BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint No.293/17.
Date of instt.:06.11.2017.
Date of Decision:22.02.2019.
Satish Kumar son of Pala Ram r/o Nanak Puri Colony, Sarojani Naidu Public School, Kaithal Tehsil & District Kaithal.
……….Complainant.
Versus
- M.D./Dealing Head,Amazon India, A 56/1 Hare Krishna, Mehto Marg, Block F, Maya Puri Industrial Area, Phase II South Moti Bhag, New Delhi-110021.
- M.D./Dealing Head, Overnite express Courier, 11099-C, Overnite House, East Park Road, Karol Bhag-110005.
- Dealing Head, Overnite Express Courier Bajrang Bali Market, Opposite Randhir Cinema, Kaithal, Tehsil & District Kaithal.
……..Opposite Parties
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Shri Jagmal Singh, President.
Shri Rajbir Singh, Member.
Smt. Suman Rana, Member.
Present: Shri Mukesh Sharma, Advocate for complainant.
Shri Munish Sikri, Advocate for the opposite party No.1.
Shri J.S.Gill, Adv. for the Opposite parties No.2 & 3.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased Engineers Toy Mini Quad Copter Kit from OP No.1 through online vide order ID No.405-2530119-5216342 and paid Rs.2797.98 on 23.05.2017 vide SBIPG IU5384611030AMAZON being product price and courier charges. The OPs have failed to dispatch and deliver the above said ordered product to the complainant till today despite the fact it was to be reached till 29.05.2017 to 02.06.2017. The complainant contacted the Ops through telephone and lastly got served legal notice upon them but to no avail as neither the product has been dispatched or delivered nor has the payment thereof been returned. The act and conduct of the Ops clearly amounts to deficiency in service on their part. In evidence the complainant has tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C4, Mark C1 to Mark C2.
2. Upon notice, the opposite parties appeared before this forum. The OP No.1 filed reply raising preliminary objections with regard to maintainability; locus standi; cause of action and jurisdiction. It is further submitted that the present complaint has been wrongly filed by the complainant against MD/Dealing Head as there is no such entity concerned with the website www.amazon.in (“Website”); that in fact M/s Amazon Seller Services Pvt. Ltd. (ASSPL) is the owner of the above said website and it is craved that the same may kindly be corrected and incorporated in the memo of parties of the present complaint, therefore, references to OP No.1 hereinafter should be construed as references to ASSPL; that Op No.1 neither sells nor offers to sell any products and merely provides an online market place where independent third party sellers can list their products for sale., therefore, the sellers (and not ASSPL) are themselves are responsible for their respective listings and products on the website; that ASSPL is not involved in the sale transaction between the customer and seller; that the conditions relating to the customer’s use of the website (as expressly available on the website) and specifically agreed by the customers state that ASSPL is only a facilitator and cannot be a party to or control in any manner any sale transaction on the website; that the contract of sale of products on the website is strictly a bipartite contract between the customer and the seller, the transaction is akin to the complainant/buyer having made a purchase from an independent third party seller from a virtual mall/shopping complex, the seller/manufacturer having manufactured/sold the merchandise are liable for the respective products to the total exclusion of the mall/ shopping complex management; that the mall/shopping complex management are neither responsible nor liable for the acts/omissions of the independent third party sellers who are themselves responsible and liable for their independent acts/omissions; that the complainant has not bought any goods from ASSPL and it has acted as an intermediary only; that the goods have been bought by the complainant from the independent third party seller selling its products on the website operated by OP No.1, accordingly the complainant does not fall within the definition of consumer and prayed for dismissal the present complaint.
3. The OPs No.2 & 3 filed joint reply submitting therein that there is no deficiency on the part of answering OPs; that when the Op no.1 had not delivered the Engineers Toy Mini Quad Copter Kit for supply to the complainant then how it would be supplied to the complainant; that there is no liability, fault and any kind of deficiency in service on the part of OPs; that the complainant has no relation with the OP Nos. 2 & 3. There is no deficiency in service on their part. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the Ops have tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R3.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence available on the file.
5. From the pleadings and evidence of the case, it is clear that the complainant had ordered one engineers Toy Mini Quad Copter Kit vide order dated 405-2530119-5216342 and also make the payment to the tune of Rs.2798.98. It is also clear that the ordered product has not been delivered to the complainant and the OP Nos. 2 & 3 in their reply have admitted that the Op No.1 has not provided this product to be delivered to the complainant, therefore, the product could not be supplied to the complainant. During the course of arguments learned counsel for the Op No.1 has disclosed that an amount of Rs.2797.98 has already been refunded to the complainant on 05.01.2018 vide refund reference number 347181 and this fact has not been denied by the complainant. The Op No.1 is an intermediary and was acting as a facilitator between the complainant and actual seller of the product in question and when the product has not been delivered then the Op No.1 has refunded the amount deposited by the complainant without any deduction and this fact has not been brought by the complainant before this Forum at any stage. The preamble of the Consumer Protection Act is benevolent but it does not give any liberty to anyone who wants to take undue advantage thereof. In the present complaint the complainant has not approached to this Forum with clean hands and has suppressed the fact about receiving of full amount of Rs.2797.98 from the Op No.1 without any deduction, therefore, the present complaint deserves dismissal.
6. Thus, as a sequel of above discussion, we dismiss the present complaint leaving the parties to bear their own costs. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.22.02.2019. (Jagmal Singh) President
(Suman Rana) (Rajbir Singh)
Member Member
Present: Shri Mukesh Sharma, Advocate for complainant.
Shri Munish Sikri, Advocate for the opposite party No.1.
Shri J.S.Gill, Adv. for the Opposite parties No.2 & 3.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is dismissed. File be consigned to record-room after due compliance.
Dated:22.2.2019. Member. Member. President.
