PER:
Varinder Pal Singh Saini, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite parties on the allegations that opposite party No. 2 is dealing to sell out the product i.e. Ashwagandha Capsules and Shilajit tablets and other products, and the complainant ordered to purchase the products namely Ashwagandha capsules and Shilajit tablets through online website Amazon.in i.e. website of opposite party No. 1. On 5.6.2022 at Judicial Court Complex, Tarn Taran, the complainant, ordered to purchase the said capsules and tablets through online website i.e. website of opposite party No.1 through his registered mobile number 98888-88287, and the said order was registered vide Order ID No.171-2766591-5569954, which was delivered to the complainant on 9.6.2022 at Judicial Court Complex, Tarn Taran and payment of the same has been debited from the account of the complainant. As and when the said articles delivered to the complainant, the complainant opened the delivery package from checking the products inside; and was astonished after opening the said parcels, it came to light that the seals of the bottles of the capsules as well as tablets, so delivered by opposite parties to the complainant, was damaged and in broken condition and the proof of the same is with the complainant because at the time of opening the products, the complainant made video of the said products. Please note the order details as follows for its reference;
Date of Order - 05.06.2022 vide ID No. 171-2766591-5569954
Name of the person who ordered - Elvin (Judicial Court Complex, Tarn Taran)
Bill/invoice No.DL-DEX6-1514901075-2223.
Items of products ordered: Ashwagandha capsules and Shilajit tablets
Item name and its quantity: Ashwagandha 60 capsules and Shilajit 30 tablets
Total Price: Rs.1177/-
Date of Delivery 09.06.2022.
Thereafter, the complainant contacted the opposite parties through customer care mobile number and narrated the whole incident occurred with the complainant and even show the video of the same and also requested to change the bottles of the said capsules as well as tablets but the opposite parties did not pay any heed to the genuine request of the complainant and on the contrary, quarreled with the complainant and flatly refused to replace the same to the complainant. The complainant many times pointed out that certain product supplied to the complainant are not the genuine product, it seemed to be expired capsules as well as tables because the seals of the bottles were broken/damaged when the complainant received the parcels from the courier man of opposite parties. The life of the complainant may come in danger in case he consumes the same. While negligence claims require proof that party acted unreasonably, strict liability claims hold a manufacturer, supplier or retailer responsible for injuries caused by a defective product regardless of fault or intent. If a product is determined to be unreasonably dangerous to consumer and injury results from using the product, the mere fact that the product is defective is sufficient to hold the responsible parties liable in a court of law. The opposite parties being Administrative Officer/Head of company is wholly-solly in-charge for the day to day affairs of the product as well as items so delivered by the opposite parties. The day of delivered of parcels of the bottles and uptill today, the complainant many times requested to the opposite parties to admit his claim thereby changing or to return the money of the complainant but the opposite parties did not listening the complainant's genuine request and lingered on the matter by one pretext or the other and even are not ready to listen/heard the complainant from any corner. There is requirement of the complainant to purchase the said capsules as well as tables, as such, the complainant purchased the said products from the websites of opposite parties. But the opposite parties have cheated and played fraud with the complainant as well as have committed criminal breach of trust and also trying to play with the life of the complainant thereby sending the expiry capsules and tablets because the same was damaged and broken in condition. It is well settled that every consumer of goods or services has a right to lodge complaints to the company who provided them with any defective products. Moreover, the manufacturing company of the product made it clear by giving warning, do not purchase the product, if seal is damaged or broken and in this case, the seal of the products already been damaged and broken, as such the opposite parties is liable to compensate the complainant and even to replace the product. The complainant through his counsel Sh. Harjinder Singh Sokhi, also sent a legal notice dated 22.07.2022 to pay compensation but the opposite parties did not pay any heed to the genuine request of the complainant and even did not give any reply to the legal notice of the complainant because the opposite parties have committed fraud with the complainant, as such, they did not give any reply to the notice of the complainant intentionally and deliberately. The opposite parties are guilty of fault, imperfection, abort coming and inadequacy in the quality, nature and manner of performance of service, hence it is gross negligence on the part of the opposite parties. Moreover, the said acts on the part of the opposite parties have also resulted in great mental pain, agony, harassment and inconvenience to the complainant and as such the complainant is legally entitled for compensation to the tune of Rs.3,00,000/- on account of negligence on the part of the opposite parties and also mental and physical harassment as the complainant is suffering a lot by financial as well as physical. It is pertinent to mention here that the complainant has suffered an injury due to receiving unsafe/defective/damaged products. When a product is defective and causes damage, the designer, manufacturer or distributor may be held liable for compensation. Moreover, any individual involved in the design, manufacture or distribution of a product has a duty to provide a safe product. If one of these individuals fails to exercise reasonable care and their action (or inaction) results in injury, he or she can be held liable. Negligence claims under product liability law include design errors, careless mistakes in the manufacturing of a product and failure to warm consumers of the dangers associated with a product. The complainant has prayed that the opposite parties may kindly be directed:-
- To pay refund an amount of Rs. 1,177/- which was paid by the complainant for Ashwagandha 60 Capsules and Shilajit 30 tablets.
