By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows: -
1. The complainant is a company secretary and his email ID is www.amazon.in and the investigation would be completed on or before 18/02/2019. But the complainant neither received any mail with respect to the complaint nor any information about investigation result of internal team. The complainant contacted customer care executive on 20/02/2019 to know about the status of the issue but the customer care executive declared that complainant is not eligible for the refund. The message of the opposite party was that “I understand that you have not received your item from order # 404-0136970-0121103.” The complainant alleges the opposite party never contacted the complainant or the delivery boy as part of investigation of the www.amazon.in. Hence the allegation of the complainant is that there is deficiency in service as well as unfair trade practice on the part of the opposite party and also alleges cheating. The prayer of the complainant is that to allow compensation of Rs.2,00,000/- and cost of Rs.50,000/- along with the value of disputed product, Rs.3,594/- to the complainant.
2. On admission of the complaint notice was issued to the opposite party and the opposite party entered appearance and filed very detailed version denying the entire allegations and averments in the complaint and also narrating the terms and conditions regarding online transactions.
3. The opposite party submitted that the address mentioned by the complainant regarding the opposite party is wrong one and the correct version is amazon seller services private Ltd. The opposite party submitted that they are well reputed company and has a very large customer base and amongst others manages and operates the website and it has registered office at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore – 560055.Karnataka, India.
4. The contention of the opposite party is that they neither seller nor offers to sell any product and merely provides an online market place where independent third-party sellers can list their products for sale. The sellers themselves are responsible for their respective listings and products on the website. The opposite party is neither responsible for the products are listed in the website by various third-party sellers, nor does the opposite party interference or influence any customer in any manner. The opposite party is not involved in the transaction between the customer and seller. The condition relating the customers use of the website and specifically agreed by the customers, clearly states that the respondent is only facilitator and cannot be a party to or control in any manner any sale transaction on the website. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller.
5. Opposite party submitted that the complainant does not fall within the definition of consumer under the Consumer Protection Act 1986, since the complainant has not placed an order for any goods from opposite party nor has paid any consideration to the opposite party. The purchase done by the complainant was from the independent third-party seller and so there is no consumer relationship. The submission of the opposite party is that the subject matter of dispute is restricted to non-receipt of Titan Analogue Silver watch Dial Men’s watch purchased by the complainant on the website from Vee Ess sales pvt. Ltd and the said order was successfully delivered to the complainant intact condition at the registered address provided by the complainant. The opposite party submitted that, after delivery of the product complainant approached opposite party alleging non-receipt of the product from the seller and accordingly best possible assistance was provided to the complainant and specified team of opposite party conducted necessary investigation, which revealed that the product was delivered to the complainant intact condition. Hence complaint is bad for misjoinder of parties and the opposite party is an unnecessary party who has been wrongly arrayed as party in the complaint without any cause of action. The opposite party also submitted that to see the real fact of the allegation requires thorough investigation for collecting of evidence, subject to cross examination of witness of the parties, requires deposition of evidence and trial and so that cannot be done in a proceeding under the Consumer Protection Act. The complaint involves complicated questions of law and fact and so beyond the jurisdiction of the Forum.
6. The opposite party also contended that the seller of the product has not been impleaded as party in this complaint. So, the contention of the opposite party is non joinder of necessary party and as per the law the opposite party is only an e-commerce entity and there is no liability towards the complainant.
7. The opposite party contended that the relationship shared between ASSPA and seller is on a principal-to-principal basis and either of the parties are neither willing, nor assume any responsibility for any action, inaction, warranties, liabilities, etc. qua the other. The complainant without any reason impleaded the opposite party in the matter. The product is neither sold nor offered for sale by ASSPA. It is also submitted that as an intermediary the opposite party is not obliged to police or monitor content in their market place and cannot be held liable for any third-party data, information etc hosted in their market place. The opposite party complies with all the obligations as imposed on an intermediary by the information technology act 2000 and the rules under the Information technology (intermediaries guide lines) rules 2011. It is submitted that the opposite party has lakh of product listed on his flat form by more than a lakh of sellers approximately and so virtually and literally impossible for an intermediary of the scale of opposite party to verify the genuine / veracity of every product and every seller listed on its market place. The contention is the intermediary has no obligation under law to filter its market place and cannot be burdened with the task of check in the goods dealing lists on its market place.
8. The contention of the opposite party is that regarding the delivery, the averment of the complainant is not correct. According to the opposite party they conducted an investigation which revealed that correct product was delivered to complainant in intact condition and the carrier i.e., delhivery the carrier confirmed that the weight of the package was 250 gms at the time of delivery. The opposite party reiterate the contention that the complainant had received the package without any tampering so the question of credibility of the allegation of the complainant arises. The opposite party contended that the allegation of cheating has raised by the complainant, which is beyond the jurisdiction of the Consumer Disputes Redressal Forum. The opposite party has got a contention that the issue is to be decided exclusively jurisdiction of the courts of Delhi as per the terms and conditions. The allegation of the complainant is without any evidence but only bald allegations. Hence the prayer of the opposite party is that the complainant is not entitled to any relief as prayed against the opposite party.
9. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 and A2 and also MO1.
Ext. A1 is copy of email issued by the opposite party to the complainant on 20/02/2019. Ext. A2 is tax invoice for Rs.3,495/- dated 04/02/2019. MO 1 is empty container delivered to the complainant. The opposite party filed document and it is marked as Ext. B1. Ext. B1 is copy of terms and conditions of Amazon seller services Private Limited.
10. Heard the complainant and opposite party, perused affidavit and documents.
The complainant side filed notes of argument also.
11. The following points arises for consideration: -
- Whether the complainant is entitled to get back the cost of Rs.3,495/-?
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost?
12. Pont No.1 and 2
The grievance of the complainant is that he ordered a Titan Analog silver watch dial men from the opposite parties on 04/02/2019 for a consideration of Rs.3,495/-. The complainant was delivered a container on 11/02/2019 which supposed to carry the ordered item. While opening the container in front of the delivery boy it revealed another box therein as “Titan octane” and when the second box opened there was neither the ordered item nor the invoice inside the box. The opposite party is not disputing the order and payment of the cost but the case of the opposite party is that the ordered article had delivered to the complainant properly, intact.
13. Now the question is whether the article ordered was delivered to the complainant or not. The specific case of the opposite party is that they conducted enquiry and they are of the view that article has been delivered to the complainant. It is submitted that the delivery was confirmed through the agent of the independent third-party seller Vee Ess sales Pvt. Limited and at that time of delivery the weight of the package was 250 gms. But the complainant has taken steps to examine the delivery boy and for that complainant had filed IA 180/2020. The opposite party opposed the petition stating that the delivery boy of the opposite party was one Mr. Mohamed Riyas at the relevant time and he is being abroad, cannot be examined. On the other hand, the complainant has got a specific case that he opened the container in presence of the delivery boy. The understanding between the complainant and opposite party regarding the delivery of article ordered are on free of cost. So admittedly the delivery boy is acting on behalf of opposite party and a competent person to depose to the fact. More over the complainant herein produced the container before the Commission and it is marked as Ext. MO1. The commission has verified the weight of MO1 using franking machine and it is found more than 237gm. The case of the opposite party is that the weight of container at the time of delivery was 250gm. So, it is not correct to conclude that the weight of the ordered Titan analog silver watch dial men was only of 17 gms and there is no evidence also to find the weight of watch was 17 grams. So, it can be presumed that the complainant ordered the so-called titan analog silver watch dial men, but delivered an empty container. If that being the fact the complainant is entitled to refund the cost of the watch Rs.3,495/-.
14. The specific contention of the opposite party is they are unnecessary party to the complaint since they are only providing online market place wherein independent third-party sellers can list their product for sale. The submission is that they are neither a seller nor offering to sell any product but merely provides online market place. The sellers themselves are responsible for their listings and products on the website. The opposite party is neither responsible for the products listed in the website by various third-party sellers, nor does the opposite party interference or influence any customer any manner. The opposite party is not involved in the transaction between the customer and seller. The opposite party only facilitating the transaction between the parties. The opposite party also contended that the subject matter in dispute is non receipt of titan analog silver watch purchased by the complainant and the said order was successfully delivered to the complainant intact condition at the registered address provided by the complainant.
15. It is already found that the article ordered by the complainant was not delivered to the complainant but delivered only an empty container. So, the question of responsibility of the opposite party arises. The vehement contention of the opposite party is that they are not responsible for the missing of ordered article. On receipt of information regarding the issue they enquired about the fact and found that the article has been delivered to the complainant. But from the records and from the averments there is no course of action opted by the opposite party to find out the truth has been explained. The complainant has stated that he was not asked about the complaint and also revealed that the delivery boy was also not brought to the picture. That being the fact the contention of the delivery regarding the article cannot be accepted. If the opposite party had no responsibility to enquire about the grievance the opposite party need not have conducted an enquiry. The submission of the complaint is that the consumers are not choosing any particular seller when they are deciding to purchase a product. The consumer normally creates an account with the opposite party and thereafter they select a product displaced from the website. It is upon the opposite parties, the consumer put their trust. The product displaced by the opposite party site is to attract the consumer. Normally the complainant considering the good will maintained by the opposite parties, preparing to purchase the product. So, the opposite party like sellers are not without any responsibility. The argument of the Complainant is that if the opposite parties are providing place for selling articles, in effect they are acting as an agent and so they are liable for the loss suffered by the consumer. The complainant placed reliance on decision in emerging India real assets pvt limited Anr VS Karamchand and Anr, the National Disputes Redressal Commission observed that an agent who sell a product is duty bound to ensure its quality, and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, along with manufacturer of the product. The complainant also placed reliance in the decision of amazon seller service private limited Vs Gopalakrishnan by State Consumer Redressal Commission, Chandigarh, that it was bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality and standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased cannot escape its liability.
