BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.592 of 2019
Date of Instt. 11.12.2019
Date of Decision: 02.03.2023
Dr. Ajaydeep Singh R/o 119, Defence Colony Jalandhar Punjab Pin Code 144001.
..........Complainants
Versus
1. Amazon Seller Services Private Limited, Through its manager or appropriate authority, (9O) Nos.1401 to 1421, 14th Floor Block- E, International Trade Tower, Nehru Place, New Delhi, Delhi 110019.
Also at:- Amazon India Registered Office, Brigade Gateway, 8th Floor, 26/1, Dr. Raj Kumar Road, Malleshwaram (W), Bangalore, Karnataka-560055.
2. Cloudtail India Pvt. Ltd., Farrukh Nagar Through its Manager or appropriate authority, Logistic Park LLP, Farrukhnagar District Gurgaon, Village Khalikpur, District Jhajjar Haryana-122001.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Complainant in Person.
Sh. A. K. Gandhi, Adv. Counsel for OP No.1.
Sh. Vikas K. Gupta, Adv. Counsel for OP No.2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant had purchased one 43 inch Sony Bravia TV from the website of OP No.1 on 30.09.2019. The said TV was sold by OP No.2 on the platform of OP No.1. The said TV was coming with a free OAKTER Smart home Kit offer, which was to be delivered free of cost along with the said TV. The complainant received the invoice dated 02.10.2019 of the said TV on his email In the said invoice it was clearly mentioned that the said TV is 43 inches in size and was coming with OAK TER Smart home Kit offer. When the said TV was delivered to the complainant, it transpired that the TV was only 38 inches in horizontal length instead of 43 inches. More so no OAKTER Smart home Kit as described in the website as well as in the invoice was ever delivered to the complainant. The complainant being unsatisfied with the mischief played by the OPs asked for replacement of the said TV from the OPs No.1 and 2 immediately at the time of delivery of the TV by the Amazon Courier. The complainant called the customer care helpline number of Amazon, at the time of delivery, and asked them to take back their product. But Amazon executives refused to return the TV. This was a clear violation of Amazon s promise of a free open box delivery policy, which according to Amazons website is a policy in which Open Box Inspection is a delivery service, wherein, the delivery associate will open the purchased item for your inspection at the time of the delivery to ensure you receive what you have ordered. The service is available on pre-paid scheduled delivery orders for TV, microwave, washing machine and refrigerator products. In case the product is found damaged/missing different from what you ordered, you can refuse the delivery and a refund will be credited to your account as per our Return and Refunds policy. So my complainant put a note on the courier delivery signature sheet that the free Oakter Smart home kit has not been delivered alongwith the said TV. It is pertinent here to mention that the present order made by the complainant was having a 10 days return policy as stated in the website of OP No.1. It is pertinent here to mention that the Oakter Smart home kit was being given free of cost along with the TV by Sony India and not by Amazon India. The complainant had also communicated his grievance to the executive of OP No.1 on receiving the TV, to which the executive of OP No.1 has clearly stated that the complainant is not eligible to the Oakter Smart home Kit since he had not clicked the same at the time of purchase of the said TV. It is pertinent here to mention again that the Oakter Smart home kit was being given free of cost along with the TV by Sony India and not by Amazon India. Further on 06.10.2019 & 12.10.2019 the complainant has again communicated his grievance regarding the delivery of TV which is 38 inches instead of 43 inches. Despite repeated requests by the complainant the said TV was not replaced by the opposite parties, nor the free Oakter Smart home Kit has been provided to the complainant. The services provided by the opposite parties are deficient & defective in nature and the OPs are indulging in unfair trade practices. The complainant has served legal notice dated 09.10.2019 to the OPs, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to return the said TV make Sony Bravia 43 inches and the OPs may kindly be directed to make payment of Rs.64,999/- i.e. the amount of the said TV with interest @ 18% per annum. Further, OPs be directed to pay a compensation of Rs.1,00,000/- for causing mental tension and harassment to the complainant and Rs.20,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed joint written reply and contested the complaint by taking preliminary objections that the instant complaint has been filed by the complainant raising certain allegations against the answering OP citing reference to specific provisions which have been defined and dealt with under the Consumer Protection Act, 1986 ("the Act"). Accordingly, it has become imperative for the answering OP to deal with such provisions at this stage, to purposely record its objections to the maintainability and admission of the complaint against the answering OP. For ease of convenience, provisions being replied upon and referred in the complaint are being discussed herein below:
a). Section 2 (o) of the Act –
“Service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”