- To pay compensation of Rs. 3,00,000/- towards mental agony.
- To pay Rs. 10,000/- towards costs of litigation on account of negligence on the part of the opposite parties in order to create unnecessarily harassment and mental pain to the complainant thereby not replacing the goods/ articles/bottles so delivered by the opposite parties to the complainant and even wasting the precious time of complainant and litigation charges to the tune of Rs. 15,000/- in the interest of justice, equity and fair-play.
Alongwith complaint, the complainant has placed on record self attested copy of Bill dated 5.6.2022 Ex. C-1, Self attested copy of legal notice dated 22.7.2022 Ex. C-2, Self attested copy of original postal receipt dated 22.7.2022 Ex. C-3, C-4, Self attested copy of identity Card of Judicial Department of complainant Elvin Ex. C-5, Self attested copy of Adhar Card of complainant Ex. C-6, Affidavit of complainant Ex. C-7.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 1 appeared through counsel and filed written version by interalia pleadings that the complainant placed an order for Ashwagandha 60 Capsules and Shilajit 30 Tablets vide order ID_171-2766591-5569954 from an independent third party seller i.e. My Pura Vida Wellness Private Limited having its place of business at J-4, Block B-1, Mohan cooperative Industrial Estate, Mathura Road New Delhi, Delhi, 110044 India on www.amazon.in. Again the purchased for the impugned product an invoice dated 5.6.2022 bearing Invoice Number : DEX6-311 for an amount of Rs. 1,177 was issued by Seller/ Opposite party No. 2 duly indicating its goods and Service Tax Number (GSTN) i.e. 07AACCW7540E1ZD and the permanent account Number (PAN) i.e. AACCW7540E and the permanent account it is reiterated that the tax invoice was issued by the Seller/ opposite party No. 2 and not by the opposite party No. 1/ASSPL clearly indicating that the transaction of sale was executed by and between the complainant and the seller / opposite party No. 2. True copy of the Invoice dated 5.6.2022, issued by the Seller/ Opposite party No. 2 is Annexure OP-1/2. The payment of consideration towards the impugned product was made by the complainant to the seller/ opposite party No. 2 in the nodal account set up in accordance with the RBI Guidelines bearing No. RBI/2009-10/231 dated 24.11.2009. This notification of RBI contains directions mandating opening and operation of nodal accounts, not maintained, or operated by intermediaries, for facilitating collection of payments from customers on behalf of the seller/ opposite party No. 2. The payment made in to the nodal account is not a payment made to the opposite party No. 1/ ASSPL herein. The nodal account is maintained and audited by a bank recognized for such purpose by the RBI, and not by opposite party No. 1/ ASSPL. The opposite party no. 1 / ASSPL herein is not the account holder or owner of the nodal account and cannot transact at will without restriction on the said nodal account. As per the directions from the RBI, any transaction between a buyer and an independent third party seller is executed through an independent nodal account maintained by the banks which is separate and free from the internal accounts of the seller. The relevant extract from the RBI directions is produced herein below for this commission’s reference:-
“2.1 Intermediaries:- Intermediaries would include all entities that collect monies received from customers for payment to merchants using any electronic/ online payment mode, for goods and services availed by them and subsequently facilitate the transfer of these monies to the merchants in final settlement of the obligations of the paying customers…..”
