Tripura

StateCommission

A/28/2015

Amazon Seller Services PVT. - Complainant(s)

Versus

Dulal Ray Karmakar &2 Others. - Opp.Party(s)

Lalit Chowdhury, Rajinder Singh, K.Nandi

18 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/28/2015

 

 

 

1. Amazon Seller Services Private Limited (ASSPL),

Having its registered office at 8^th Floor, Brigade Gateway,

26/1, Dr. Rajkumar Road, Bangalore – 560055,

Karnataka, India, P.O. Agartala,

Through its authorized representative Mr. Rohitoz Singh.

 

 

                   ….    ….    ….    ….    Appellant/Petitioner.

 

                   Vs

 

1. Sri Dulal Ray Karmakar,

Ramnagar, Road No.2,

Near Sanitala, West Tripura,

 

2. Blue Dart Express Limited

19/20, Amulya Market,

Mantri Bari Road,

Agartala, Tripura West

 

3. Senior Executive Retail Sales,

Amazon Development Centre Private Limited,

Plot No-26/1, 8^th Floor, Malleswaram West,

Banglore-560055

 

                              ….    ….    ….    ….    Respondents/Opposite Parties.

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

For the Appellants             :         Mr. Kajal Nandi, Adv., Mr. Lalit Choudhury, Adv.

      For the Respondent No.1    :         In person

For the Respondent No.3    :         Mr. Dulal Chandra Saha, Adv.     

Date of Hearing       :                    28.04.2016.

Date of delivery of Judgment:      18.05.2016

J U D G M E N T

 

 

S. Baidya, J,

This appeal filed on 08.12.2015 by Amazon Seller Services Pvt. Ltd. (ASSPL) through its representative authorized by the Board of Directors under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment and Order dated 24.12.2014 passed ex parte by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-56/2014 whereby the Ld. District Forum directed the opposite party no.1 Amazon.in represented by the Senior Executive Retail Sales, Amazon Development Centre Pvt. Ltd. to replace the damaged chimney by a new one or to refund the price of the kitchen chimney amounting to Rs.14,189/- to the complainant within 6 (six) weeks from the date of judgment, failing which the said amount will carry interest @9% per annum till the payment is made and also directed to pay Rs.5,000/- as compensation for causing mental agony and harassment together along with Rs. 2,000/- as cost of litigation to the complainant.

