IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 28th day of June, 2024
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 241/2023 (Filed on 24.07.2023)
Complainant/Petitioner | : | Sona Mariya Boby, aged 22/23, D/o Bobby T Jose, Living at Koottikal P.O., Narakampuzha, Idukki District, Now living at C.S.I Law College Hostel, Kanakkari, Ettumanoor. (By Adv Jolly James) |
Opposite parties/ Respondents | -
| Darshita Aashiyana Pvt.Ltd., Building 2 (Wh2), Plot No.12/P2, (It Sector), Hitech, Defence & Aerospace Park, Devanahalli, Bangalore, Karnataka- 592 149. |
| 2. | Amazon Pay India Pvt. Ltd., 08th Floor, Brigade, Gateway, 26/1 Dr. Rajkumar Road, Banglore, KA 560 055 IN
|
| 3. | Sunny Kumar, S/o Sathyan Sundar Sah, Matkuriya, War No. 05, Latauna, Matkuriya, Latauna, Tribeniganj, Sapaul, BR 852 139, CAF No. Brhodnntg5, Msisdn. |
O R D E R
Sri. Manulal V.S. President
The complaint is filed under Section 35 of the Consumer Protection Act 2019.
Case of the complainant is as follows:
The complainant, who is a 3rd year LLB student, ordered a new One Plus Nord CE 3 Lite 5 G phone for ₹ 19,999/- and an outer cover for ₹ 149/- from the Amazon app of 1st opposite party on 10.05.2023. On 15.05.2023, the phone was delivered to her, and she sent ₹ 20,148/- to the account of the first opposite party to Amazon Seller Services Pvt. Ltd., through Google Pay, including the price of the phone along with the phone cover cost of ₹ 149/-. When she opened the box, instead of a new phone, it was found two broken Samsung model GT-S522 having IMEI number 354319/05/32483/4 and model SM-G316HU/DD having IMEI number 359375/06/241565/1 were delivered to her. Among the products she has received, only the phone cover is as per her order. She received the old phones inside a box that looked like a new phone, and the box had IMEI number 862301069195930, Manufacturing Month & Year 04/2023 Maximum Retail Price ₹ 19,999/-. Following this, the complainant filed a complaint before the Thiruvananthapuram Museum Police Station, and another complaint was lodged with the Thykkad Cyber Police Station.
After investigation, the complainant learned that the 3rd opposite party was using the phone with the IMEI number found in the phone's box delivered to her. Legal notices were sent to the 1st opposite party through registered post and the 2nd opposite party through e-mail, but the 1st opposite party did not receive the registered notices, and the 1st opposite party returned the same and sent it back knowing the contents of the notice. The complainant sent the email to the email id resolution-in@amazon.in of the 2nd opposite party but no satisfactory reply was received. According to the complainant, due to unfair trade practice by the opposite parties, she had suffered grave mental pain and suffering by losing an amount of ₹ 19,999/- and suffered a loss in uploading the day-to-day affairs of the internship to the Class Teacher.
Hence, this complaint is filed by the complainant, who is praying for an order to direct the opposite parties to pay ₹ 19,999/- paid for purchasing the mobile phone with 12% interest and to pay compensation of ₹ 50,000/- for mental agony and suffering caused to the complainant.
Upon notice from this commission, the second opposite party appeared before this commission and filed version. The notice sent to the 1st opposite party was returned as refused and hence considered as deemed service. Notice to the 3rd opposite party seen served on 27.08.2023. Despite receiving notice from this commission, the 1st and 3rd opposite parties did not care to file the version.
Hence, the first and third opposite parties were set the ex-party.
Version of the second opposite party is as follows;
The complainant has incorrectly impleaded opposite party No. 2 as 'Amazon Pay India Pvt Ltd..' It is submitted that the correct entity operating the e-commerce marketplace, i.e., www.amazon.in, is Amazon Seller Services Private Limited, a company incorporated under the provisions of the Companies Act, 1956, having its registered office at 8th Floor, Brigade Gateway, and 26/1 Dr. Rajkumar Road, Bangalore-560055. The complainant purchased "One Plus Nord CE 3 Lite 5G on 10.05.2023 vide Order ID: 404- 3813168 with an Independent Third-Party seller, i.e., first opposite party and operating on www.amazon.in.The invoice bearing no. BLR8-82158 placed for the Impugned Product for 19,999 was issued by the first opposite party. The tax invoice was issued by the first opposite party and not by the second opposite party, which indicates that the transaction of sale was by and between the complainant and the seller.
It is submitted that as per the directions from the RBI, any transaction between an Independent Third-Party Seller is executed through an Independent account maintained by the banks, which is separate and free from the internal of the seller. Therefore, based on the given RBI direction, the second opposite party does not charge the buyers on the E-commerce marketplace, and consideration paid by the buyers towards purchase on the E-commerce marketplace is paid directly to the Independent Third-Party Seller from whom the purchase is made through the nodal account. The second Opposite Party provides a "free for all" marketplace to buyers who have access to the internet, hence providing a communication and hosting network to buyers to purchase products for sale and to conduct a transaction.
The second Opposite Party operates and manages the E-commerce marketplace at www.amazon.in wherein lakhs of Third-Party Sellers and buyers interact and conduct their transactions and, as such, is an 'intermediary' in terms of Section 2(1) (w) of the Information Technology Act, 2000. Any Seller is free to list any product for sale, and any buyer is free to choose and order any product from any Independent Third-Party Seller selling that product on the e-commerce marketplace.
All customers who visit the e-commerce marketplace enter into a 'Conditions of Use where there is a clear understanding of the role of the first opposite party with respect to all sales transactions entered by and between the Independent Third-Party Sellers and the customers. Clause 3 of the conditions of use categorically states the legal position of ASSPL/opposite party No. 2 that it merely operates an E-commerce marketplace to facilitate sale transactions entered by and between the buyer and Independent Third-Party Seller. The 2nd opposite party is not the seller or manufacturer of the products listed on its marketplace. Further, Clause 13 of the conditions of use states that second opposite party is not liable, in any manner whatsoever, for the performance of the sale agreement executed by and between the buyer and first opposite party on the E-commerce marketplace as the agreement of sale entered by and between the buyer and first opposite party.
It is submitted that an intact and correct package containing the impugned product was delivered to the complainant on 15.05.2023. A One-Time Password (OTP) was generated and shared with the complainant via e-mail on 15.05.2023 to ensure secure and proper delivery of the impugned product. It is pertinent to note that the aforesaid code must have been shared by the complainant with the delivery associate only after receiving the correct and intact package. The impugned product was delivered in a secured package with a unique ID: sptp321064255. All payments with respect to the impugned product are made to the nodal account owned and operated by the first opposite party. It is submitted that the second opposite party, being an intermediary, has done within all its means to deliver the package with utmost care and responsibility.
The issues raised by the complainant with the CS team of the 2nd opposite party were duly acknowledged, and a reply was generated on 26.05.2023 informing the complainant that upon receipt of the issue, an internal inquiry was conducted, and the fulfilment center confirmed that a correct and complete package was delivered to the complainant. The complainant has approached this commission with a dishonest intention for obtaining undue monetary gains from the second opposite party. The second opposite party cannot be held liable for any unfair trade practice when it has done everything within its capacity to resolve the difficulties of the complainant.
The complainant filed a proof affidavit in lieu of chief examination, and the witness of the complainant is examined as PW1, and exhibits A1 to A11 were marked from the side of the complainant. There is no oral evidence on the part of the 2nd opposite party, and the documents produced by the second opposite party are marked exhibit B-1 to B3 from the side of the opposite party.
We would like to consider the following points in evaluating the complaint, version, and the evidence on record.
- Whether the complainant had succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties?
- If so, what are the reliefs and costs?
Point Nos. 1 & 2
It is an undisputed fact that the complainant had purchased a One Plus Nord CE 3 Lite 5 G phone for ₹ 19,999/- and an outer cover for ₹ 149/- from the 2nd opposite party through the e-commerce platform, and the seller was the 1st opposite party. It is also an undisputed fact that the complainant paid an amount of ₹ 19,999 /- vide invoice No. BLR8-. But, after receiving the courier, the complainant noticed instead of a new phone, it was found two broken Samsung model GT-S522 having IMEI number 354319/05/32483/4 and model SM-G316HU/DD having IMEI number 359375/06/241565/1 was delivered to her. Ex.A5 is an email complaint sent by the complainant regarding the wrong delivery of the product. Exhibit A3 is the "One plus Nord CE 3Lite phone" cover box. On perusal of the same, we can see that the IMEI No of the phone in the box was 862301069195930. Exhibit A4 proves that there were two broken Samsung models: the GT-S522 and the SM-G316HU/DD phones. Exhibit A6 is the copy of the Cyber Crime Incident report for which the complainant filed a complaint before the national cybercrime portal. Exhibits A9 and A10 are the receipts issued from the SHO, Museum Police Station, Thiruvananthapuram and the SHO of the Cyber Police Station Thycadu, Thiruvananthapuram. PW2, who is the SHO of the Cyber Crime Police Station, Idukki, deposed before the commission that on enquiry tracing with the IMEI no. 862301069195930, which was printed on Exhibit A3 box, it was revealed that a Jio sim card with phone No. 9798076612 was used in the said phone. As per the information provided by the Jio service provider, one Sunny kumar from Bihar was using the SIM card. Thus, it was evident that the One Plus Nord CE 3 Lite 5 G phone, which the complainant purchased through the second opposite party, was not delivered to the complainant.
