Haryana

Panchkula

CC/141/2018

SHIV KUMAR - Complainant(s)

Versus

AMAZON SELLER SERVICES PVT.LTD. - Opp.Party(s)

COMPLAINANT IN PERSON

28 May 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA                                                       

Consumer Complaint No	:	141 of 2018
Date of Institution	:	13.08.2018
Date of Decision	:	28.05.2019

 

Shiv Kumar son of Sh. Omkar Singh, resident of House No.542, Second Floor, Sector 4, Panchkula, Haryana.                                ….Complainant

 

Versus

1. Amazon Seller Services Pvt. Ltd., Ground Floor, Eros Corporate Center, Nehru Place, New Delhi 110019, Fax: 001-47985609.
2. Anandit Infotech No.113, Vivek Complex, SP Road, No.113, Vivek Complex, SP Road, Bengaluru, Karnataka, 560002.

….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Mr.Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person. 

                        Ms. Sonia Saini, Advocate for Op No.1.

                        OP No.2 ex-parte vide order dated 19.11.2018.

ORDER

(Satpal, President)

1.     The brief facts of the present complaint are that the complainant had ordered for 32 GB RAM (16 X 2 Pcs) with model number F4-3000C14D-32GTZR on 26.07.2018 at a price of Rs.17,500/- from amazon.in but on 01.08.2018, on delivery, the complainant received 16GB RAM (8 X 2 Pcs) with model F4-3000C16D-16GTZR instead of 32 GB RAM. In this regard, the complainant approached the OP No.1,who took 3-5 business days for investigating the matter. After 3-5 days, complainant contacted the OP no.1 who stated that they would refund back the money but cannot replace the product in question as some technical error due to the price increasing of the same product; this act and conduct of the Ops amount to deficiency in service on their part; hence, this complaint.

2.     Upon notice, OP No.1 appeared to contest the complaint by filing the written statement taking preliminary objections that the complaint is not maintainable; that the complainant does not fall within the definition of consumer under the CPA, 1986; that this Forum has no jurisdiction to entertain the present complaint. It is stated that the OP No.1 neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale.  The sellers themselves are responsible for their respective listings and products on the Website. The OP No.1 is not responsible for the products that are listed on the website by various third party sellers.  The OP No.1 neither intervene or influence any customer in any manner nor involved in the sale transaction between the customer and seller.  The ‘conditions of use’ of the website and specifically agreed by the customer’s state that the OP NO.1 is not only a facilitator and cannot be a party to or control in any manner any sale transaction on the website. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller. The OP NO.1 is an intermediary as per the Information Technology Act, 2000.  The complainant has not placed an order for any goods from ASSPL nor has the complainant paid any amount/consideration to ASSPL. The goods have been bought by the complainant from the independent third party seller selling its products on the website operated by the OP NO.1.  

        On merits, it is denied that the complainant purchased the said product from OP No.1. The product was a Merchant Fulfilled Network Product wherein the listing, sale, sealing and packaging of the product is done by the concerned seller and not OP No.1. The complainant had been offered a complete refund which he refused on multiple occasions. However, the complainant demanded that OP No.1 provided a new replacement for the product so ordered. The OP No.1 is neither the seller nor the manufacturer of the produce; therefore, OP No.1 was in no position to provide the complainant with a replacement for the product. Hence, there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed qua OP No.1.

3.     Notice was issued to the OP No.2 through registered post on 26.09.2018 vide registered post No.CH054772802IN, which was not received back either served or unserved despite the expiring of 30 days from the issuance of notice to OP No.2; hence, it was deemed to be served and thus, due to non appearance of Op No.2, he was proceeded ex-parte by this Forum vide its order dated 19.11.2018.

4.     To prove his case, the complainant has tendered affidavit as Annexure CA along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, ld. counsel for the OP No.1 tendered affidavit Annexure R1/A along with documents Annexure R-1/1 and R-1/2 and closed the evidence.  

 

5.     We have heard the complainant, learned counsel for the Op No.1 and gone through the record minutely and carefully.

         It is evident that the complainant placed an order No.404-2160944-677140 with the OP No.1 for purchasing a G. Skill Trident Z RGB Series DDR4 Memory Module (16GB X 2 Pcs, 3000Mhz) B072 JB9DR2 having a specification of 16 GB into 2 piece for a sum of Rs.17,550/-. It is also evident that the complainant received the product of 16GB RAM for 8 X 2 Pcs with model F4-3000C16D-16GTZR instead of 32 GB RAM of G.Skill Trident Z RGB Series DDR4 Memory Module (16 GB X 2pcs, 3000Mhz) as ordered by him vide said order No.404-2160944-6777140. The copy of bill amounting to Rs.17,500/- is available on record as Annexure C-1 and the order details regarding the 16 GB X 2Pcs, 3000Mhz  are contained in Annexure C-2 . We find that the complainant upon the receipt of different product contrary to his ordered product immediately brought the matter into the notice of OP no.1 requesting for delivery of the ordered product. We also find a long email conversation between the complainant and the officials of OPs on 31.08.2018 wherein the OPs CSA regretted and asked the complainant to send the voter ID, Aadhar Card etc. We have no doubt with regard to the payment of Rs.17,500/- to the OP No.1 as is evident from Annexure C-6. The complainant has prayed for replacement of the received product i.e. 16GB RAM (8 X 2 Pcs) having model F4-3000C16D-16GTZR with Trident Z 32GB RAM (16 X 2 PCs) having model number F4-3000C14D, if in case OP is not able to replace the same product on same price then the prayer for refund of the amount with the interest of 18% per annum has been made. The complainant has also prayed for the award of compensation on account of harassment and litigation charges.