Admittedly, the subject matter of the present dispute is restricted to alleged non receipt of the free OAKTER Smart Home Kit ("Free Product") with 43 inches Sony Bravia TV ("Product), which was purchased by the complainant from the Website of ASSPL i.e. www.amazon.in for Rs.59,699.46/-. On a bare perusal of the complaint, it is evident that the complainant is perturbed by non receipt of the Free Product with the purchase of the Product. It is pertinent to note that the offer for Free Product could have only be availed upon selecting the offer at the time of checkout on the Website. In absence of selecting the offer by the complainant, it is not the responsibility of the answering OP to provide the Free Product. Accordingly, the captioned complaint shall be dismissed on this ground only. It is further averred that the present complaint is liable to be dismissed on the ground of mis-joinder of parties, as the answering OP has nothing to do with the complaint so much so, that the complainant has not availed services from the answering OP but yet answering OP has been made a party to the complaint without any cause of action. It is further averred that the complainant has approached the Commission with unclean hands. The complainant is twisting the facts of the complaint to suit his best interest. On page 6 of Ex-11, it is clear the representative of OP No.1 had explained the Complainant that the Free Product was offered on the Website and the Answering Respondent has to select it in order to avail the same. The conversation between Complainant and representative of OP1 unfurls that the Complainant after understanding the whole offer related process, portrayed his acceptance of not selecting the offer at the time of checkout on the Website. It is admitted fact by the complainant during his communication with the representative of OP1 that the Product was to be measured diagonally and not horizontally. It is further averred that the complainant never contacted the answering OP regarding his grievances relating to the product within the stipulated window. It is clear that neither any specific allegation has been leveled by the complainant against the answering OP nor it has been proved. The complainant has resorted to suppression very and suggestion falsi in the complaint. The complainant has suppressed many vital facts which go to the root of this case and has needlessly impleaded the answering OP to the presents. It is further averred that the complainant has dejectedly failed to establish any reasonable and cogent grounds basing which the present complaint could be admitted against the answering OP. On merits, the factum with regard to purchase of the Sony LED TV from the website of OP No.1 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the complainant in person and learned counsel for the respective parties and have also gone through the case file very minutely.
6. The complainant has proved that he, on seeing the website and advertisement of the OPs purchased one 43 inch Sony Bravia TV on 30.09.2019, vide invoice Ex.C-1. Perusal of Ex.C-1 shows that the invoice was sent and generated by Amazon.in i.e. OP No.1 and the retailer was Cloudtail India Pvt. Ltd. i.e. OP No.2. Perusal of this invoice clearly shows that it has been mentioned that Sony Bravia 108cm (43 inches) 4K UHD Certified Android LED TV KD-43X8500f (Black) (2018 model) with Oakter Smart Home Kit Offer. The grouse of the complainant is that when he saw the advertisement for the LED, which has been proved by the complainant as Ex.C-3, there was offer of Smart Home Kit worth Rs.24,940/-, Rs.11,960/- and Rs.8480/-. There is a special mention of the fact in this advertisement ‘buy Sony Android TV and get a Smart Home Kit worth upto Rs.24,940/-’. The complainant has purchased the TV through Amazon from Cloudtail India Pvt. Ltd.
7. The contention of the OPs that there is no relationship of consumer and service provider between OP No.1 and complainant as the OP is mere intermediary between buyer and seller, but this contention is not tenable as though the OP provided a platform to the complainant to purchase the LED from the concerned company/OP No.2. But the fact remains that the complainant has made the payment to the Amazon for onward giving to the seller/manufacturer as the OP was intermediary of the platform provided for both seller and buyer. Amazon cannot escape or run away from its liability on the ground that there was no privity of contract between the buyer and the seller. As per record and the documents, it is proved that the entire transaction and correspondence was done through the Amazon online portal. It is proved that the complainant purchased the product through Amazon website, therefore there exist the relationship of a consumer and the service provider between the complainant and the OP No.1. The OP No.1 opted to provide the services of selling LED by giving online platform through their website, therefore the complainant becomes consumer. As per Ex.C-1, the LED was sold by OP No.1 i.e. Amazon to the complainant. Despite the request made for number of times by the complainant, the issue of specification has not been resolved by the OPs. There is no denial by the OPs that the complainant did not ask for its specification. Even in the emails, this facts was never denied by the OP. So, this fact is proved that he placed order for this Sony Bravia LED with offer of Oakter home kit.
8. The contention of the OP No.2 is that the free product was offered on website and complainant was to select in order to avail the same and in conversation between the complainant and representative of OP No.1, the complainant has understood and has accepted that he did not select the offer at the time of check out on the website. Perusal of the advertisement nowhere shows that the purchaser or the customer was to select the free offer while purchasing the LED. It was with the home kit as per Ex.C-3 the advertisement and as per Ex.C-1 i.e. the invoice, the product was sent with Oakter Smart Home Kit offer. Had it been not there, then it should have not been mentioned in the invoice in column No.1 under the head of ‘Description’. Though, the OP No.2 has alleged that it was the website who has offered it, but as per the documents produced on record, it is the company Sony Bravia which has offered to provide Smart Home Kit, if anyone buys Sony Android TV. So, it was the duty and responsibility of the OPs to provide smart home kit with the LED when the same was ordered by the customer/the complainant. This is clear cut deficiency in service and unfair trade practice on the part of the OPs.