3 Maintaining of accounts for the collection of payments
3.1 All accounts opened and maintained by banks for facilitating collection of payments by intermediaries from customers of merchants, shall be treated as internal accounts of the banks. While it is left to the banks to decide on the exact nomenclature of such accounts it shall be ensured that such accounts are not maintained or operated by the intermediaries.
3.2 Settlement
The final settlements of funds to the merchants…. In order to increase the efficiency of the payments process, it is necessary that banks transfer funds to the ultimate beneficiaries with minimum time delay. It is therefore mandated that banks shall implement the following settlement cycle for all final settlements to merchants. This settlement arrangement shall be implemented within three months of issuance of this circular…..”
Therefore, based on the given RBI direction, opposite party No. 1/ ASSPL does not charge the buyers on the e-commerce marketplace the consideration paid by the buyers towards purchase on the e-commerce marketplace is paid directly to the independent third- party seller from whom the purchase is made through the nodal account. The opposite party No. 1/ ASSPL provides a “free for all” marketplace to buyers who have access to the internet, hence providing a communication and hosting network to buyers to purchase products for sale and to conduct a transaction. Copy of the RBI directions is annexed herewith and marked as Annexure- OP-1/3. The complainant contacted opposite party No. 1/ ASSPL alleging that after unboxing the parcel he found that he impugned product was damaged. Subsequent to this, Opposite Party No. 1/ASSPL internally inquired the complainant's complaint and learnt that the Impugned Product was delivered to the complainant in an intact on 09.06.2022 at the address provided by the Complainant i.e., Judicial court complex, Judicial court Taran Taran, Punjab, 143401 India. Upon receiving the Complainant's grievance the Opposite Party No. 1/ASSPL proactively acted upon the same and conducted a thorough internal enquiry and it was confirmed that the correct product for which the complainant has placed order was packed, shipped and delivered to the complainant in an intact condition. The present complaint filed by the Complainant is bad for mis-joinder of parties as the Complainant has improperly and unnecessarily impleaded the Opposite Party No. 1/ASSPL to the present complaint who is merely an intermediary. The Opposite Party No. 1/ASSPL is a mere intermediary and is not to be held responsible in the present matter. It is noteworthy that the concerns raised by the Complainant in the present complaint, i.e., allegedly damaged product, can only be addressed by the Seller/Opposite Party No. 2. The allegations leveled by the Complainant qua the Opposite Party No. I/ASSPL are not only without an iota of evidence but are based on concocted and fabricated stories and are devoid of merits. The Complainant through this complaint is only trying to obtain undue monetary gains from Opposite Party No. 1/ASSPL, by filing such frivolous complaint. The said complaint is liable to be dismissed in limine basis the false statements submitted by the complainant. The Impugned Product was successfully delivered to the Complainant in an intact condition. The Opposite Party No. 1/ASSPL operates and manages the e-commerce marketplace at www.amazon.in wherein lakhs of third-party sellers and buyers interact and conduct their transactions and as such is an 'intermediary' in terms of Section 2(1)(w) of the Information Technology Act, 2000 ("IT Act"). The Opposite Party No. 1/ASSPL's online marketplace provides users access to a range of approximately 170 million products listed / offered for sale by approximately 5,00,000 registered sellers across a broad range of categories. Any seller is free to list any product for sale and any buyer is free to choose and order any product from any independent third-party seller selling that product on the e-commerce marketplace. The only role of Opposite Party No. 1/ASSPL is to make the e-commerce marketplace user friendly for the independent third-party sellers to list necessary details of the products and for the buyers for searching and browsing through the said products. All invoices for the sale transactions between the buyers and the independent third-party sellers are tax invoices issued by such independent third-party sellers clearly indicating their unique tax identification number goods and services tax number (GSTN). All payments are made directly by such buyers to independent third-party sellers. It is significant to note that the invoice against the order was issued by the Seller Opposite Party No. 2, not by the Opposite Party No. 1/ASSPL. The Contract of Sale was executed