Whereas the 2nd opposite party contended that as the complainant purchased the phone from the 1st opposite party, who is one of the sellers registered on the online platforms of the 2nd opposite party and the function of an E-commerce entity is trusted in providing access to a communication system on which information made available by the seller. The 2nd opposite party further submitted that as the 2nd opposite party is an online marketplace e-commerce and acts as an intermediary to sell the products, as per contention of 2nd opposite party, they do not directly or indirectly sell any products on 2nd opposite party platform and all the products are sold by third-party sellers who use the online market place of 2nd opposite party and also it is further contended as product listed on its E-commerce market place by way of independent third party seller, hence cannot be held liable for any deficiency in service.
It is clear that as per Section 2(17) of the Consumer Protection Act, 2019, an electronic service provider means a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction given. Exhibit B4 is the e-mail communication sent by the 2nd opposite party to the complainant containing the OTP and unique package ID. It is reproduced hereunder. "Your package will be delivered by the end of the day by our Amazon Delivery Agent (Phone: +914846174444 PIN 9299). You can pay ₹ 20,148/- digitally via SMS pay link sent by the delivery agent or by cash for the secure delivery of your order; it will be delivered in a secure, tamper-proof package with a unique ID. Please verify the unique package ID with the one printed on your package cover before accepting the delivery. Learn more about secure packages.
Secure package ID: sptp321064255
Your one-time password is 501443.
Therefore, it is evident that the package was delivered by the delivery agent of the 2nd opposite party, and the complainant can pay the price of the ordered product either via the SMS pay link provided by the delivery agent" of the 2nd opposite party or by cash to the delivery agent.
Opposite party No.2 cannot shirk its responsibilities merely saying that "it is only the provider of the online marketplace to buyer and seller of the product and saying as no role in the transaction of sale and purchase." Amazon's E-commerce platform, i.e., 2nd opposite party, enables third-party sellers to sell their products directly to customers on a fixed-price online marketplace. The opposite party No.1 & 2 were in contract and agreement, and they were bound by the contract, and they were bound to provide information about the original product that was ordered to the customer, but they failed to do so. As such, opposite parties No.1 & 2 come within the purview of the deficiency of service and unfair trade practice under the Consumer Protection Act, 2019, and they are held for the consequences of the same. Hence, this point is answered in favour of the complainant.
In this case on hand, instead of the product ordered by the complainant, the first and second opposite parties delivered a different damaged product to the complainant, whereas the amount collected from the complainant is ₹ 19,999/- as the price of the new product as such, the opposite party No.1 & 2 are liable for deficiency of service and unfair trade practice as the opposite parties have not performed their duties as laid down in the Consumer Protection E-Commerce Rules, 2020. Hence, in view of the foregoing discussions and findings, the complainant is entitled to the reliefs mentioned infra. Thus, this point is also answered in favour of the complainant.
As a result, the complaint is allowed, and the opposite parties No.1 & 2 are jointly and severally directed to:
- Refund an amount of ₹ 19,999/- along with interest @ 9% p.a. from 15.05.2023 .i.e. the date of payment till the date of realization.
- Pay ₹ 25,000/- as compensation for the unfair trade practice on the part of the first and second opposite parties.
Time for compliance is 30 days from the date of receipt of this order, failing which the above-mentioned amount under Sl.No. (ii) shall attract an additional interest @ 9% p.a. from the date of this order till the date of realization.
Pronounced in the Open Commission on this the 28th day of June, 2024
Sri. Manulal V.S, President Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witness from the side of the Complainant :
PW1 - Letheef M.B
PW2 - Sona Mariya
Exhibits from the side of the Complainant :
A1 - Copy of Tax invoice from Amazon dated 12.05.2023
A2 - Copy of call logs
A3 - Mobile Cover
A4 - Mobile phone
A5 - Screenshot copy of the e-mail message dated 20.05.2023
A6 - Copy of the Cyber crime incident dated 15.05.2023
A7 - Copy of the legal notice dated 22.05.2023.
A8 - Copy of the refused legal notice dated 30.05.2023.
A9 - Petition receive receipt No. 350/DWPTN/B5 dated 21.05.2023.
A10 - Petition receive receipt No. 302/2023/WPTN/CCPS/TC dated
21.05.2023.
A11 - Copy of the subscriber details including IMEI Numbers, Traced
Mobile Number and Address.
Exhibits from the side of the Opposite Parties :
B1 - True copy of the Board of Resolution dated 21.02.2023.
B2 - Copy of the invoice dated 12.05.2023 issued by the seller i.e
Darshita Aashiyana Pvt. Ltd.,.
B3 - Copy of the RBI directions.
B4 - Copy of the e-mails containing OTP and Unique package dated
15.05.2023, sent by the opposite party No.2 i.e., Amazon seller
Service Pvt. Ltd., / ASSPL to complainant.
B5 - Copy of the e-mail dated 26.05.2023 send by the CS team of
opposite party No.2 i.e., Amazon Seller Service Pvt. Ltd., /ASSPL to the complainant.
B6 - Copy of the conditions of use and sale.
By Order,
Assistant Registrar