16. The responsibility of online market place entity is always an issue to be addressed properly. The National Commission as well as various State Commissions had occasions to consider the issues in different matters. One of the issues is that the market place entity provides only platform to facilitate the transaction between the buyer and seller and there is no privity of contract between the consumer and the market place entity and so they do not have any liability towards the buyer, the consumer. It is also is the version of online entity that they do not accept any consideration from the buyer consumer. The Hon’ble National Commission discussed in M/s Hello travel Vs Harish C Jain Anr case on 27/02/2020 about the decision in amazon seller service private limited Vs Gopal Krishnan that, it was bounden duty of the facilitator to ensure that goods sold through any individual are manufactured as per quality and standard. If the goods purchased through online are found not up to the mark, online portal through which goods were purchased, cannot escape its liability. The plea of no liability can be placed upon the appellant (amazon) was rejected. It is also observed in the decision that the online market entity cannot escape its liability and take benefit by merely saying that it is not preview to the negation, offer, acceptance /payment which took place between online market place entity and the consumer. In effect it is a kind of selling or service providing platform. It has to be ensured the quality of the product coming to its platform for sale or this service, which is being provided through in by third party. By ensuring the quality of the product and services hired through their website / portal to the complete satisfactions of the consumers, they can fetch more confidence. It is also mentioned in the order that lot of complaints Qua the products purchased online or services hired are increasing day by day which is creating a shabby pictures of online selling ports/ search engines. It is held that once the complainant approached the online platform it is the bounden duty, responsibility of the appellant to assist the complainant and provide him alternative arrangement. But not to try to escape from the liability one way or the other. Services provided through its website including inter alia from payments made by the consumers. It is also to be noted that while a consumer approaching an online platform for the purchase of product or service not depending on the product alone. But mostly depending the credibility of online entity. The complainant who is not aware of the privity of contract between the complainant and the online platform. So, it is advisable to have a disclaimer that the online entity will not have any responsibility on account of defective product and deficiency in service availing through the platform. So, we do not find any merit in the contention regarding the responsibility towards the consumers and the online plat form is not providing service like a post office or the delivery agent of a postal service. It can be seen that the Consumer Protection (e-commerce) rules 2020 provides rights and liabilities of ecommerce entities. But the present complaint is before enactment of ecommerce rules 2020 under the Consumer Protection Act. But the ecommerce rules 2020 do not provide responsibility for none delivery of goods and delivering fake container like in this complaint. Hence the fact from the matters discussed by the Hon’ble National Commission, the complainant herein submitted that opposite party had to photographs of the product and measure its weight before dispatching it. In this complaint the opposite party had not taken any steps to establish the same. The opposite party had categorically admitted the grievance of the complainant through Ext. A1 email messages. The wordings of the responsible person from the opposite party called Deepika is as follows.” This is Deepika from Amazon customer service. This is regarding the order id#404-0136970-0121103. I understand that you have not received your item from order #404-0136970-0121103. We have investigated this matter with the carrier. Based on the results of our investigation, we won’t be able to provide a replacement or refund for this order at this time. Thank you for your understanding. Warmest, regards Deepika.K Amazon.in “. So, it is also already held that the complainant has not received the article ordered. The opposite party admitted the same, the responsibility also as stated above the opposite party cannot wash away contenting non-joinder of necessary party, issue of privity of contract and non-receipt of consideration. So, the Commission of the view that the opposite party is responsible for the bad experience from the side of opposite party. The opposite party has not produced the terms between the e-commerce entity and the seller. The opposite party is at liberty to realize any amount paid as compensation and cost as the proceedings to the complainant from the so-called seller. Hence, we are inclined to allow the complaint.
16. The opposite also contended that the issues to be decided exclusively within jurisdiction of courts of Delhi as per the terms and condition, complaint involves complicated questions of law and fact, to see the real fact of the allegations require thorough investigation for collecting evidence, subject to cross examination of witness of parties, requires deposition evidence and trial etc. and so the issue is beyond the jurisdiction of Consumer Protection Act. We have gone through the entire averments, allegations and documents of the parties in this complaint and we find that the complaint is a consumer as defined in the Consumer Protection Act and the Consumer Disputes Redressal Commission is competent to consider the complaint and has got territorial jurisdiction also to consider the matter and so do not find any merit in the contention of the opposite party.
In the light of above fact and circumstances we allow the complaint as follows:
- The opposite party is directed to refund the cost of the product Rs.3,495/- to the complainant with interest at the rate of 9% per annum from 04/02/2019.
2) The opposite party is directed to pay Rs.25,000/- as compensation to the complainant on account of deficiency in service and unfair trade practice from the opposite party and thereby caused in convenience hardship and mental agony to the complainant.
3) The opposite party is also directed to pay Rs.10,000/- as cost of the proceedings.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the above said entire amount will carry interest @ 9% per annum from the date of this order till realization.
Dated this 2nd day of Agust, 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 and A2
Ext.A1: Copy of email issued by the opposite party to the complainant on 20/02/2019.
Ext.A2: Tax invoice for Rs.3,495/- dated 04/02/2019.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1
Ext.B1: Copy of terms and conditions Amazon seller services Private Limited.
MO1: Empty container
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