by and between the Complainant and the Seller/ Opposite Party No. 2. Therefore, there is no privity of contract between the Opposite Party No. I/ASSPL and the Complainant. All customers who visit the e-commerce marketplace enter into a 'Conditions of Use' where there is a clear understanding of the role of Opposite Party No. 1/ASSPL with respect to all sales transactions entered by and between the independent third-party sellers and the customers. Clause 3 of the Conditions of Use categorically states the legal position of Opposite Party No. 1/ASSPL that it merely operates an e-commerce marketplace to facilitate sale transactions entered by and between the buyer and independent third-party seller. All the transactions of sale undertaken by the buyer on the e-commerce marketplace are strictly bipartite agreements between the buyer and the seller listed on the marketplace of Opposite Party No. 1/ASSPL. Further, Clause 13 of the Conditions of Use states that Opposite Party No. I/ASSPL is not liable, in any manner whatsoever, for the performance of the sale agreement executed by and between the buyer and seller on the e-commerce marketplace as the agreement of sale entered by and between the buyer and seller. The Opposite Party No. 1/ASSPL has no role to play in the same. Relevant extracts of the Conditions of Use are reproduced below for kind perusal of this Commission:
“3. E-Platform for Communication
You agree, understand and acknowledge that the website is an online platform that enables you to purchase products listed on the website at the price indicated therein at any time from any location. You further agree and acknowledge that Amazon is only a facilitator and is not and cannot be a party to or control in any manner any transactions on the website. Accordingly, the contract of sale of products on the website shall be a strictly bipartite contract between you and the sellers on Amazon.in.
13. Disclaimer
You acknowledge and undertake that you are accessing the services on the website and transacting at your own risk and are using your best and prudent judgment before entering into any transactions through the website. You further acknowledge and undertake that you will use the website to order products only for your personal use and not for business purposes. We shall neither be liable nor responsible for any actions or inactions of sellers nor any breach of conditions, representations or warranties by the sellers or manufacturers of the products and hereby expressly disclaim and any all responsibility and liability in that regard. We shall not mediate or resolve any dispute or disagreement between you and the sellers or manufacturers of the products.
We further expressly disclaim any warranties or representations (express or implied) in respect of quality, suitability, accuracy, reliability, completeness. timeliness, performance, safety, merchantability, fitness for a particular purpose, or legality of the products listed or displayed or transacted or the content (including product or pricing information and/or specifications) on the website. While we have taken precautions to avoid inaccuracies in content, this website, all content, information (including the price of products), software, products, services and related graphics are provided as is, without warranty of any kind. We do not implicitly or explicitly support or endorse the sale or purchase of any products on the website. At no time shall any right, title or interest in the products sold through or displayed on the website vest with Amazon nor shall Amazon have any obligations or liabilities in respect of any transactions on the website."
The Opposite Party No. 1/ASSPL merely provides an e-commerce marketplace where the sale transaction is entered by and between the buyer and the independent third-party seller. These sale transactions by the user of the e-commerce marketplace of the Opposite Party No. 1/ASSPL are also governed by the "Conditions of Sale" which reiterates that the contract of sale is bipartite between a buyer and the Seller/ Opposite Party No. 2. Copies of Conditions of Use' and 'Conditions of Sale' are annexed herewith and marked as ANNEXURE- 'OP-1/4'. The Opposite Party No. 1/ASSPL is an 'intermediary' as defined under the Information Technology Act, 2000 (hereinafter referred to as the "IT Act"") and complies with all the obligations laid down for intermediaries in the Information Technology (Intermediaries Guidelines) Rules, 2011 (hereinafter referred to as the "IT Rules"). That Section 2(w) of the IT Act defines an intermediary as the following:
"intermediary", with respect to any particular electronic records. means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers. search engines, online payment sites, online-auction sites, online- market places and cyber cafes."
