Order by:
Smt.Aparana Kundi, Member
1. The complainant has filed the instant complaint under section 12/14 of Consumer Protection Act, 1986 on the allegations that complainant is running a mobile shop namely Nagpal Mobile Care Centre at Village: Manu Ke, District Moga. Complainant purchased Galaxy 57 Edge Mobile Phone from opposite party on 10.12.2019 and made payment to opposite party, through account no.00015629, Branch at Punjab National Bank, Manu Ke, Tehsil, Nihal Singh Wala, District Moga. The complainant received the said mobile phone on 16.12.2019 and when complainant opened the said mobile phone in the presence of the delivery boy, he founds that mobile is out of warranty and when the IMEI number of the said mobile was checked by complainant from My Galaxy Application, it founds that warranty of the said mobile is expired and the said mobile was used set and charging of the said mobile is not accurate, complainant on the spot clicked the photographs of the said phone which is retained with complainant and complainant immediately made request for replacement of said order on Amazon application vide replacement order no.40827120099729126. On 17.12.2019, the company executive of opposite addressee came to the shop of complainant and took back the said phone with him with assurance to give New Mobile phone within 2/3 days. On 23.12.2019 a parcel sent by the opposite parties received by complainant and the same was opened in the presence of delivery boy Pavittar Singh who belongs to Bagha Purana and complainant found that the said phone was of other brand namely Micromax, which was not ordered by complainant, complainant immediately called opposite parties at Customer Care Centre and told the whole incident and registered the complaint and the whole photography and video clips of the abovesaid incident was sent to opposite party complainant through e-mail cs_reply Amazon.in and immediately refund order request was made by complainant, thereafter opposite parties call the complainant and requested complainant to give time upto 29.12.2019 for the purpose of enquiry and investigation regarding the above said incident, but with no effect. On 29.12.2019 complainant made a phone call to opposite parties and requested opposite parties to refund the said payment, but opposite parties flatly refused to refund a single penny to complainant and opposite parties further flatly refused to admit opposite parties rightful claim. Complainant also sent a legal notice dated 20.01.2020, but with no effect. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may be directed to pay the amount of Rs.49,900/- alongwith interest @1 % per annum w.e.f 10.12.2019 till its realization with regard to purchase of mobile phone Galaxy S7 Edge which was not sent by the opposite parties.
b) The amount of Rs.20,000/- be allowed to be paid by the opposite parties on account of compensation, damages, mental tension suffered by the complainant.
c) To pay an amount of Rs.20,000/- as litigation expenses to the complainant.
d) And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice.
2. Opposite party no.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the correct name of the legal entity operating the e-commerce marketplace i.e. www.amazon.in (“e-commerce marketplace”) is Amazon Seller Services Private Limited (ASSPL) having it registered address at Bridge Gateway, 8th Floor, 26/1, Dr.Rajkumar Road, Malleshwaram (W), Bangalore-560055, Karnataka, India. It is a settled principle that an individual cannot be held liable for the acts of company and hence the complainant has wrongly impleaded the authorized officer of ASSPL to the present complaint. Further alleges that the complainant had placed an order to purchase a 'Samsung Galaxy S7 Edge SM-G935F vide order bearing no. 402-18779306314768 on 10.12.2019 with the independent third party seller, i.e. Ekta Enterprises having its place of business at its place of business at Phase 1 59, Ujjawal Nagar, Silver Estate, Bareilly, Uttar Pradesh-243001 basis the listings made by Independent Third Party Seller, i.e. Ekta Enterprises on the e-commerce marketplace. The Independent Third Party Seller, i.e. Ekta Enterprises has not been impleaded as a party to the present complaint. Against the Order, a tax invoice bearing no. IN-1515 dated 10.12.2019 ("Invoice") was issued by the Independent Third Party Seller, i.e. Ekta Enterprises indicating its Income Tax Permanent Account Number ("PAN") and Goods and Service Tax Number ("GSTN") against the Invoice as AAHFE9557F and 09AAHFE9557F1Z1 respectively, clearly evidencing that the Product was sold to the Complainant by Ekta Enterprises. The payment of consideration towards the Product was made by