AMAZON WORLD TRADE CENTRE. V/S MS.MAMTA RANI. - Consumer Court Case

Haryana

Panchkula

CC/311/2020

MS.MAMTA RANI. - Complainant(s)

Versus

AMAZON WORLD TRADE CENTRE. - Opp.Party(s)

VANEET MITTAL & AMIT GUPTA

19 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

Consumer Complaint No	:	311 of 2020
Date of Institution	:	09.10.2020
Date of Decision	:	19.02.2024

Ms. Mamta Rani w/o Sh. Bhupinder Singh, R/o Plot No.400, Industrial Area, Phase-1, Panchkula, Haryana

….Complainant

Versus

1. Amazon Seller Services Pvt. Ltd., Brigade Gateway, Eighth(8^th) Floor, 26/1, Dr.Raj Kumar Road, Malleshwaram(w), Banglore, 560055, Karnataka, India through its Manager.

2. Amazon Seller Services Pvt. Ltd. Brigade Gateway, Eighth(8^th) Floor, 26/1, Dr.Rajkumar Road, Malleshwaram(w), Banglore, 560055, Karnataka, India through its Chairman.

3. Primarc Pecan Retail, #80, Bajrurr, Village-Rupnagar, Anandpur Sahib, Punjab-1400119 (India) through its Manager.

..….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before: Sh.Satpal, President.

Dr.Sushma Garg, Member

Dr.Barhm Parkash Yadav, Member

For the Parties: Sh. Vaneet Mittal, Advocate, for the complainant.

None for OPs No.1 & 2.

OP No.3 given up vide order dated 12.01.2021.

ORDER

(Satpal, President)

1. The brief facts, as alleged, in the present complaint are, that the order No.406-7147514-7557914 was placed by the complainant on the website of OP N o.1 for the delivery of two items i.e. Veet Sensitive Touch Expert Trimmer and OSIM Ustiletto Electric Foot Massager for pain relief(white). The total cost of the said two products was Rs.40,999/- out of which the cost of OSIM Ustiletto Electric Foot Massager for pain relief(white) was Rs.39,000/-. The complainant had made the payment towards the cost of both the products on the date of booking i.e. 28.05.2020. It is stated that the said items were delivered to the complainant’s friend, and on opening of the packaging of the product i.e. OSIM Ustiletto Electric Foot Massager for pain relief(white), the same was found in torn condition at various places and the packaging was found damaged being eaten by rats. It is stated that the product i.e. OSIM Ustiletto Electric Foot Massager for pain relief(white) was not in a usable condition and as such, the request was made by the complainant’s friend namely, Sh.Himanshu Bansal to the office of the Ops No.1 & 2 to replace the said product as the packaging was damaged and torn at many places and was not in a usable condition. It is stated that the complainant and her friend had, on many occasions, called the customer care of Ops No.1 & 2 to replace the said product i.e. OSIM Ustiletto Electric Foot Massager for pain relief(white) but no heed was paid to their request. It is stated that an email was sent on 15.06.2020 mentioning specifically therein that the complainant had been made to wait without redressing her grievance. On 16.06.2020, an another email was sent to Ops seeking the resolution of the issue pertaining to the damaged product namely, OSIM Ustiletto Electric Foot Massager for pain relief (white). It is stated that an email was received on behalf of the OPs No.1 & 2 on 16.06.2020, wherein it was mentioned that the process of refund of Rs.39,000/- had been initiated, which would be credited within 3-5 days. It was also mentioned in the said email that there was no need to return the said product as the product was not returnable and thus, the same could be disposed of at the end of the complainant. It is averred that no response was received till 24.06.2020 qua the refund of the price of the damaged product and accordingly, an another email was sent to Ops No.1 & 2 on 24.06.2020 to enquire about the status of the case. It is stated that the complainant’s friend was shocked to receive the email from the office of OPs on 24.06.2020, wherein it was mentioned that the product as delivered to the complainant was in intact position and thus, the refund was declined. A legal notice was sent to OPs on 14.07.2020 but to no avail. Due to act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2. Upon notice, the OP No.1 & 2 appeared through counsel and filed written statement raising preliminary objections that the complainant has incorrectly impleaded “Amazon World Trade Centre, through its Manager” as OP No.1 and OP No.2 in the instant complaint, whereas the entity operating the e-commerce marketplace i.e. www.amazon.in (“E-commerce marketplace”) is Amazon Seller Services Private Limited(“ASSPL/OPs”) having its registered address at Brigade Gateway, 8^th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram(W), Bangalore-560055, Karnataka, India. It is stated that the role of OPs no.1 & 2 is merely of a facilitator, which operates e-commerce market place to facilitate sale transactions between the buyer and 3^rd party seller. The OPs No.1 & 2 had merely acted as an intermediary and as per Section 79 of the IT Act, no liability can be fastened upon it as exemption from the liability of intermediary has been provided vide the said section of IT Act. Under the heading of “brief facts”, it is submitted that the sale transaction was entered between the complainant and the independent 3^rd party seller i.e. OP No.3 to the total exclusion of ASSPL i.e. OPs No.1 & 2. It is submitted that upon receipt of such information from the complainant, ASSPL/OPs on behalf of the complainant contacted the independent Third party seller i.e. Primarc Pecan Retail Private Limited(OP No.3) and informed about the grievances of the complainant. The independent third party seller i.e. Primarc Pecan Retail Private Limited informed ASSPL/OPs that after the investigation conducted by the independent Third party seller, it was found that the product was delivered to the complainant in an intact condition; therefore, the independent third party seller i.e. Primarc Pecan Retail Private Limited(OP No.3) denied any refund/ replacement for the same. The same was informed to the complainant on behalf of the Independent Third party seller i.e. Primarc Pecan Retail Private Limited vide email dated 30.06.2020. It is submitted that the complainant is an abusive user of the e-commerce marketplace of ASSPL/OPs, wherein he has time and again demanded concessions from various independent third party seller listed on the e-commerce marketplace of ASSPL/OPs on one pretext or the other, which shows that he has been an abusive user of the e-commerce marketplace, the details, whereof, has been given at serial no.1 to 8 of sub para Vlll of Para No.1 under the heading of “brief facts”. The complainant had purchased a product namely “OSIM Ustiletto Electric Foot Massager for Pain Relief(White) B07H2GC6MP(HPCA19638)” (Product) vide Order ID-406-7147514-7557914(Order) on 28.05.2020 from the independent third party seller, namely, Primarc Pecan Retail Private Limited(OP No.3) (“Independent Third Party Sellr”)on the basis of the listings made on the e-commerce marketplace operated by ASSPL/ OPs. The ASSPL merely provides an e-commerce marketplace for the transaction of sale that takes place between an independent third party seller and a buyer. It is stated that a product ordered by any buyer with any independent third party seller on the e-commerce marketplace of ASSPL is packed, sealed, shipped and delivered to the buyer by the independent third party seller alone with no role assigned to ASSPL. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OPs No.1 & 2 and as such, the complaint is liable to be dismissed(OPs No.1 & 2) and thus, no liability can be fastened upon the OPs No.1 & 2.