As per Section 79 of the IT Act, Opposite Party No. 1/ASSPL being an intermediary, is not liable for any information/ material/ warranties/ representations made by the sellers on the e-commerce marketplace. Section 79 of the IT Act is reproduced below for kind perusal of this Commission:
"79. Exemption from liability of intermediary in certain cases. (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(2)
(3)…”
The Opposite Party No. 1/ASSPL is compliant with the pre- requisites of Section 79 of the IT Act and IT Rules and thus is entitled to an exemption from liability for the information/ material hosted on its marketplace. As per the provisions of the Consumer Protection Act, 2019, Opposite Party No. 1/ASSPL has been defined as an electronic service provider' which provides an e-commerce marketplace wherein independent third-party sellers list and sell their products to buyers. Section 2(17) of the Consumer Protection Act, 2019 defines the term electronic service provider as follows:
"2. Definitions
(17) "electronic service provider" means a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites"
From a reading of the above, it is evident that the term electronic service provider includes an e-commerce marketplace like www.amazon.in operated by Opposite Party No. 1/ASSPL. Further, the term the electronic service provider elucidates the role of an electronic service provider like Opposite Party No. 1/ASSPL i.e., for providing (a) technologies or (b) processes to enable a "Product Seller" to engage in advertising or selling goods or services to a consumer. From a bare reading of the term electronic service provider makes it clear that an online/e-commerce marketplace like Opposite Party No. 1/ASSPL is not a "Product Seller" in fact, the Opposite Party No. 1/ASSPL being an e-commerce marketplace processes to enable a "Product Seller" to engage in advertising or selling goods or services to a consumer. The Complainant has raised issues, which involves question of facts as well as law and it necessarily requires deposition of evidence and trial and the same cannot be done in proceedings under Consumer Protection Act 2019 which are summary proceedings and the complicated questions of law and facts are beyond the jurisdiction of this Commission. The complaint is liable to be dismissed on this ground alone. BEING AN INTERMEDIARY AND E-COMMERCE MARKETPLACE. OPPOSITE PARTY NO, 1/ASSPL IS NOT LIABLE FOR ANY CLAIMS ARISING OUT OF THE PRODUCTS SOLD ON THE E-COMMERCE MARKETPLACE BY INDEPENDENT THIRD-PARTY SELLERS. Opposite Party No. 1/ASSPL is an intermediary as defined under Section 2(1) (w) of the Information Technology Act, 2000 and, therefore is not liable for third party content on its marketplace as stipulated under Section 79 of the Act. Through the aforementioned e-commerce marketplace, thousands of third-party sellers can display and sell their products and a number of buyers can purchase the said products. Vide Press Note 2 (2018 Series) issued by the Department of Industrial Policy and Promotion (DIPP) ("the FDI Policy"), signed on 26.12.2018, a clear distinction has been made between "marketplace based model of e-commerce" and "inventory based model of e-commerce", which is as follows:
i. 'Marketplace based model of e-commerce' is defined (u/c 2 (ii E) (d) as "providing of an information technology platform by an e- commerce entity on a digital and electronic network to act as a facilitator between buyer and seller"
ii. 'Inventory based model of e-commerce' is defined (u/c 2 (ii E) (c) "an e-commerce activity where inventory of goods and services is owned by e-commerce entity and is sold to the consumer directly".
To put it in other words it is stated that in accordance with the current FDI Policy (Press Note 3 of 2016 issued by the department of industrial policy and promotion (DIPP) ("FDI Policy") a marketplace is now a recognized concept wherein an e-commerce entity operating a marketplace is required provide a neutral marketplace to allow sellers to interact with their customers, without exercising ownership over any goods, or indulging in the manufacture or "dealing in" any goods.
OPPOSITE PARTY NO. 1/ASSPL CANNOT BE HELD LIABLE FOR CONTRACT OF SALE EXECUTED BY AND BETWEEN THE COMPLAINANT, I.E., THE BUYER AND THE SELLER.
