Sri Partha Kumar Basu, Member

The complaint case is filed on 27.02.2023 which is regarding dispute about functioning of a Pulveriser Machine after purchase by the complainants against the OPs for deficiency in service under the Consumer Protection Act 2019.

Gist of the complaint as averred in the petition is that the complainants being attracted by the OP-1 Company M/s Amazon Retail India Pvt. Ltd. (Amazon) advertised in their website placed a purchase order on 07.02.2022 for a Master machine Pulverizer of 3 HP Automatic 2 in 1 domestic atta chakki / flour mill / atta maker / masala grinder for a total amount of Rs.20,999/- against an invoice dated 07.02.2022 which was being paid by the complainants through ICICI Bank (OP2) Credit Card with an EMI @ Rs.1018.07/- for 24 months that was delivered to the complainants. After opening of the box containing the Pulveriser Machine no damage mark on the product was found by the complainants. But the machine did not get operational which was informed by the complainants to the OPs by calling over phone and by sending photos and videos who arranged to send a capacitor for replacement in the said machine. But even then the machine did not commence working. Again the complainants sent photo and videos with a return request to Amazon Customer Care Executive (OP-1) which was approved by the OP-1. Next day, the OP representative visited the complainants to collect back the machine on a motor bike but being unable to carry the machine on a motor bike promised to come back next day with better arrangements to pick up the machine. But the OP  never turned up thereafter neither responded to the repeated calls from the complainants. Meanwhile in the account of the complainants in the site of the OP-1 Amazon, it was displayed that the return window got closed on 18.02.2022. It was also noticed by the complainants on 27.02.2022 at 16.09 hrs. that the OP-1 Amazon sent a communication to the supplier company M/s Master Machines (OP-2) stating inter alia that OP1 have been contacted by their mutual customer (complainants) regarding the order placed on OP2 - for returns and refunds, as the Pulveriser machine had not been working. It was also mentioned in the remarks of OP1 (addressed to OP2) to provide resolution and research the issue and contact the customer. Further, the OP-1 advised OP-2 to reply to their e-mail and work out the disputes On the same day on 27.02.2022 at 16.18 hrs. the OP-2 supplier claiming inter-alia that they had been sending best of the quality of products to customers after quality control checks with an assurance that the product not be a damaged one. The OP-2 supplier also assured that while facing any issue, the customer should sent photo and video which can be rectified and there should not be any need to return the equipment. Subsequently, on 03.03.2022 the OP1 Amazon replied to customer stating that they have accepted the return requests and once the OP-2 supplier receives back the Pulveriser machine, the OP-1 Amazon would refund the purchase amount to the complainants / customer at their original payment mode. To this, the OP2 supplier replied on 14.03.2022 that as the product was delivered 35 days back, it would not be possible to take the product back after using the product. On 18.03.2022 the OP-1 Amazon replied to the complainants having accepted the return request and once the OP-2 supplier receives back the machine, the refund by OP1 would be processed in favour of the complainants. But on 19.03.2022, the OP-2 supplier communicated and maintained their stand with a refusal to take back the machine on the ground that the same was issued more than 30 days before and insisted the complainants / customer to continue to use the machine with a promise to resolve any future issue, crops up, if any. The OP-2 supplier also tried to tutor the complainants how to use the machine but never took back the product on return basis and thereby harassed the customer with malafide intention. On 24.03.2022, the OP-1 Amazon stated that the refund has been initiated and was forwarded to OP-2 supplier on 26.03.2022, but the OP-2 maintained their earlier stand of refusal. 

The complainants stated that they have invested their hard earned money to purchase the pulverizer machine to help their old aged family members which did not work due to defects but the OPs did not bother to send any technician to check the said machine and refused to take back the same blaming that the machine was used for 45 days, although they received photos and videos of the same and there was no usage of the machine by the complainants as alleged by the OP-2.  Moreover, the petitioners have to pay EMI to the bank for purchase of the machine but without any output from the machine. The complainants alleged that such an act of malpractice by the OPs are unfair trade practices and deficiency in services. The petitioner prayed for replacement of the said defective machine with a new one of equivalent model along with a fine for delay on per day basis alongwith a compensation of Rs.50,000/- for mental pain and agony and a litigation cost of Rs.10,000/-.

The complaint petition (Pg.1-3) is annexed with exhibits through running page from 4 to 26 by enclosing the invoice, correspondences amongst parties etc. under a firisti. 

The complaint case was contested by OP-1 Amazon which is an e-commerce platform, who appeared but did not file Written version. The OP-2 supplier of the machine and OP-3 ICICI Bank did not appear.   Hence, as per order dated 07.07.2023 the complaint case proceeded ex-parte against all the OPs. The final argument was held on 05.09.2023 when the Ld. Advocate of the complainants advanced arguments along with filing of BNA. 

The arguments were heard in full on ex-party basis.  It is not in dispute that the complainants placed an order to purchase the Pulveriser Machine on the website of the opposite party No.1. It appears that an invoice dated 07.02.2022 was raised by OP-1 for Rs.20,999/- (including GST) for sale of the Pulvarizer machine. The order was placed on 07.02.2022 by the complainants through Credit Card and the machine was delivered by OP-2 on 19.02.2022. The order details and shipment details lends support to the above details. The complainants mentioned on 26.03.2022 about supply of defective products. The return window of OP-1 got closed on 18.02.2022. The OP-1 intimated OP-2 informing the alleged malfunction of the machine and requested for a resolution. The OP2 by mail dated 27.02.2022 denied that the product was non functional and asked to share photo and video of the same. From Annexure- F of the exhibit by the complainants vide running Pg.9 it is mentioned by the OP-1 e-commerce Company addressed to the complainants in their return summary dated 03.03.2022 at 19.57.33 hrs. that states as follows :-

“Hello Monirul we have accepted your return requests.  Once master machine receives the items below, we issue a refund to your original payment method”. 

In that return summary, the pick-up date of the machine is also mentioned as “next business day” by depicting and capturing the photograph of the same machine under the name and style of master machines pulvarizer – which is the product related to the return. This also lends support through other communications dated 18.03.2022, 19.03.2022 and 26.03.2022. But by several communications dated 14.03.2022, 19.03.2022 and on various dates subsequently, the OP-2 supplier refused the complainants from taking back the machine due to elapse of 35 days- as per product return policy of Amazon.  In all the communications the OP-2 supplier requested the complainants to send the photos and videos of alleged defective equipment but there was not a single documents which lends support to the fact that the photos and videos were sent by the complainants, as desired, till the reply of the complainants dated 26.03.2022 at 03:13 p.m.  i.e. after more than 1 month from the date of receipt of the material on 19.02.2022. However, it appears from the said Annexure-F that the return requests for the product has been accepted by the OP-1 who has confirmed that the refund would be processed after receiving back the old machine, which was communicated to the complainants in clear terms. These are evident from the copies of E-mails exchanged between the complainants and OPs. It is admitted by the OP-1 that OP-2 refuse to take the product back, for which OP1 could not process refund to complainant. Also such communication dated 03.03.2022 is well within 30 days from the date of receipt of the product on 19.02.2022. Hence, the allegation of the complainants about the non-acceptance of the return of the product gets established. 

The OP-1 M/s Amazon Retail India Pvt. Ltd. is an e-Commerce company and advertises for its goods and products in the website with the URL : www.amazon.in. The role of the OP-1 e-commerce company is not limited to a facilitator and liable and responsible for any actions or inactions of their suppliers for any breach of conditions, representations or warranties by the sellers or manufacturers of the products. It is on record that the complainants were clearly told that the refund of the amount paid for the product would be made subject to receipt back of the defective product. However, the product was never collected back due to the admitted position and refusal of the supplier OP-2, who is the agent of OP-1 e-commerce company. As the refund towards the product could not be initiated successfully in the account of the complainants, it was the responsibility of the OP-1 company to enforce execution of their own direction by collecting back the defective product for return through any other means.

This clearly shows that the OP-1 was aware of the responsibilities on their part to accept the return of the Pulverizer Machine and OP-1 is required to ensure the refund of price, which is their admitted position. Also the machine was not received by the OP-1, as OP-2 failed to take back the same. Even the OP-2 failed to appear before this commission and therefore was proceeded ex-parte. The fact that the Machine was not collected back by the OP-2 goes un-rebutted on record. Therefore, the OP1 was left with the liberty to take action against the OP-2 as per law. The OP-1 is under legal obligation to refund the price of the Machine to the complainants since taken from them. Failure to refund Rs.20,999/- to the complainants in our considered opinion amounts to deficiency in service on the part of OP-1. Hence, the complaint deserves to be allowed.

Accordingly, the instant case be and the same is hereby allowed on ex-parte basis against OP No. 1 and OP No. 2.

The OP No. 1 and OP No. 2 are jointly and severally liable and are directed to take back the defective machine on ‘as is where is’ basis from the complainant and replace the same with same or similar model machine,

OR

Alternatively refund an amount of Rs.20,999/- (Rs. Twenty Thousand Nine Hundred and Ninety Nine) only to the complainant within 60 days from the date of passing this order.

Further, the OP No. 1 and OP No. 2 are jointly and severally liable and are directed to pay to the complainant a compensation in the form of a simple interest @ 9% per annum from the date of receipt of the defective machine till the replacement by a new machine and the date of final realization of all the payments.

Further, the OP-1 and OP-2 are jointly and severally liable and are directed to pay the litigation cost of Rs.5,000/- (Rupees Five thousand) only within 60 days from the date of passing this order.

All the above orders are to be complied within 60 days from the date of passing of this order failing which the complainant is at liberty to put the entire order into execution after the expiry of 60 days against OP No. 1 and OP No. 2.

Let a copy of the order be supplied free of cost to the parties as per  CPR. 

That the final order will be available in the following website www.confonet.nic.in.

A copy of this order be collected by all the parties as per the CPR.

Dictated and corrected by me.

                Member