3. The OP No.3 was ordered to be given up vide order dated 12.01.2021 on the basis of the statement made by the learned counsel for the complainant of even date.

4. Replication to the written statements of the OPs No.1 & 2 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

5. To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-10 in evidence and closed the evidence by making a separate statement. On the other hand, the OPs No.1 & 2 did not submit its evidence in shape of affidavit along with documents etc. despite availing several opportunities; accordingly, its evidence was closed by the Commission on 14.10.2022.

6. We have heard the learned counsel for the complainant and gone through the entire record including the written arguments filed by the learned counsel for complainant, carefully and minutely.

7. During arguments, the learned counsel for the complainant reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) and contended that the package containing the OSIM Ustiletto Electric Foot Massager for pain relief(white) was found damaged, which was delivered by OPs in response to order no.406-717514-75579-14 dated 28.05.2020 as placed by the complainant on the website of OPs No.1 & 2, namely, www.amazon.in. It is argued that the pictures/images of the said damaged product were shared with the OPs No.1 & 2 by the complainant’s friend vide email dated 08.06.2020. It is contended that an email was received from customer services of OPs No.1 & 2 on 16.06.2020 informing that refund process had been initiated and that the amount would be credited by 24.06.2020. The learned counsel argued that despite the assurance qua refund of the cost price of the damaged product i.e Rs.39,000/- by OPs No.1 & 2 by email dated 16.06.2020, the refund was declined by OPs No.1 & 2 vide email dated 24.06.2020. It is contended that the decision taken by the Ops No.1 & 2, qua not refunding the amount of Rs.39,000/- pertaining to the damaged product was not valid and justified and thus, prayed for acceptance of the complaint by granting the relief as claim for in the present complaint.

8. On the other hand, the Ops No.1 & 2 have contested the complaint by raising preliminary objections as well as on merits. The maintainability of the complaint has been disputed on several grounds, which are summarized as under:-

That the OPs No.1 & 2 neither sell nor offer to sell any product and merely provides an online marketplace where independent third party sellers can list their products for sale.
That the OPs No.1 & 2 are neither responsible for the products that are listed on its Website by various third party sellers nor does it intervene or influence the customers in any manner, whatsoever. The sellers themselves are responsible for their respective listings on the Website including all representations and warranties for the products/merchandise sold by them without any liabilities on OPs No.1 & 2.
That the OPs No.1 & 2 is not involved in the sale transaction between the complainant and OP No.3 and that the contract of sale of product on its website, namely, www.amazon.in is strictly a bipartite. It is submitted that the role of OPs No.1 & 2 is merely an facilitator between the consumer and the seller and as such it had acted as an intermediary through it web interface who is exempted from the liability in view of the provisions as contained in Section 79 of Information Technology Act, 2000.
That the complainant does not fall under the category of consumer qua OP No.1 and further, there is no privity of contract between the complainant and OP as no consideration amount was received by OPs No.1 and 2 from the complainant.

