New Delhi-110044.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. SHYAM LAL, MEMBER
Present: Sh. Ankur Dua, Advocate for the complainant.
Shri Sandeep Raj, Advocate for the opposite party no.1.
Shri Amit Kumar, Advocate for the Opposite party no.3.
Opposite party no.2 given up.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that on dated 21.1.2021, the complainant had ordered one Formal Shoes “Amazon Brand- Symbol men’s Navy Synthetic Formal Shoes-7 UK, Style Code AZ-KY-199A, vide order 406-1877671-2745958 for Rs.450/- from respondent no.1 and the above said shoes was delivered to the complainant on 26.1.2021. When the complainant opened the box, he was shocked to know that the product was of very poor quality, dirty conditions having foul smell and seems like already used by someone or second hand product. Thereafter, the complainant approached to the officials of the respondents on the very same day but they refused to listen to the genuine request of the complainant and also misbehaved with the complainant. The aforesaid product was sold by respondent no.1, packed by respondent no.2 and marketed by respondent no.3. The act and conduct of the opposite parties of selling the defective and second hand product to the complainant is illegal and amounts to deficiency in service. Hence, this complaint and it is prayed that opposite parties may kindly be directed to refund the invoice amount alongwith interest @ 24% p.m. from the date of purchase and also to pay an amount of Rs.1,00,000/- on account of harassment as well as Rs.55,000/- on account of litigation expenses to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No. 1 in its reply has submitted that ASSPL/answering respondent operates an e-commerce marketplace where over five lakh independent third party sellers have listed their products for sale. Respondent no.3 Cloudtail India Private Limited is one of the independent third party sellers, which has listed its products for sale on the e-commerce marketplace operated by ASSPL/answering respondent. It is submitted that upon receipt of the complaint, ASSPL contacted the independent third party seller i.e. Cloudtail India Private Limited on behalf of complainant. The Independent third party seller informed ASSPL that the complainant could create a return request to get refund for the product. The same was communicated to the complainant by ASSPL, on behalf of independent third party seller. However, the complainant refused to create a return request and only wanted compensation. It is further submitted that the facility of the replacement/refund for a product is provided by the independent third party sellers. It is further submitted that ASSPL had no role in the entire transaction undertaken between the complainant and the Independent Third Party Seller and hence, ASSPL cannot be held liable for providing the facility of replacement/refund with respect to the product, which was sold to the complainant by the Independent Third Party Seller i.e. Cloudtail India Private Limited. It is further submitted that the complainant had to create a return for the product, which he failed to do so. All the other contents of the complaint were stated to be wrong and denied and opposite party no.1 prayed for dismissal of complaint with costs.
3. Opposite party No. 3 in its reply has submitted that the answering respondent is merely a reseller on the website and the product is packed, delivered and stored by opposite party no.1 and not the answering respondent. It is also submitted that the pictures annexed by the complainant does not prove that the product is of poor quality. It is also submitted that there is nothing in the complaint, which proves that the complainant has not used the product and pictures annexed by the complainant are of the same product which was delivered to him. All the other contents of the complaint were stated to be wrong and denied and opposite party no.3 prayed for dismissal of complaint with costs. However, ld. Counsel for the complainant given up opposite party no.2 vide his separately recorded statement on dated 13.10.2021.
4. Ld. counsel for the complainant was made a statement on dated 28.10.2021 that complaint be read into his evidence and has closed his evidence after tendering documents Ex.C1 to Ex.C15. Ld. Counsel for the Opposite party no.1 in his evidence has tendered affidavit Ex.RW1/A and document Ex.R1 and has closed his evidence on dated 6.1.2022. Ld. Counsel for the Opposite party no.3 in his evidence has tendered affidavit Ex.RW3/A and document Ex.R3/1 and has closed his evidence on dated 20.1.2022.
5. We have heard learned counsel for the parties and have gone through the material aspects of the case very carefully.
6. In the present case, it is not disputed that as per bill Ex.C2, complainant had purchased a pair of shoes from the opposite parties for a sum of Rs.450/-. As per the photographs placed on record by the complainant Ex.C7 to Ex.C12, it is crystal clear that when the complainant unpacked the shoes from the box, the basement of the shoes is looking too much dirty and muddy, upper portion of the shoes is showing wrinkles and dust. The conditions of the shoes is like old one, as if, they are used for so many days and then packed in the box so that they can be sold as new one. Hence the old and second hand shoes have been sold by the opposite parties in place of brand new shoes. The opposite parties have cheated the complainant by selling the old and used product to the complainant. Hence there is deficiency in service and unfair trade practice on the part of opposite parties.
7. Opposite parties have failed to prove any terms and conditions or any agreement which could prove that there is no liability of opposite parties against the complainant. Opposite party No.1 cannot escape from its liability only after stating that he has only provided a platform to the third party sellers who listed their products for sale. In fact an action should have been taken by the opposite party no.1 against the erring party on receipt of complaint from the consumer. But no such action has been taken by the opposite party no.1. Secondly it is an admitted fact that opposite party No.3 in its written statement has submitted that opposite party No.3 is simply a re-seller on the website and the product is packed, delivered and stored by opposite party no.1. If it is true fact, in that situation also, respondent no.1 is responsible for deficiency in service on his part. Opposite party no.3 also cannot escape from its liability as the product has been marketed by opposite party No.3. As such opposite party No.1 & 3 are jointly and severally liable to compensate the complainant.
8. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.1 & 3 jointly and severally to refund the price of shoes i.e. Rs.450/-(Rupees four hundred and fifty only), also to pay as exemplary cost of Rs.25000/-(Rupees twenty five thousand only) on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision, failing which opposite party no.1 & 3 shall be liable to pay interest @ 9% p.a. on the alleged awarded amount of Rs.25000/- from the date of order i.e. 02.02.2022 till its realization to the complainant. However, complainant is directed to return the pair of shoes in question to the opposite parties at the time of making payment by them.
9. Copy of this order be supplied to both the parties free of
costs. File be consigned to the record room after due compliance.
Announced in open court:
02.02.2022.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
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Shyam Lal, Member