2. The case of the appellant, as narrated in the memo of appeal, in brief, is that the respondent no.1-complainant filed the complaint with the intention of harassing the appellant and also for extorting money, but the Ld. Forum erroneously passed the impugned judgment against the O.P.no.1. It has also been stated that the respondent no.1 ordered to purchase one kitchen chimney (Elica Curve BF 60 Touch) through online shopping from Amazon.in website and the said product was shipped by the seller Hindustan Trading Company via respondent no.2 i.e. Blue Dart and the respondent no.1 received the same on 09.05.2014, but the respondent no.1 while opening the product found the same in broken condition and he immediately informed the same to the appellant through e-mails and when he did not get any satisfactory reply from Amazon.in, he filed the complaint and got the ex parte order of award in his favour.
3. It has also been alleged that the impugned judgment was passed by the Ld. Forum without hearing the appellant and without giving an opportunity to the appellant for contest its case.
4. It has also been stated that Amazon Seller Services Private Ltd.  (ASSPL) is a well reputed company and has a large number of customer base and amongst others, runs, manages, operates the www.amazon.in website. It has also been alleged that the ASSPL neither sales nor offers to sell any product and merely provides a technology platform (an online marketplace) where independent third party sellers can list their products for sale and therefore, the sellers themselves, and not ASSPL, are responsible for their respective listings and products on the website and as such, the ASSPL is neither responsible for the products listed on the website by various third party sellers nor involved in the sale transaction between the customer and the seller. It has also been alleged that the conditions of use relating to the Amazon.in website and agreed upon by the customers specifically state that the ASSPL is only a facilitator and cannot be a party to control in any manner any sale transaction on the website and the contract of sale of products on the website is strictly a bipartite contract between the customer and the seller.   
5. It has also been stated that seller of the product facilitated and arranged for transportation of product and made an arrangement with the carrier i.e. Blue Dart, the respondent no.2 to deliver the ordered product to the respondent no.1. The appellant was neither involved in the sale transaction between the seller and the respondent no.1 nor did ASSPL facilitate the shipment of the product to the respondent no.1 and the said shipment was solely in the domain of the seller and the carrier to the total exclusion of ASSPL.
6. It has also been alleged that the ASSPL never received any kind of notice from the Ld. District Forum, rather the notice was sent to another entity of Amazon.in i.e. Amazon Development Centre (India) Private Limited which does not operate the website, rather it is the ASSPL which is concerned with operation and maintenance of the website. It has also been alleged that ASSPL was never aware of the fact that any such order was passed by the Ld. District Forum and therefore, was unable to appear before the Ld. District Forum and as a result, ex parte order was passed.
7. It has also been stated that the ex parte order was passed against the Senior Executive Retail Sales, Amazon Development Centre (India) Private Limited, but there is no such designated officer in Amazon Development Centre (India) Private Limited (O.P.no.1). It has also been alleged that the respondent no.1 wrongly filed the complaint against the O.P.no.1 rather than ASSPL, so that ASSPL would be unable to appear before the Ld. District Forum to contest the complaint as a result of which an ex parte order was passed. It has also been alleged that the appellant came to know about the ex parte judgment dated 24.12.2014 only in the month of September, 2015 when it received the notice of the execution petition filed by the respondent no.1 and then the appellant immediately moved an application on 07.09.2015 for stay of the execution petition filed by the respondent no.1.
8. It has also been alleged that thereafter the appellant has preferred the instant appeal assailing the impugned judgment on the grounds that the present appellant was not a party to the complaint and the O.P.no.1 who was a party in the complaint was in no way involved in the alleged transaction in question and that the judgment passed ex parte has affected the interest of the appellant, although it has not been made a party to the complaint, that the appellant got no opportunity to contest the claim of the complaint by filing any written objection.   

Points for Consideration

9. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in allowing the complaint ex parte by the impugned judgment and (ii) whether the judgment under challenge is liable to be set aside or otherwise as prayed for.