Reliance has been placed on the following case laws:-

Bhagwan Singh Shekhawat Vs. M/s R.K.Photostate & Communication & Ors. (RP/4089/2012) NC.

M/s Pritul Machinery & Anr. Vs. Anand Bahuguna (RP/2400/2012) NC.

V.Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr.2010(5) SCC 513.

9. On merits, the complaint is contested on the following grounds:-

i. That the product in question was delivered in an intact condition as informed by the seller i.e. OP No.3.

ii. That the complainant was an abusive user of the e-commerce market place as she was found lodging the return request on several occasions, the details, whereof, have been mentioned at serial no.I to IX of Sub Para 8 of Para 1 of the written statement under the heading of “Brief Facts”.

10. The aforementioned pleas disputing the maintainability of the complaint are not tenable in view of the fact that the role of OPs No.1 & 2 in the entire transactions commencing from the placing of order No.406-7147514-7557914 by the complainant on its website till the delivery of return request vide email dated 24.06.2020, is not merely of a facilitator or intermediary as alleged by them. Admittedly, the order No.406-7147514-7557914 was placed by the complainant on the website, namely, www.amazon.in belonging to OPs No.1 & 2. The return request was made at the customer care of OPs No.1 & 2, which was initially accepted vide email dated 16.06.2020 but, later on, declined vide email dated 24.06.2020. Therefore, the role of OPs No.1 & 2 was not merely of a facilitator and intermediary.

11. Now adverting to the defence version as taken in the written statement, we find that the return request of the product was initially accepted by way of refunding the amount of Rs.39,000/- by the official of OPs No.1 & 2 vide email dated 16.06.2020, which for the sake of clarity and convenience, Annexure C-5, which is reproduced as under:-

I’m sorry to know about the problem you have faced with the product “OSIM Ustiletto Electric Foot Massager for pain relief(white)“ with order No.406- 7147514-7557914.

To help you with the matter I have initiated the full refund of Rs.39,000/- in your original payment mode and the amount will eb credited within 3 to 5 business days(excluding Saturday and Sunday and bank holidays, as per bank policy) by 24 June, 2020. Usually refund gets reflected much earlier than the time frame I have mentioned.

Also, I have taken this issue as a strong feedback and we will work on this issue to prevent such incidents in future.

As this is a non-refundable product there is no need to return the item to us. You may dispose it at your convenience.

Thanks for your cooperation,

Warm Regards,

Ehteshan H

Amazon.in Customer Service

12. On 24.06.2020, an email was sent by customer services of Ops No.1 & 2 declining the refund or replacement of the product.

For the sake of clarity and convenience, the said email (Annexure C-9) is reproduced as under:-

This email is in reference to your refund/replacement request for the product that you had informed were damaged/defective in your order no.406-7147514- 7557914.

Our team conducted an investigation to determine if the item(s) you received was damaged/defective. Based on the results of the investigation, we will not be able to provide you a refund/replacement for this item.

You can contact us through live medium for better understanding of the issue.

You can find most frequent customer queries at our help section:

Thank you for your understanding

Ward Regards,

Arshad

Amazon,in Customer Service.

13. As per above email, the refund request was declined on the basis of some investigation conducted by the Ops team. However, no such report of investigation or inquiry is placed on record by Ops to substantiate and corroborate their version to show that the product in question was delivered in intact condition. No evidence, much less cogent, credible and adequate, has been placed on record on behalf of the OPs No.1 & 2 in support of their defence version. Several opportunities were given to OPs No.1 & 2 but they preferred not to submit any evidence on record in support of their version and accordingly, the opportunity to submit evidence by them, was closed by the Commission on 14.10.2022. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

14. On the other hand, the complainant has placed on record the photos of damaged product in question as Annexure C-3(colly), which were shared with OPs No.1 & 2 and on the basis of the same, the refund request was accepted by Ops No.1 & 2 vide email dated 16.06.2020 (Annexure C-5) and thus, the complainant has well proved that the Ops No.1 & 2 had delivered the damaged product.

15. As a result of above discussion, we conclude that OPs No.1 & 2 were deficient while rendering services to the complainant for which they are liable, jointly and severally, to compensate her.

16. As a sequel to the above discussion, we partly allow the present complaint with the following directions against OPs No.1 & 2:-