9. Another grouse of the complainant is that he ordered for 43 inches LED, but when he received the same, it was not 43 inches rather it was 38 inches in horizontal length instead of 43 inches. Nothing was mentioned in the advertisement nor in the website that the TV/LED is to be measured horizontally and not diagonally. They have mis-represented about the description regarding the product.
10. The contention of the OP No.2 is that the complainant during his communication with the representative of OP No.1 has admitted that the product was to be measured diagonally and not horizontally. He has referred the transcript of the communication between the representative of the OP No.1 and complainant dated 06.10.2019 at Page No.2 of 9 of Ex.C-10. It has been alleged by the OPs that the complainant has accepted the product, opened the seal and did not return the product. The complainant has used the product, therefore the product cannot be replaced nor the amount can be refunded as it is the fault of the complainant and not of the OPs.
11. As per Ex.C-1 the invoice, the Sony Bravia 108cm (43 inches) was purchased by the complainant for Rs.64,999/- on 02.10.2019. This product was sent by OP No.2 i.e. Cloudtail India Pvt. Ltd. Ex.C-4 is the screen shot of the website of OP No.1 which also shows that Sony Bravia 108cm (43 inches) TV and size name is 43 inches. Nothing has been mentioned in this advertisement or website whether the same is to be measured horizontally or diagonally. Simple fact has been mentioned about the size i.e. 43 inches. Ex.C-5 is the email dated 09.10.2019 sent by the complainant to the OPs wherein he has clearly mentioned that about 3 days ago, he wrote to Jeff Bezos about his problem, but his problem has not been solved. Again he sent another email to the OP on 10 October, then on 11 October giving the detail of the problem suffered by him regarding the non-receipt of free home kit and the receipt of the different product of 38 inches LED instead of 43 inches. He sent emails on 29 October and on different dates in the month of October. He has sent number of emails to the OPs. He has also referred the communication between the executor of Amazon customer care and the complainant dated 05.10.2019 i.e. after 3 days of its purchase and has specifically mentioned that he has not switched it on and all the accessories of the TV are there. He has also mentioned that he has further informed the executive of the OPs that nobody has come for the installation of the TV. The executor has assured him to wait and told him that the persons will come for installation and check the same. The complainant has proved on record the conversation Ex.C-9 to Ex.C-11. This conversation is all regarding the free home kit. The complainant has specifically alleged that on measurement he found that the TV is 38 inches horizontally and diagonally it is 43 inches. The executor of the OPs have stated on page No.12 of the conversation that it is visible on the website that it is diagonally 43 inches. Perusal of the screenshot of the advertisements from the website filed by the complainant Ex.C-4, Ex.C-16 and Ex.C-17 from Page No.1 to 37 show that the word diagonal 43 inches is visible on the screen and this is available on 16 August 2021, whereas the complainant has purchased the LED on 02.10.2019, when it was nowhere mentioned as per Ex.C-4 that the display is diagonal 43 inches. So, this is clear cut mis-representation regarding the product. As per Ex.C-2, the item i.e. the LED TV Sony Bravia 108 cm is eligible for free replacement within 10 days of delivery, in an unlikely event of damaged defective or different or wrong item delivered to him. The case of the complainant is very much covered under this condition. The product ordered was for 43 inches whereas it was sent of 38 inches which is different item. It was nowhere mentioned that whether it is to be measured horizontally or diagonally. This is the OPs who have kept the customers in dark by not mentioning the correct measurement in the advertisement. The complainant has immediately after few days contacted the OPs and brought the fact of wrong product and non-supply of home kit to the notice of the OPs, but to no effect. The complainant has alleged that he asked the delivery boy that he does not want to take the delivery as the same is without the home kit, but the delivery boy did not agree and forcibly gave the product to the complainant. Immediately after the receipt of the product, the complainant tried to return the product, but the OP did not pay any heed to his request. So, the complainant has fully proved the deficiency in service and unfair trade practice on the part of the OPs and thus, the complainant is entitled for the relief.
12. In the light of above detailed discussion, the complaint of the complainant is partly allowed and both the OPs are jointly and severally liable for the deficiency in service and are directed to refund the price of the LED i.e. Rs.64,999/- with interest @ 6% per annum from the date of purchase i.e. 30.09.2019. The complainant is directed to return the LED to the OPs at the time of receiving the award amount against receipt. Further, OPs are directed to pay a compensation of Rs.10,000/- to the complainant for causing mental tension and harassment and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
02.03.2023 Member Member President