        The OP No.1 has contested the claim of the complainant stating that OP No.1 neither sells nor offers any product and it merely provides an online marketplace where independent third party sellers list their products for sale and therefore, the sellers themselves are responsible for their product. The ld. counsel appearing on behalf of OP No.1 invited our attention towards the fact that the product in question was sold by OP No.2 as is evident from a perusal of Annexure C-1 and hence only the seller i.e. OP No.2 is liable for the deficiency in the matter. The ld. counsel stated that there is no deficiency on the part of the OP No.1 as the matter in question was immediately taken up by the OP No.1 with OP No.2 with regard to the refund of the sale price amounting to Rs.17,500/-. The ld. counsel placed reliance upon the law laid down by Hon’ble High Court of Delhi in case titled as Kent RO Systems Ltd. & Anr. v. Amit Kotak & Ors., CS(COMM)1655/2016 vide order dated 18.01.2017. The ld. counsel also placed reliance upon the law laid down by Hon’ble Supreme Court of India, in case titled as Shreya Singhal v. Union of India, AIR 2015 CS 1523. The ld. counsel further placed reliance upon the law laid down by Consumer Disputes Forum, South Goa in case titled as Surendra Nandu Vs. Green Mobiles & Ors. in judgment dated 27.04.2016. The ld. counsel placed reliance upon the law laid down by Hon’ble High Court of Kerala in case titled as Flipkart Internet Private vs. State of Kerala on 07.01.2013. The ld. counsel also stated that the complainant was offered a complete refund which he refused on multiple occasions.

6.     We do not agree with the contention of OP No.1 that it merely acts as a market place for the sale and purchase of the various products. Further, it is an admitted case of the OP No.1 that it is an online shopping portal and it works as a link or chain between the buyer and seller and the job of OP No.1 includes the collection of orders from the various consumers just like the present complainant and then forward those orders to the concerned seller/vendors for the purposes of the delivery and dispatch to the consumers. It is not the case of OP No.1 that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of OP No.1 that it is a charitable organization and involved in e-commerce with no business returns for itself, therefore, the plea raised by OP No.1 that it is neither the manufacturer nor the supplier of the articles is of no avail to it and therefore, the OP No.1 cannot claim exoneration in the present matter.  It is worthwhile to mention here that now-a-days online shopping is spreading everywhere because it is time and money saving but the responsibilities of the companies cannot be over after selling of the product as it is the bounden duty of the companies to satisfy their customers because liberty cannot be given to the companies to usurp the money of the consumers either by sending wrong item or defective product. The Hon’ble State Consumer Disputes Redressal Commission UT Chandigarh, in the appeal No.27 of 2017, titled as Amazon Seller Services Private Vs. Gopal Krishan, decided on 17.2.2017 held in Para No.8 of its order as under:-

“An agent, who sells a product, is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with the manufacturer of the product. It was so held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Emerging India Real Assets Pvt. Ltd. & Anr. Vs. Kamer Chand & Anr. Revision Petition No.765 of 2016 decided on 30.3.2016.”

We do not find any letter communication on record offering the return of the purchased price to the complainant as alleged by the OP No.1.

7.     The OP No.2 did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against him. The non-appearance of the OP No.2 despite notice shows that he has nothing to say in his defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted by OP No.2.

On the other hand, the version of the complainant is fully supported and corroborated by his affidavit Annexure CA, along with documents Annexure C-1 to C-6.

8.     In view of above discussion, we have no hesitation to conclude that there has been lapse and deficiency on the part of the Ops while supplying the services to the complainant and both the OPs are liable to compensate the complainant jointly and severely.

9.     As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs:-

1. That the Ops shall refund the amount of Rs.17,500/-(cost of product in question) to the complainant along with interest @ 9% per annum from the filing of complaint till realization subject to the submission of  the product in question by the complainant with the OPs.

 

2. The Ops shall pay a lump sum amount of Rs.5,000/- on account of mental agony, harassment and litigation charges.

10.    The OPs shall comply with the directions/order within a period of 30 days from the date of communication of copy of this order to OPs failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced

28.05.2019      Dr.Sushma Garg   Dr. Pawan Kumar Saini         Satpal

                            Member              Member                              President

 

Note: Each and every page of this order has been duly signed by me.

                                         Satpal

                                         President