Decision with Reasons     

10. Both the points are taken up together for the sake of convenience and brevity.
11. At the outset, it is found necessary to mention that respondent no.1 Dulal Ray Karmakar as complainant filed the complaint under section 12 of the Consumer Protection Act, 1986 before the Ld. District Forum, West Tripura, Agartala against two opposite parties namely (1) Amazon.in (Senior Executive Retail Sales, Amazon Development Centre Private Limited) and (2) Blue Dart Express Ltd. represented by its Manager. It also appears that neither the O.P.no.1 nor the O.P.no.2 appeared in the said complaint case and as such, the said complaint case was disposed of ex parte and the impugned judgment was passed. It is also found that the present appellant was not a party to the said complaint case.
12. On perusal of the complaint petition, the memo of appeal and the impugned judgment we find that there are some admitted facts. Admittedly, the present respondent no.1 placed an order with the website Amazon.in for purchasing a kitchen chimney worth Rs. 14,189/- on 03.05.2014 and the said item was supplied to the respondent no.1 on 09.05.2014 through the carrier Blue Dart Express Ltd., the respondent no.2 herein, O.P.no.2 in the Ld. Forum. It is the specific case of the complainant that after opening the packet he found the kitchen chimney in broken condition. It is also the case of the complainant that thereafter he made several correspondences with Amazon.in, but without any fruitful result and finding no alternative, he lodged the complaint before the Ld. District Forum.
13. The Ld. Counsel for the appellant (ASSPL) submitted that Amazon.in is only an online platform where various sellers of products exhibit their products for sale. He also submitted that Amazon.in is not the seller of any product, it is only a facilitator in making transaction by way of sale and purchase between the seller and the purchaser. He also submitted that in the instant case, on receipt of the order from the complainant the website Amazon.in sent the same to the seller, Hindustan Trading Company and the said seller of the kitchen chimney in question delivered the same to the complainant through the carrier-Blue Dart Express Ltd., respondent no.2 herein. He also submitted that for the purpose of said kitchen chimney Hindustan Trading Company is the seller and the respondent no.1 herein is the buyer and the Amazon.in is only a facilitator of the said transaction and nothing more. He also submitted that the respondent no.1-complainant did not make the said Hindustan Trading Company a party to the complaint, although the Hindustan Trading Company is the sole necessary party being the seller of the said kitchen chimney.
14. The Ld. Counsel for the appellant also submitted that before placing the order for supplying kitchen chimney, the complainant has gone through the terms and conditions of sale and purchase of any item through online by using the website Amazon.in. He also submitted that the appellant has filed the Annexure-D which are the terms and conditions of online business through Amazon.in website. He also submitted that in the said terms and conditions for use of website Amazon.in, it has been specifically mentioned that Amazon Seller Services Private Limited only facilitates to provide access to the Amazon.in website. He also submitted that this Amazon Seller Services Private Limited (ASSPL) is the sole controller of the website Amazon.in which is only an online marketplace.  He also submitted that the complainant was well aware that ASSPL controls and manages the website Amazon.in, but the complainant instead of making ASSPL a party to the complaint has made Amazon Development Centre Private Limited as the O.P.no.1 which is merely a sister concern, but has no control over Amazon.in and had no role in the transaction in question and from that standpoint, it can be said that Amazon Development Centre Private Limited is completely an unnecessary party.
15. The Ld. Counsel for the appellant also submitted that Amazon.in controlled by ASSPL, appellant herein has no liability as per terms and conditions of use through online sale (Annexure-D).
16. The Ld. Counsel for the appellant also submitted that the Ld. District Forum passed the impugned judgment against Amazon.in represented by Amazon Development Centre Private Ltd. on the presumption that the Amazon Development Centre Private Ltd. control and manages the website Amazon.in, but the fact is otherwise. He also submitted that Amazon Development Centre Private Limited is merely a provider of human resources and can utilize the facility of Amazon.in, but not the controller of the said website. He also submitted that ASSPL as per terms and conditions of use (Annexure-D) is a private limited company and said company has a Board of Directors who are responsible for the said website, but complainant did nothing in this regard while lodging the complaint before the Ld. District Forum. He also submitted that the name of the member of Board of Directors and also the name of the Managing Director are available in the website and the complainant may act accordingly, for the proper representation of ASSPL who is in-charge of the website Amazon.in.
17. Ld. Counsel for the appellant also submitted that as the appellant has not been made a party to the complaint, the appellant could not get any opportunity to contest the claim of the complainant by filing any written objection. He also submitted that the appellant is seeking an opportunity to place its case before the Ld. District Forum by filing the written objection and for that he submitted for allowing the appeal and sending back the case on remand to the Ld. Forum for fresh adjudication after providing an opportunity to the present appellant by way of filing the written objection and also adducing of evidence.
