The present Consumer complaint is filed by Mr. Mainak Dutta s/o Mr. Sunil Ranjan Dutta of 340 Dumdum Park, PS : Lake town , Kolkata 700055 vide complaint case no. CC/231/2020 against the Opposite party, Amazon Prime.in seeking compensation of Rs.100000/- each from OP1 and OP2 u/s 2(11) and 2(47) of the CP Act, 2019 for deficiency of services and unfair trade practices.

The facts leading to the present complaint are that the Opposite Party no 1 is a Private Company running the business of E-Commerce across the Country by selling goods online via its official webpage in a marketplace.

The complainant as averred in his petition has ordered for 1 no. IFB 20 Litre Digital Grill Micro Oven on 09.08.2020 through online shopping portal hosted by OP 1 for Rs. 7,083/- (after discount for taking through credit card). OP1 confirmed the receipt of Rs. 7,083/- by their mail dated 09.08.2020 vide order No. 407-3033463-6688340 for delivery on 19.08.2020. Complainant received delivery of a box on 19.08.20 from local agent M/s. Khosla Electronics (OP 2) vide Invoice No. IN-YEBM-236 dated 09.08.20 with mention of 1 no. IFB 20 Litre Digital Grill Microwave Oven ‘as per description mentioned on the packed box’. But upon opening the said box it was found by complainant that the material inside the packed box contained 1 no. IFB Solo 17 Litre MEC 1 OTG which costs around Rs. 5,075/- as estimated by the complainant. The complainant claimed that the item was not the one that he had ordered for and accordingly spoke to customer care group of OP 1 on 19.08.2020 regarding delivery of wrong item by OP 2 and claimed replacement. But the complainant averred that the OP 1 denied the request for replacement with correct product, as the ordered item was not allegedly available at that point of time. Hence the complainant filed this complaint for wrong and misleading advertisement and deviation from the contract. Under such situation, the complainant was offered refund and he accepted the same. The complainant claimed that as the invoice date of the delivery agent (OP 2) is matching with the date of placing order being the product available as on 09.08.2020 but the OP 2 wilfully and deliberately delivered and supplied another material in lieu thereof for their business convenience but left over a trail in the road challan as proof for IFB 20 Litre Digital Grill Micro Oven though physically some other product, being 1 no. IFB Solo 17 Litre MEC 1 OTG, which was actually supplied. This way a wrong item was not only delivered to the customer but also got violated the law of the land by sending or creating incorrect road challan during delivery of the material wrongfully on 19.08.2020. As per complaint, the OP 1 admitted the deficiency and vide mail dated 29.08.2020 accepted to make refund of the price differential.

The case was contested by OP 2 and was running ex-parte against OP 1. Written version was filed by OP 2 followed by evidence completed by the complainant. Questionnaires were filed by OP 2 followed by reply of the complainant. Evidence from OP 2 was filed when complainant filed their questionnaire and subsequently reply to the questionnaire was filed by OP, 2 followed by hearing of arguments and BNA from both the sides.

The OP 2 pleaded ignorance about the ordered item that was placed by complainant on OP 1 through E-Commerce Platform. The OP 2 also contended that even if assuming the wrong item was delivered but the complainant was refunded the entire amount without deduction of any carrying cost or handling charges. The OP 2 claimed that as the complainant has been refunded the entire amount without any deduction. The OP 2 also contended that as the box was delivered under the seal-packed condition directly from the manufacturer i.e. M/s. IFB Ltd. as a manufacturer hence the OP 2 is not responsible. The Op 2 also claimed that they had supplied the product as per the brand, Model Number as mentioned in the Tax Invoice/Bill. The OP 2 also claimed that being an order placed by the complainant on a third party i.e. M/s. IFB, hence the OP 2 being the agent of the OP 1 is no way responsible as the purchase has taken place as per the contract of sell on the E-Commerce market place which is strictly a bipartite contract between the complainant cum purchaser and the third party seller.

On perusal of all records and documents it is observed that the case is running ex-parte against OP 1. The case was represented by OP 1 initially alongwith OP 2 but as OP 1 did not file W/V hence the case was running ex-parte against OP 1 as per order dated 14.12.2020. On 19.08.2020 the complainant received a box from the delivery agent of OP 1 with Invoice No. IN-YEBM-236, vide Invoice Details as WB-YEBM-858576475-2021 dated 09.08.2020 for one number of IFB 20L Digital Grill Micro Oven. But upon opening the said box it was found by complainant that the material inside the packed box contained 1 no. IFB Solo 17 Litre MEC 1 OTG which costs a reduced amount of  Rs. 5,075/-as estimated by the complainant. This factum has been denied as evident inter alia from email of OP1 dated 29.8.2020.