The transaction of sale of the Product and a valid contract of sale existed only between the Seller/ Opposite Party No. 2 and the Complainant. The Complainant has explicitly, by virtue of the use of the marketplace, agreed to be bound by the terms contained in the conditions of use and sale. The transaction for the sale of the Product through a contract of sale existed only between Seller/ Opposite Party No. 2 and the Complainant. The Complainant has explicitly, by virtue of his use of the e-commerce marketplace, agreed to be bound by the terms contained in the conditions of use and sale. The Complainant has filed the complaint without any application of legal mind and unnecessarily impleaded Opposite Party No. 1/ASSPL to the present complaint. From the perusal of the conditions of use and sale, it is abundantly clear that the contract of sale was exclusively entered between Complainant and the Seller/ Opposite Party No. 2, and no plausible cause of action accrued against Opposite Party No. 1/ASSPL. THE COMPLAINANT IS NOT A 'CONSUMER' OF THE OPPOSITE PARTY NO. I/ASSPL AND THUS, DOES NOT HAVE LOCUS STANDI TO FILE THE PRESENT COMPLAINT AGAINST THE OPPOSITE PARTY NO. 1/ASSPL. The complainant has no locus standi to approach this Commission and no case is maintainable against Opposite Party No. 1/ASSPL. It is established by Opposite Party No. 1/ASSPL that it merely operates an e-commerce marketplace for independent third-party sellers to host and publish details about the products or services they wish to sell or advertise. For the reasons stated above the Complainant does not fall within the definition of "consumer" vis-à-vis Opposite Party No. 1/ASSPL.
A "consumer" as defined under Section 2(7) of the Consumer Protection Act. 2019 means any person who:-
"bays any goods for a consideration which has been paid or promised or partly paid and partly promised, or ander any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or parily paid or partly promied or under amy system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose: or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and inchides any beneficiary of such services other than the person who hires or avvails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose" [Emphasis supplied)
It is prima facie evidence that the Complainant herein have not purchased any goods from Opposite Party No. 1/ASSPL, availed any service from Opposite Party No. 1/ASSPL or paid any amount of consideration to Opposite Party No. 1/ASSPL to be a "Consumer" of Opposite Party No. I/ASSPL or for that matter entangle Opposite Party No. 1/ASSPL in a consumer dispute. It is reiterated that the product was sold to the Complainants by the Seller Opposite Party No. 2 and has denied the other contents of the complaint and prayed for dismissal of the same.
3 Notice of this complaint was sent to the opposite party No. 2 but no one appeared on behalf of opposite party No. 2 and consequently, the opposite party No. 2 was proceeded against exparte.
4 We have heard the Ld. Counsel for the complainant and opposite parties No. 1 and have carefully gone through the record.
5 The case of the complainant is that he ordered to purchase the products namely Ashwagandha capsules and Shilajit tablets through online website Amazon.in i.e. website of opposite party No. 1. On 5.6.2022 at Judicial Court Complex, Tarn Taran, the complainant, ordered to purchase the said capsules and tablets through online website i.e. website of opposite party No.1 through his registered mobile number 98888-88287, and the said order was registered vide Order ID No.171-2766591-5569954, which was delivered to the complainant on 9.6.2022 at Judicial Court Complex, Tarn Taran and payment of the same has been debited from the account of the complainant. As and when the said articles delivered to the complainant, the complainant opened the delivery package from checking the products inside; and was astonished after opening the said parcels, it came to light that the seals of the bottles of the capsules as well as tablets, so delivered by opposite parties to the complainant, was damaged and in broken condition and the proof of the same is with the complainant because at the time of opening the products, the complainant made video of the said products. Please note the order details as follows for its reference;
Date of Order - 05.06.2022 vide ID No. 171-2766591-5569954
Name of the person who ordered - Elvin (Judicial Court Complex, Tarn Taran)
Bill/invoice No.DL-DEX6-1514901075-2223.
Items of products ordered: Ashwagandha capsules and Shilajit tablets
Item name and its quantity: Ashwagandha 60 capsules and Shilajit 30 tablets
Total Price: Rs.1177/-
Date of Delivery 09.06.2022.
Thereafter, the complainant contacted the opposite parties through customer care mobile number and narrated the whole incident occurred with the complainant and even show the video of the same and also requested to change the bottles of the said capsules as well as tablets but the opposite parties did not pay any heed to the genuine request of the complainant and on the contrary, quarreled with the complainant and flatly refused to replace the same to the complainant.
6 On the other hands, case of the opposite party No. 1 is that complainant placed an order for Ashwagandha 60 Capsules and Shilajit 30 Tablets vide order ID_171-2766591-5569954 from an independent third party seller i.e. My Pura Vida Wellness Private Limited having its place of business at J-4, Block B-1, Mohan cooperative Industrial Estate, Mathura Road New Delhi, Delhi, 110044 India on www.amazon.in. Again the purchase for the impugned product an invoice dated 5.6.2022 bearing Invoice Number : DEX6-311 for an amount of Rs. 1,177 was issued by Seller/ Opposite party No. 2 duly indicating its goods and Service Tax Number (GSTN) i.e. 07AACCW7540E1ZD and the permanent account Number (PAN) i.e. AACCW7540E and the permanent account it is reiterated that the tax invoice was issued by the Seller/ opposite party No. 2 and not by the opposite party No. 1/ASSPL clearly indicating that the transaction of sale was executed by and between the complainant and the seller / opposite party No. 2. True copy of the Invoice dated 5.6.2022, issued by the Seller/ Opposite party No. 2 is Annexure OP-1/2. The payment of consideration towards the impugned product was made by the complainant to the seller/ opposite party No. 2 in the nodal account set up in accordance with the RBI Guidelines bearing No. RBI/2009-10/231 dated 24.11.2009. This notification of RBI contains directions mandating opening and operation of nodal accounts, not maintained, or operated by intermediaries, for facilitating collection of payments from customers on behalf of the seller/ opposite party No. 2. The payment made in to the nodal account is not a payment made to the opposite party No. 1/ ASSPL herein. The nodal account is maintained and audited by a bank recognized for such purpose by the RBI, and not by opposite party No. 1/ ASSPL. The opposite party no. 1 / ASSPL herein is not the account holder or owner of the nodal account and cannot transact at will without restriction on the said nodal account. As per the directions from the RBI, any transaction between a buyer and an independent third party seller is executed through an independent nodal account maintained by the banks which is separate and free from the internal accounts of the seller. Based on the given RBI direction, opposite party No. 1/ ASSPL does not charge the buyers on the e-commerce marketplace the consideration paid by the buyers towards purchase on the e-commerce marketplace is paid directly to the independent third- party seller from whom the purchase is made through the nodal account. The opposite party No. 1/ ASSPL provides a “free for all” marketplace to buyers who have access to the internet, hence providing a communication and hosting network to buyers to purchase products for sale and to conduct a transaction. Copy of the RBI directions is annexed herewith and marked as Annexure- OP-1/3. The complainant contacted opposite party No. 1/ ASSPL alleging that after unboxing the parcel he found that he impugned product was damaged. Subsequent to this, Opposite Party No. 1/ASSPL internally inquired the complainant's complaint and learnt that the Impugned Product was delivered to the complainant in an intact on 09.06.2022 at the address provided by the Complainant i.e., Judicial court complex, Judicial court Taran Taran, Punjab, 143401 India. Upon receiving the Complainant's grievance the Opposite Party No. 1/ASSPL proactively acted upon the same and conducted a thorough internal enquiry and it was confirmed that the correct product for which the complainant has placed order was packed, shipped and delivered to the complainant in an intact condition. The present complaint filed by the Complainant is bad for mis-joinder of parties as the Complainant has improperly and unnecessarily impleaded the Opposite Party No. 1/ASSPL to the present complaint who is merely an intermediary. The Opposite Party No. 1/ASSPL is a mere intermediary and is not to be held responsible in the present matter. It is noteworthy that the concerns raised by the Complainant in the present complaint, i.e., allegedly damaged product, can only be addressed by the Seller/Opposite Party No. 2. The allegations leveled by the Complainant qua the Opposite Party No. I/ASSPL are not only without an iota of evidence but are based on concocted and fabricated stories and are devoid of merits. The Complainant through this complaint is only trying to obtain undue monetary gains from Opposite Party No. 1/ASSPL, by filing such frivolous complaint. The said complaint is liable to be dismissed in limine basis the false statements submitted by the complainant. The Impugned Product was successfully delivered to the Complainant in an intact condition. The Opposite Party No. 1/ASSPL operates and manages the e-commerce marketplace at www.amazon.in wherein lakhs of third-party sellers and buyers interact and conduct their transactions and as such is an 'intermediary' in terms of Section 2(1)(w) of the Information Technology Act, 2000 ("IT Act"). The Opposite Party No. 1/ASSPL's online marketplace provides users access to a range of approximately 170 million products listed / offered for sale by approximately 5,00,000 registered sellers across a broad range of categories. Any seller is free to list any product for sale and any buyer is free to choose and order any product from any independent third-party seller selling that product on the e-commerce marketplace. The only role of Opposite Party No. 1/ASSPL is to make the e-commerce marketplace user friendly for the independent third-party sellers to list necessary details of the products and for the buyers for searching and browsing through the said products. All invoices for the sale transactions between the buyers and the independent third-party sellers are tax invoices issued by such independent third-party sellers clearly indicating their unique tax identification number goods and services tax number (GSTN). All payments are made directly by such buyers to independent third-party sellers. It is significant to note that the invoice against the order was issued by the Seller Opposite Party No. 2, not by the Opposite Party No. 1/ASSPL. The Contract of Sale was executed by and between the Complainant and the Seller/ Opposite Party No. 2. Therefore, there is no privity of contract between the Opposite Party No. I/ASSPL and the Complainant. All customers who visit the e-commerce marketplace enter into a 'Conditions of Use' where there is a clear understanding of the role of Opposite Party No. 1/ASSPL with respect to all sales transactions entered by and between the independent third-party sellers and the customers. Clause 3 of the Conditions of Use categorically states the legal position of Opposite Party No. 1/ASSPL that it merely operates an e-commerce marketplace to facilitate sale transactions entered by and between the buyer and independent third-party seller. All the transactions of sale undertaken by the buyer on the e-commerce marketplace are strictly bipartite agreements between the buyer and the seller listed on the marketplace of Opposite Party No. 1/ASSPL. Further, Clause 13 of the Conditions of Use states that Opposite Party No. I/ASSPL is not liable, in any manner whatsoever, for the performance of the sale agreement executed by and between the buyer and seller on the e-commerce marketplace as the agreement of sale entered by and between the buyer and seller. The Opposite Party No. 1/ASSPL has no role to play in the same and prayed that the present complaint may be dismissed.
7 It is admitted case of the complainant that the complainant has purchased impugned product vide invoice dated 5.6.2022 bearing Invoice Number : DEX6-311 for an amount of Rs. 1,177 from Seller/ Opposite party No. 2 and payment of the same was made. The complainant has also placed on record invoice/ bill Ex. C-1 regarding the payment of Rs. 1,177/- and the plaintiff has declared in his affidavit Ex. C-7 declared that he was astonished after opening the said parcels and it came to light that the seals of the bottles of the capsules as well as tablets, so delivered by opposite parties to the complainant, was damaged and in broken condition and he also declared in his affidavit that he requested the opposite parties to resolve the matter but of no avail. In support of the written version opposite party No.1 has tendered only one page affidavit of Sh. Rahul Narayanan so of Mr. M. Narayanan authorized signatory of Amazon Seller Service Private Limited which does not contain the contents of the written version as such no evidentiary value can be attached to this affidavit . Reliance in this connection has been placed upon Tarlok Singh Vs. Punjab State Electricity Board & Others 2004(1) CLT 127 of the Hon’ble Punjab State Commission, Chandigarh wherein it has been held that allegation mentioned in the complaint not stated in the affidavit and then those not verified to the knowledge of the complainant- Verification held not proper and affidavit cannot be considered to be supporting the complaint. So the written version so filed by the opposite party No.1 has no legal effect.
8 The opposite party No. 2 has not come forward in the present case to contest the case and remained exparte and all the allegations and evidence against him remains unrebutted . The complainant has also served legal notice to the opposite parties and legal notice is Ex. C-2 and postal receipt is Ex. C-3 and C-4 but the opposite parties have not resolved the matter in question, therefore, it amounts to deficiency in service and unfair trade practice on the part of the opposite parties.
9 In view of above discussion, the present complaint is allowed and the opposite parties are directed to return Rs. 1,177/- to the complainant. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to Rs. 4,000/- as compensation on account of harassment and mental agony and Rs 3,500/- as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Commission
27.11.2024