the Complainant to the Independent Third Party Seller, i.e. Ekta Enterprises in the nodal account in the accordance with the RBI Guidelines bearing no. RBI/2009-10/231 dated 24.11.2009. For added emphasis it is stated that the payment made into the Nodal Account is not a payment made to ASSPL herein. The purpose of a Nodal Account is to hold funds on behalf of customers who make purchases on e-commerce marketplace and vendors (independent third party sellers) who transact on the e-commerce marketplace. It safeguards the interests of Customers and Sellers on the e-commerce marketplace so that payments are collected, processed and payouts, are done to relevant vendors without undue delay or interference from e-commerce marketplaces like ASSPL herein. ASSPL herein is not neither the account holder nor the owner of the Nodal Account. Thereafter, the Product was delivered to the Complainant by the Independent Third Party Seller i.e. Ekta Enterprises in an original equipment factory pack on 16.12.2019. Post-delivery of the Product to the Complainant by the Independent Third Party Seller i.e. Ekta Enterprises, the Complainant approached the customer service of ASSPL and alleged that status of the warranty of the Product received by him was expired. Upon receipt of such information, ASSPL contacted the Independent Third Party Seller, i.e. Ekta Enterprises, who agreed to accept return of the Product and replace the Product. A replacement against the Product was provided by the Independent Third Party Seller, i.e. Ekta Enterprises vide replacement order bearing order no. 408-2712009-9729126 dated 16.12.2019. Against the replacement order, a tax invoice bearing no. IN-1714 dated 17.12.2019 was issued by the Independent Third Party Seller, i.e. Ekta Enterprises indicating its PAN and GSTN against the Invoice as AAHFE9557F and 09AAHFE9557F1Z1 respectively, clearly evidencing that the replaced product was provided to the Complainant by Ekta Enterprises. Thereafter, the replaced product was delivered to the Complainant by the Independent Third Party Seller i.e. Ekta Enterprises in an original equipment factory pack on 23.12.2019. Post-delivery of the replaced product to the Complainant by the Independent Third Party Seller i.e. Ekta Enterprises, the Complainant again approached the customer service of ASSPL and alleged that he had received a mobile of Micromax company in the package delivered to him, instead of 'Samsung Galaxy S7 Edge SM-G935F'. Upon receipt of such information, ASSPL contacted the Independent Third Party Seller, i.e. Ekta Enterprises who investigated the issue raised by the Complainant. Basis its investigation, the Independent Third Party Seller i.e. Ekta Enterprises informed ASSPL that the correct product was delivered to the Complainant by Ekta Enterprises in an intact condition, and hence the allegations of the Complainant were found to be false and frivolous. Therefore, replacement was denied to the Complainant by the Independent Third Party Seller, i.e. Ekta Enterprises as the correct product was delivered to the Complainant on 23.12.2019 by the Independent Third Party Seller, i.e. Ekta Enterprises and the same was informed to the Comlainant by ASSPL on behalf of the Independent Third Party Seller, i.e. Ekta Enterprises vide an email dated 28.12.2019. Further alleges that the complainant had issued a Legal Notice dated 20.01.2020 which was duly responded to by the ASSPL by way of a response dated 24.08.2020. It is submitted that vide response dated 24.08.2020, the Complainant was duly apprised by ASSPL that the Product was sold by the Independent Third Party Seller, i.e. Ekta Enterprises and not by ASSPL. Further, the Complainant was informed that as per the information received from the Independent Third Party Seller, i.e. Ekta Enterprises, correct product was delivered to the Complainant by Ekta Enterprises in an intact condition. Therefore, replacement/ refund was denied to the Complainant by the Independent Third Party Seller, i.e. Ekta Enterprises as correct product was delivered to the Complainant on 23.12.2019 by the Independent Third Party Seller, i.e. Ekta Enterprises. Further, vide response dated 24.08.2020, the Complainant was duly apprised by ASSPL about legal position of ASSPL. It was informed to the Complainant that ASSPL merely operates an ecommerce marketplace and the products on the e-commerce marketplace are listed, sold and delivered by respective independent third party sellers, to total exclusion of ASSPL. Despite being aware of the legal status of ASSPL, the Complainant has wrongly filed the present complaint against ASSPL to extract financial gains from ASSPL by making out a false case against ASSPL, where none exists.