The complainant’s contention that on 19.08.2020 he received a box from the OP 2 and the delivery thereof was confirmed by the Op 1 (who is the principal of the OP 2) by a mail dated 19.08.2020. The complainant accepted the box since the Invoice of the OP 2 was matching with the ordered item but upon opening the box found that an IFB Solo 17L MEC 1 OTG with pricing of Rs. 5,075/- (as on 19.08.2020) was sent in lieu of the said ordered item of IFB 20L Digital Grill Micro Oven inside the box. This proves the item was delivered as a defective one. The complainant took frontal picture of the delivered item and intimated customer care of OP 1 same day on 19.08.2020 informing the wrong delivery with a request to replace the item. But the OP 1 could not accede to the said request of replacement since it was not available at the same and ordered price at that point of time. The OP 1 sent a mail confirming the return summary and admitting the wrong delivery to take back the wrong material. The refund was given to the complainant who has received the money in full.

The Points that arise for consideration are:

1. Has the opposite party been deficient in service and negligent in not informing the complaint with regard to the status of her order and cancelling it without her consent?

2. If yes, is the complainant entitled to the compensation he claims?

3. To what reliefs?

POINT NO.1:- It is the case of the complainant that he ordered a product which was issued to him by the opposite parties. He claims having constantly following up with the opposite party for delivery of the said product but a wrong item was delivered to him. Full refund was made admittedly without any replacement due to lack of inventory at that point of time. His primary complaint is that the original order was not executed after a lapse of many days and refund was given without his consent. He has filed the present complaint seeking an explanation from the opposite party for their unprofessional attitude and compensation for having kept him waiting for so many days. He has supported his compliant by filing various exhibits and the contents of the complaint aspect is substantially established by the exhibits and specifically by email dated 29-08-2020 from OP1. The complainant has provided the necessary material evidence to show that he ordered the said product that was not delivered . This is not in dispute. His order was executed by supply of wrong item without his consent is causing him much grief. The OP2 has disputed on the grounds that they are only an intermediary platform to facilitate transaction between independent third party sellers and independent end customers. Their such defence is not acceptable. The complainant has been kept on tenterhooks waiting for the delivery of the said product. If the availability is in question, the opposite party being the intermediary could have informed him earlier and taken his consent to either keep the order on hold or cancel it accordingly. Instead they have encouraged the complainant to look forward to the delivery and they have arbitrarily supplied a wrong item. This amounts to deficiency in service and is a grave cause of negligence. The OP2 cannot escape their responsibility by stating that they are only an intermediary, since the monetary consideration has been received by them. We refer to section 2 (1) (d) of the Consumer Protection Act 1986, buys and goods for consideration which has been paid are promised are partly paid in holding the opposite party responsible. When an alternate remedy is available, it is the duty of the opposite party to inform the customers/complainant. These policy conditions cannot be treated as taken for granted. When the product is not available, it is the duty of this opposite party to inform the complainant with regard to delay or unavailability. This attitude is most unprofessional and insensitive. Undoubtedly the opposite party has refunded the amount to the complainant but they have also encouraged the complainant to eagerly wait for the actual product. There needs to be a transparency in the dealing of the sellers. For lack of inventory the complainant cannot be penalized and in this case the complainant is also very much disappointed. In the present days, Digital and Electronic Networking makes it easy for the opposite party to convey non-availability. This defence is not appreciated and they ought to have informed the complainant earlier. In view of this reasoning the point is answered accordingly, in favour of the complainant. Contention of OP2 is not at all tenable as the company has a vicarious liability being an agent of their Principals.

POINT NO. 2 & 3:- We refer to the reasoning and discussions in point No.1 and hold the opposite party responsible for their deficiency in service. They provide an online market place platform and must have a time frame for orders to be executed. They also should have a policy condition informing the customers regarding non-availability. When a plethora of emails can be exchanged regarding status of order and delivery, the customer is led to believe that her order is going to be executed. This aspect has to be considered and examined by the opposite party. The complainant deserves an explanation as prayed for. The opposite party should not take undue advantage and send a wrong product or to cancel the order without any warning. A time frame should be available for both sides to decide for the alternate course of actions. This amounts to unfair trade practice and adequate defence has to be raised to counter this. The opposite party is directed to address this at the earliest. The complainant deserves a reasonable compensation for the deficiency in service rendered by the opposite party.

Order

In the result, the complaint is allowed in part directing the both the Opposite parties to jointly and severally :-

To pay a sum of Rs. 7,000/- equivalent to the cost of ordered product, within 45 days from the date of this order, as compensation towards the disappointment and delay suffered by the complainant failing which the complainant will be free the entire order into execution.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER