CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

      UdyogSadan, C – 22 & 23, Institutional Area

              (Behind Qutub Hotel)

     New Delhi – 110016

       Case No.271/2018

SHARAD KUMAR

S/O LATE RAGHUBIR SINGH

C-807, DEBI CAMP,

TAJPUR PAHARI, BADARPUR,

NEW DELHI-110044…..COMPLAINANT

Vs.

1. RAGHUVIR CORPORATION

PLOT NO. 6, 5^TH FLOOR, ROYAL TOWNSHIP,

NEXT TO BALAJI TRANSPORT, SAROLI,

SURAT- 395010 (GUJARAT)

2. AMAZONE ADDRESS

1. AMAZON SDEA

A-43, GROUND FLOOR,

MOHAN COOPERATIVE INDUSTRIAL ESTATE,

NEW DELHI, DELHI 110044

2. AMAZON INDIA WAREHOUSE

49, BLOCK B,

MOHAN COOPERATIVE INDUSTRIAL ESTATE,

BADARPUR, DELHI 110076

3. AMAZON FCA

33, BLOCK B,

MOHAN COOPERATIVE INDUSTRIAL ESTATE,

BADARPUR, DELHI 110076

4. SDEE, AMAZON SELLER SERVICES PVT. LTD, DELHI

A-28, BLOCK B-1, BLOCK E,

MOHAN COOPERATIVE INDUSTRIAL ESTATE,

BADARPUR, DELHI 110076

5. AMAZON WARE HOUSE

A 28 RED BUILDING

27, BLOCK B,

MOHAN COOPERATIVE INDUSTRIAL ESTATE,

BADARPUR, DELHI 110076                     …..RESPONDENTS

Date of Institution-28.12.2018

Date of Order-29.09.2023

         O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on part of OP in not refunding or replacing the defective product sent to the complainant.

2. The complainant ordered a Hans lighting Multicolour Ceiling Fan with light, five blades, 42 inch vide order ID No.403-7480140-0362703 for  Rs.4,899/-. The fan in question was delivered on 18.10.2018 and payment was made in cash. The complainant on opening the packing found that out of four lights, three were broken. He sent a replacement/refund request to OP2. Within three hours, a representative of OP2 came and gave a refund/replacement time-line receipt/slip dated 18.10.2018. The representative also assured the complainant that the fan will be replaced within 4 to 5 days.

3. The complainant submits that he contacted OP2 several times and was given an assurance that the fan will be replaced soon. Complainant prays for replacement of fan or refund of cost with interest @24% per annum, compensation of Rs.1,00,000/- and litigation expenses amounting to Rs.30,000/-.

4. Notice was issued to OPs. OP1, the seller/dealer, failed to appear and was proceeded ex-parte vide order dated 08.03.2019.

5. OP2 in its reply, has submitted that it is not a seller. OP2 provides only online market places where independent third party sellers can list their products for sale and the seller themselves are responsible for their respective listings and products on the website. OP2 also submits that the complainant does not fall within the definition of consumer vis a vis OP2. There is no privity of contract between the complainant and OP2. The relationship between OP2 and OP1 is on a principle to principle basis.

6. OP2 has relied on the Terms and Conditions of Use and Sale. OP2 has also submitted that it is entitled to exemption of liability being an intermediary under Information Technology Act, 2000.

7. On merits, OP2 stated that the dispute is restricted to the alleged quality of Hans Multicolour Ceiling Fan sold by an independent third party. OP2 is merely a facilitator.  OP2 admits that complainant has raised return replacement request with the customer service team but never mentioned any kind of damage in the delivered product. It is alleged that complainant was requested to verify card details, name, contact number and email address etc. As the complainant could not verify the payment details, a suspicion of him not being a genuine customer was created.

8. OP2 has relied on judgments wherein it was held that the OP2 in an online market place and is not liable for manufacturing defects. OP2 prays for dismissal of the complaint.

9. Complainant has filed replication in consonance of the averments made in the complaint.

10. Complainant has filed evidence by way of affidavit and has exhibited the following documents:

1. Copy of the product order is exhibited as Ex.CW1/1.
2. COD (Cash On Delivery) receipt and the packing slip are exhibited as Ex.CW1/2 and Ex.CW1/3.
3. Copy of the email is exhibited as Ex.CW1/4.
4. Copy of refund/replacement timeline slip is exhibited as Ex.CW1/5.
5. The complaint is exhibited as Ex.CW1/A.

11. OP2 has filed evidence by way of affidavit and has exhibited the following documents:

1. Legal and the letter of sub-delegation of authority are exhibited as Ex.OP-2/1(Colly).
2. Copy of the conditions of the sale is exhibited as Exhibit-C.
3. Copy of the “Conditions of Use and Sale” is exhibited as Ex.OP2/2(Colly).

12. The Commission has gone through the pleadings of the parties and the material on record. It is admitted  by complainant and OP2 that complainant has placed an order on 13.10.2018 for a Hans lighting Multicolour Ceiling Fan with light, five blades, 42 inch vide order ID No.403-7480140-0362703 with payment to be made on COD (cash on delivery) basis. Invoice dated 13.10.2018 for Rs.4,899/- was generated by OP2 in the complainant’s name.

13. The complainant has also annexed a return pick up instruction from OP2. The refund replacement order and time line dated 18.10.2018 is as follows:

Your return pick-up is scheduled for: Thursday, 18 Oct, 2018, 07:00-13:00 The phone number we’ve given to the carrier for this pick-up is 9212261711.

Refund/Replacement timeline:

Pick up date: 18.10.2018.

                      -1 Business-2-4 Business-

                        -Max. Timeline-5 Business Days-

In case you do not receive your refund/replacement within the above mentioned timeline, please contact us, your Credit/debit card issuer or your bank for more information.

14. OP2 has submitted that complainant was requested to verify card details, contact number and email. OP2 has not filed any proof/email/letter wherein the complainant was requested to verify the aforementioned details.

15. It is unequivocally evident that OP2 is actively engaged in the business of furnishing services through its online platform, for the purpose of facilitating interactions between prospective buyers and sellers. OP2 serves as a conduit for communication between these parties, thereby facilitating the establishment of contracts for the sale and purchase of movable goods. Given that this represents OP's declared business interest, it is impermissible for OP to assert that it renders a service purely gratuitously, devoid of any corresponding consideration. It is undisputedly not within the purview of OP's representation to claim charitable status in its e-commerce activities, wherein it derives no commercial benefit for itself. Consequently, we reject OP's assertion that the complainant fails to meet the definition of a consumer as stipulated Consumer Protection Act. Consequently, the complainant possesses the requisite legal standing, or locus standi, to initiate a complaint against OP

16. OP has relied on Section 79 of Information Technology Act 2000 which exempts the liability of any intermediary. OP has not disputed the delivery and pick-up of the product in question. OP has not disputed communication with the complainant. Irrespective of the terms and conditions of the vendor/seller, an Agreement between the OP and seller casts an inherent responsibility on the part of OP, who being a facilitator, to provide all necessary support services expected by the customers. These services encompasses logistical assistance and payment facilitation to ensure customer satisfaction and effective resolution of the concerns raised by the complainant consumer and the user of e-commerce platform of OP. The consumer/user/complainant purchases through online portal trusting the services of OP and the complainant customer has no direct interaction or privity of contract with the seller. The present case is not about the product liability or defect in product but liability for the product which was picked up for replacement/refund

17.  Hon’ble National Commission in Rediff.Com India Limited vs Ms. Urmil Munjal 2013(3)CLT79(NC) has observed that:

• In the background of the above contention, it needs to be noted that the District Forum did not hold the RP/OP liable for any defects in the goods supplied, but for failure to inform the Complainant about the manner in which defective goods were to be returned to their seller. The District Forum has observed:-
• 4. The main allegation of the complainant against the opposite party is that the opposite party failed to inform the complainant as to how the items received by the complainant are to be returned to the seller. Since the opposite party was facilitator between the seller and buyers as mentioned in the terms and conditions for Rediff Shopping Anneure-OP1 in the column online Shopping Platform Annexure-OP1-A, so it was the duty of the opposite party to inform the complainant as to how the goods are to be returned to the seller. A letter was issued through the opposite party to the complainant Annexure-C1 according to which the seller had undertaken to replace the produce at no cost to the buyer if the buyer inform the seller within 30 days of the delivery of the order, which shows that had the opposite party informed the complainant about the procedure and from the goods purchased by the complainant through the opposite party are to be returned, the complainant would have taken the benefit of the facility given by the seller under Annexure-C1. Although the opposite party did not charge any price from the complainant from mediating between the seller and the complainant yet it is implied that the opposite party which was giving service to the seller to invite buyers to purchase the goods is a service as contemplated under the provisions of Consumer Protection Act and the complainant has locus standi to file the complainant against the opposite party.

We find that the view taken by the fora below is completely in line with the admitted position of the RP/OP. In para 2 of its written response before the District Forum, it is clearly stated that the respondent company is engaged in business of providing services through its internet portal (www.rediff.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of movable goods. If this is the declared business interest of the RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of RP/OP that it is a charitable organisation involved in e-commerce, with no business returns for itself. We therefore, reject the contention of the revision petitioner that the respondent/Complainant is not a consumer of the revision petitioner within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986.

18. In the light of discussion above, it is clear that OP2 services are clearly covered under Consumer Protection Act. OP2 has admitted the delivery of the product in question. OP2 has also admitted that complainant has raised return/replacement request. OP2 has also admitted that complainant was requested to verify card details, name, contact number and email address. However, OP2 is completely silent about the pick-up of the product. The refund replacement slip clearly shows that pick up date was 18.10.2018. The online message/return order also states that return pick up was scheduled for 18.10.2018. Moreover, the refund replacement timeline shows that the refund/replacement will be initiated and completed within maximum time period of 5 business days. OP2 is completely silent as to what happened to the product after pick up. No explanation/ clarification/ intimation regarding the pick-up has been provided to the complainant or any submissions were made in this regard by OP2 in their reply in this Commission.

19. Thus, OP2 is liable for the product which was lost in transit when it was picked up for replacement/refund. Hence, we find OP2 guilty of deficiency in service and direct OP2

1. To refund Rs.4,899/- along with 7% interest p.a. from the date of invoice till realization.
2. To pay Rs.10,000/- as compensation for mental harassment, agony and physical inconveniences.
3. To pay Rs.5,000/- towards litigation expenses.

20. This order be complied with within 90 days from the date of the order.  This entire amount is payable to the complainant within a period of 90 days from the date of order failing which the entire amount will further carry an interest @9% per annum till it is paid to the complainant.

21. File be consigned to record room.