Hence, the complaint is liable to be dismissed for non-joinder of necessary party. Further alleges that the possibility of a different product being received in an original factory package is unheard of. It is emphatically stated that the Complainant herein in his complaint has not claimed that he had received a tampered package or that he had not received the replaced product in duly sealed original equipment factory pack. Therefore, the allegation of the Complainant that a different product was received in the factory sealed package is misconceived, wrong and denied. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. Upon notice, none has come present on behalf of Opposite Party No.2, despite service, hence Opposite Party No.2 was proceeded against exparte. However, complaint against opposite party no.3 stands withdrawn.
4. In order to prove his case, the complainant has tendered into evidence her affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C14 and closed her evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 tendered into evidence affidavit of Sh.G.S. Arjun Kumar Ex.OP/A alongwith copies of documents Ex.OP/1 to Ex.OP/9 and reply to legal notice as Ex.OP/6/B.
6. We have heard the ld.counsel for the parties and gone through the documents placed on record.
7. During the course of arguments, both the ld.counsel for the Complainant as well as Opposite Party No.1 have mainly reiterated the facts as narrated in the complaint as well as in written reply respectively. We have perused the rival contentions of both the parties. The case of the complainant is that he purchased Galaxy 57 Edge Mobile Phone from opposite party on 10.12.2019. He received the said mobile phone on 16.12.2019 and when complainant opened the said mobile phone he founds that mobile is out of warranty and when the IMEI number of the said mobile was checked by complainant from My Galaxy Application, it founds that warranty of the said mobile is expired and the said mobile was used set and charging of the said mobile is not accurate. Complainant immediately made request for replacement of said order on Amazon application. On 17.12.2019, the company executive of opposite took back the said phone with him with assurance to give New Mobile phone within 2/3 days. On 23.12.2019 a parcel sent by the opposite parties received by complainant and when the same was opened he found that the said phone was of other brand namely Micromax, which was not ordered by complainant, complainant immediately called opposite parties at Customer Care Centre and immediately refund order request was made by complainant. Thereafter the complainant made various requests to opposite parties to refund the payment, but opposite parties flatly refused to pay any amount to complainant. On the other hand, the plea of the opposite party no.1 is that Amazon Seller Services Private Limited (herein after to be referred as ASSPL) operates an e-commerce marketplace where over five lakhs independent third party sellers have listed their products for sale. 'Ekta Enterprises' is one of the independent third party sellers who has listed its products on the e-commerce marketplace operated by ASSPL. Further alleges that the complainant had placed an order to purchase a 'Samsung Galaxy S7 Edge SM-G935F vide order bearing no. 402-18779306314768 on 10.12.2019 with Ekta Enterprises having its place of business at Phase 1 59, Ujjawal Nagar, Silver Estate, Bareilly, Uttar Pradesh-243001 and the Ekta Enterprises has not been impleaded as a party to the present complaint. Against the Order, a tax invoice bearing no. IN-1515 dated 10.12.2019 was issued by Ekta Enterprises indicating its Income Tax Permanent Account Number ("PAN") and Goods and Service Tax Number ("GSTN") against the Invoice as AAHFE9557F and 09AAHFE9557F1Z1 respectively, clearly evidencing that the Product was sold to the Complainant by Ekta Enterprises and the payment of consideration towards the Product was made by the Complainant to Ekta Enterprises in the nodal account in the accordance with the RBI Guidelines bearing no. RBI/2009-10/231 dated 24.11.2009. For added emphasis it is stated that the payment made into the Nodal Account is not a payment made to ASSPL herein. The purpose of a Nodal Account is to hold funds on behalf of customers who make purchases on e-commerce marketplace and vendors (independent third party sellers) who transact on the e-commerce marketplace. It safeguards the interests of Customers and Sellers on the e-commerce marketplace so that payments are collected, processed and payouts, are done to relevant vendors without undue delay or interference from e-commerce marketplaces like ASSPL herein. ASSPL herein is not neither the account holder nor the owner of the Nodal Account. Thereafter, the Product was delivered to the Complainant by Ekta Enterprises in an original equipment factory pack on 16.12.2019. Post-delivery of the Product to the Complainant by Ekta Enterprises, the Complainant approached the customer service of ASSPL and alleged that status of the warranty of the Product received by him was expired. Upon receipt of such information, ASSPL contacted Ekta Enterprises, who agreed to accept return of the Product and replace the Product. A replacement against the Product was provided by them, vide replacement order bearing order no. 408-2712009-9729126 dated 16.12.2019. Against the replacement order, a tax invoice bearing no. IN-1714 dated 17.12.2019 was issued by Ekta Enterprises. Thereafter, the replaced product was delivered to the Complainant by the Ekta Enterprises in an original equipment factory pack on 23.12.2019. Post-delivery of the replaced product to the Complainant by Ekta Enterprises, the Complainant again approached the customer service of ASSPL and alleged that he had received a mobile of Micromax company in the package delivered to him, instead of 'Samsung Galaxy S7 Edge SM-G935F'. Upon receipt of such information, ASSPL again contacted the Ekta Enterprises who investigated the issue raised by the Complainant. Basis its investigation, Ekta Enterprises informed ASSPL that the correct product was delivered to the Complainant by them in an intact condition, and hence the allegations of the Complainant were found to be false and frivolous. Therefore, replacement was denied to the Complainant by them as the correct product was delivered to the Complainant on 23.12.2019 and the same was informed to the Complainant by ASSPL on behalf of Ekta Enterprises vide an email dated 28.12.2019. Further Legal Notice dated 20.01.2020 issued by complainant duly responded by the ASSPL by way of a response dated 24.08.2020. Further, vide response dated 24.08.2020, the Complainant was duly apprised by ASSPL about legal position of ASSPL. It was informed to the Complainant that ASSPL merely operates an ecommerce marketplace and the products on the e-commerce marketplace are listed, sold and delivered by respective independent third party sellers, to total exclusion of ASSPL. Despite being aware of the legal status of ASSPL, the Complainant has wrongly filed the present complaint against ASSPL to extract financial gains from ASSPL by making out a false case against ASSPL, where none exists. Hence, the complaint is liable to be dismissed for non-joinder of necessary party.
8. Perusal of the record shows that the complainant has sought the relief from opposite party no.1, but there is no document to prove this fact that complainant has allegedly purchased the product in question from opposite party no.1. Moreover, from the perusal of documents placed on record by both the parties clearly shows that purchase of mobile phone, replacement of the same and denial for the refund of the amount all done by said Ekta Enterprises. On the other hand the plea of the opposite party no.1 is that the specific objections raised by the opposite party are that present complaint against ASSPL to extract financial gains from ASSPL by making out a false case against ASSPL, where none exists. Perusal of the record also shows that at the later stage Ekta Enterprises was impleaded as party as opposite party no.3, but later on complaint against said Ekta Enterprises/opposite party no.3 withdrawn by ld. counsel for the complainant. In view of this, we find no deficiency in service on the part of opposite parties no.1 & 2 i.e. Amazon and Amazon Seller Services Private Limited. The cause of action of the complainant, if any arisen is against the opposite party no.3 i.e. Ekta Enterprises, but however complaint against Ekta Enterpirses has already been withdrawn by ld. counsel of the complainant.
9. Hence, the instant complaint against opposite parties no.1 & 2 i.e. Amazon and Amazon Seller Services Private Limited is not maintainable and the same stands dismissed. However, the complainant is at liberty to get redressal of his grievances against the proper party, in accordance with law. The time spent before this District Commission shall stand excluded under Section 14 of the Limitation Act in the light of the judgment of the Hon'ble Supreme Court in case titled 'Lakshmi Engineering Works vs PSG Industrial Institute reported in 1995(3) SCC 583'. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Reason for delay in deciding the complaint.
10. This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