18. The Ld. Counsel for the respondent no.3 submitted that the respondent no.3 is only a provider of human resources and had no role in the transaction in question. He also submitted that the complainant wrongly made the respondent no.3 as O.P.no.1 in the complaint and as such, the present respondent no.3 is an unnecessary party, but the Ld. District Forum erroneously passed the impugned judgment against the present respondent no.3 due to the suppression of the fact by the complainant in respect of the terms and conditions of use of the online sale (Annexure-D). He also submitted for setting aside the impugned judgment passed against the O.P.no.1, the present respondent no.3 herein.
19. In this appeal the respondent no.1-complainant submitted in person. In course of hearing the appeal, the respondent no.1 admitted before us that prior to the placing of the order for supplying kitchen chimney, he perused the terms and conditions of use the website Amazon.in. He also submitted that he deposited the price of the kitchen chimney through the website Amazon.in. He also submitted that he made various correspondences with the said website. He also submitted that in spite of correspondences, he did not get the proper kitchen chimney from the said website. He also submitted that he wants to get the proper kitchen chimney or refund of the price of the kitchen chimney. He also submitted that practically Amazon.in represented by Amazon Development Centre Private Limited received the notice of the complaint case, and the said Development Company could communicate the information regarding the lodging of the complaint before the Ld. District Forum to the appellant-ASSPL, but the present appellant taking the advantages of such erroneously non-making as party to the complaint, has taken a plea of ignorance of the filing of that complaint case. He also submitted that the present appellant has filed this appeal after getting the notice of the execution case filed by him in the Ld. District Forum on the basis of the ex parte judgment where the appellant has taken a plea of ignorance regarding the filing of the complaint case. He also submitted that the present appellant and the O.P.no.1 of the complaint case (respondent no.3) herein, are sailing on the same boat and the appellant has come up with the instant appeal with a view to defeat the claim of the complainant granted by the impugned judgment. He then submitted for dismissal of the appeal.
20. The Carrier Blue Dart Express Ltd., the respondent no.2 herein, who is the O.P.no.2 in the Ld. Forum neither appeared in the complaint case nor appeared in this appeal, in spite of service of notice.
21. We have gone through the conditions of use of the website Amazon.in (Annexure-D) filed by the appellant at the time of preferring the memo of appeal. Going through the same it appears that the present appellant is a facilitator of the transaction, rather the present appellant can be called a mediator asking the seller to supply the required article to the buyer who booked to purchase the item through website Amazon.in. From the document (Invoice) it appears that the seller of the kitchen chimney in question is Hindustan Trading Company and it was supplied through Blue Dart (respondent no.2) to the complainant, respondent no.1 herein. Going through the said invoice it is clear that Hindustan Trading Company being the seller of the kitchen chimney is a necessary party. It further appears that the present appellant (ASSPL) through its Directors or Managing Director is also a necessary party to the complaint. In the absence of ASSPL and Hindustan Trading Company, the matter in dispute cannot be adjudicated properly and finally. It also appears to us that the award so made by the impugned judgment is found not against the proper person or authority. That being the position, we are of the view that the impugned judgment cannot be sustained in the eye of law. Furthermore, we are also of the view that the present appellant should get an opportunity to counter the claim of the complaint by filing the written objection. In view of the above, we are of the view that the Ld. District Forum was not proper, legal and justified in passing the award by the impugned judgment which should be set aside for sending back the case on remand to the Ld. District Forum with certain directions.
22. We have made it clear that this Commission did not enter into the merit of the case and decided nothing conclusively.
23. Accordingly, appeal succeeds. The impugned judgment is hereby set aside.
24. The case is sent back on an open remand for fresh adjudication.  
25. The respondent no.1-complainant is directed to file the proper amendment application before the Ld. District Forum for incorporating the present appellant and Hindustan Trading Company as opposite parties within a reasonable time to be fixed by the Ld. Forum.
26. The Ld. Forum shall provide an opportunity to the ASSPL and also Hindustan Trading Company to contest the complaint case by filing written objection and also allowing them to adduce their respective evidences, if any.         
27. The present appellant is also directed to submit the names of the members of the Board of Directors who is/are legally authorized to represent the ASSPL in-charge of the website Amazon.in in the Ld. District Forum after supplying a copy thereof to the complainant on 27.05.2016.
28. Parties are directed to appear before the Ld. District Forum on the date fixed i.e. on 27.05.2016.
29. Let a copy of this judgment and the record of the Ld. District Forum being CC-56/2014 be transmitted to the Ld. Forum forthwith for doing the needful in the light of the observation and directions given in the impugned judgment for fresh adjudication after taking into consideration the evidences already on record and the evidences to be adduced by the parties on the basis of their respective pleadings after remand of the case.

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura