IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 29th day of October, 2024
Filed on: 19.01.2024
Present
- Smt. P.R.Sholy, B.A.L, LLB (President in Charge )
- Smt. C.K.Lekhamma . B.A. LLB (Member)
In
CC/No. 22/2024
between
Complainant:- | Opposite Parties:- |
Sri. Moneeth. U 1. Managing Director, Amazon India
Vadayattusseri Veliyil 8th Floor, Brigade Gate Way, 26/1,
Pathirapally.P.O, Alappuzha-688521 Dr. Raj Kumar Road, Malleswaram West
Banglore-560055
2. Authorized Signatory
Bhatia Electricals, Building 2(Wh 2),
Plot No. 12/Ps (IT Sector)
Hitech Defence & Aerospace Park,
Devanahalli, Bangaluru, Karnataka-562149
(Adv. P. Arun Krishnan)
ORDER
SMT.C.K.LEKHAMMA(MEMBER)
1. Brief facts of the complainant's case is that:
The complainant placed an order to purchase two EZVIZ-TY1 smart home-wifi CCTV cameras with the 1st opposite party's online shopping site on 30.12.2023. It was sold by the 2nd opposite party, the seller of the product. The payment was made through an SBI credit card. The products were delivered to the complainant on 2.1.2024 and both products were supplied in separate boxes. When the complainant unboxed the product, he found that opposite party didn't provide the base stand of one of the cameras, and the same was in a defective condition since it was not fixed properly. Further, the accessories seemed uncovered in that box, like the product delivered in the other box. Moreover, it seems that the barcode affixed to the said box is hidden with a sticker. Due to the above discrepancy, the complainant tried his level best to replace the said product, but there was no option to return or replace it. Thereafter, the complainant made calls to the customer care of the 1st opposite party on 3.1.2024 and explained his grievances. They informed him that the matter would be dealt with positively and advised him to contact them after the 8th of said month. Accordingly, the complainant contacted them on 10th of January, but his grievance was not redressed. The complainant alleged that there was no positive approach or proper steps for settlement from the part of said opposite party and the complainant categorically stated that in the complaint that he suffered monetary loss, mental agony and harassment from the unfair and deceitful practices adopted by the opposite parties which amount to deficiency in service. Hence this complaint and seeking the following reliefs:-
1. Direct the opposite parties to replace the defective product with a new one of the same make.
2. Direct the opposite parties to pay compensation to the complainant for their deficiency in service and costs of the proceedings
2. Version of the 1st opposite party in short is that:-
The complainant has incorrectly impleaded Opposite party No.1 along with Seller the opposite party No. 2 to confuse causes and liabilities between the 2nd opposite party and 1st opposite party.
3. The transaction of sale was executed by and between the complainant and the 2nd opposite party. The payment of consideration towards the impugned Product was made by the complainant to the 2nd opposite party in the nodal account set up in accordance with the RBI Guidelines.
4. The 1st opposite party does not charge the buyers on the e-commerce market place and consideration paid by the buyers towards purchase on the e-commerce market place is paid directly to the independent third party seller from whom the purchase is made through the nodal account.
5. The complainant approached the 1st opposite party on 3/1/2024 and asked for the said product to be replaced. Based on the complainant’s grievance the 1st opposite party took necessary steps and internally enquired into the matter, and it was clarified and duly shared by the internal teams that the correct product was delivered to the complainant in an intact condition on 2/1/2024.
6. Further it is found an X-ray image of the Product that verifies that the correct and complete product was delivered to the complainant in tamperproof packaging and no discrepancy was found with the Product. It is noteworthy to point out that despite being an intermediary the 1st opposite party duly addressed all queries raised by the complainant. It is submitted that a refund could not be intimated to the complainant as the Product was delivered to him in an intact condition as it was received from the 2nd opposite party.
7. The complainant through this complaint is only trying to obtain undue monetary gains from this opposite party by filing such frivolous complaint. It is submitted that the said complaint is liable to be dismissed in limine basis the false statements submitted by the complainant.
8. That the 1st opposite party operates and manages the e-commerce market place 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 (“IT Act”). 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 market place.
9. The Contract of Sale was executed by and between the complainant and the seller. Therefore, there is no privity of contract between the 1st opposite party and the complainant.
10. All customers who visit the e-commerce market place enter a ‘conditions of use’ where there is a clear understanding of the role of 1st 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 1st opposite party that it merely operates an e-commerce market place to facilitate sale transactions entered by and between the buyer and independent third party seller. Therefore, the complaint is baseless and there is no deficiency in service on the part of this opposite party and hence the complaint is to be dismissed.
11. Points that arise for consideration are as follows:-
1. Whether the complainant is entitled to get the replacement of the product in question?
2. Whether the opposite parties committed deficiency in service? If so what is the quantum of compensation?
3. Reliefs and costs?
12. The complainant appeared in person, he adduced oral as well as documentary evidence. Ext. A1 to A6 were marked on his side 1st opposite party adduced only documentary evidence Ext.B1 to B7 were marked. Thereafter we heard both sides. The second opposite party remained absent and proceeded against exparte vide order dt.1/3/2024.
13. Points No. 1&2:-
In the instant complaint, the complainant had ordered two EZVIZ CS - TY1 Smart Home CCTV cameras on 30.12.2023 from the online site of the 1st opposite party. The second opposite party is the seller of the said products. Both products were separately packed. Unfortunately, one product supplied was defective and did not provide the base stand of the same. Moreover, the accessories provided in said packet seem uncovered. Even though the matter was communicated immediately to the 1st opposite party through their customer care department, they didn't take any positive steps to solve the issue. Hence filed this complaint alleged unfair trade practice and deficiency in service.
14. The 1st opposite party filed version and contended that they are not the seller of the product and the same is being sold by the 2nd opposite party. The 1st opposite party is merely an intermediary for the display of products by 3rd party sellers and thereafter purchased by several buyers. They have provided only an e-marketplace and therefore, cannot be held liable for the 3rd party contract on its e-commerce site. Opposite party1 has denied all allegations and has prayed for the dismissal of the complaint.
15. There is no dispute with regard to the fact that the complainant purchased the disputed product on 30.12.2023. Ext. A1 invoice is the bill for two cameras. As per the evidence several communications were conducted between the parties. The learned counsel appearing for the 1st opposite party argued that they are only a facilitator and that at the time of registering himself on the website, the complainant had accepted Ext.B1, the ' conditions of use', which categorically provided that the contract of sale and purchase of the item was strictly bipartite contact registered seller and customer. Further, there was no privity of contract between the 1st opposite party and the complainant so Amazon is not responsible for any breach of contract between the complainant and the second opposite party, the seller. It is understood from the facts and evidence of the case that Amazon took possession of the product under dispute, ie, stored it in their warehouse and directly fulfilled the customer's order through delivery. Further, Amazon didn't inform the complainant of the identity or nature of their relationship with the seller (2nd opposite party) and the 1st opposite party controlled the entire sales transaction. In view of that the 1st opposite party bears some responsibility to the customers for the sale of defective goods through its platform. It can be seen that the 1st opposite party's role is not merely as a neutral intermediary but as an active participant in the transaction process. Accepting orders and placing them with third-party sellers (2nd opposite party), thus dismissing any notion of it being a mere facilitator. As per the records, the complainant immediately informed the discrepancy of the product supplied by the opposite parties and relevant information about the product was communicated to the 1st opposite party from time to time as per the direction of the 1st opposite party. Moreover, on perusal of the packet of the disputed product, it is found that the MRP of the product is hidden by using a sticker. The 1st opposite party has not been able to counter the above allegations. It is pertinent to note that there is no satisfactory evidence to prove that the 1st opposite party verifies the bonafide of the seller. The 1st opposite party, who accepts orders from customers, places the orders to the third party and concludes the contract once the goods are delivered, is not a simple intermediary. It is to be noted that the Ext A1 bill came from the 1st opposite party, which indicates that the 1st opposite party is a co-seller of the product. Moreover, opposite parties 1 &2 were in contract and agreement, so they were bound to replace the defective product, but they did not do so.
16. It is to be noted that Ext.B2, e-mail dtd.10.1.2024(Ext.A6) sent by the 1st opposite party to the complainant informed that they won't be able to provide a replacement or refund since they found an X-ray image( Ext.B6) of the disputed product that revealed the complete product was delivered in a tamper proof of packaging. It is to be noted that though the opposite party produced and marked documents on their behalf, they could not corroborate the evidence with support of the oral testimony of their concerned person. The decision rendered by.., the Hon'ble High Court of Kerala in. M/s PRS Hospital Killipalam, Thiruvananthapuram Vs. P. Anilkumar (2020 0 Supreme (Kerala) 883, 2021 KHC 1, 2021 (1) KLJ 923 is worthwhile in this case. It was so held that " There are four stages before a Court of law can rely upon a document. They are (i) marking of a document,(ii) admissibility of a document,(iii) proof of contents of the document, and (iv) evaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document, it does not become admissible in evidence, will still not render the contents of a document and is admissible in evidence, will still not render the contents of a document as 'proved'. When a document, admissible in evidence, is marked as still to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage, i.e., evaluation takes place. Evaluation of the document is a judicial exercise. Unless all these stages are done, a court of law cannot rely upon any document produced or marked before it."
17. In this case, opposite party could not satisfy any of the above conditions with respect to the documents produced by them. Therefore, those documents are not admissible in evidence.
18. At this juncture, the observation made by the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, is more relevant, the case titled Amazon Seller Service Pvt. Ltd. Vs. Vishwajith Tapia (3 December 2019, First Appeal No.544 of 2019.
It."The online marketplace of the company earns revenue each time a consumer clicks and visits its website. Moreover, the same is being done as per the terms and conditions between the online portal company and the sellers for consideration. It is the duty of the intermediary that it should verify the bonafide of the seller who sells the articles and products. Intermediaries are entitled and provide service enabling delivery of online contents to the end user."
The above decision is squarely applicable in this case.
19. As per the provisions of Sec. 2 ( 36)(VI)& Sec. 2 (37) of the Consumer Protection Act, 2019 the 1st opposite party came under the purview of "product manufacturer and product seller ". Therefore, they cannot escape from the responsibility as a manufacturer and as a service provider.
20. The 2nd opposite party chose not to appear before the Commission despite the service of notice and proceeded against exparte. It indicated that they had no convincing case. As a seller, the 2nd opposite party sold a defective product, it is also liable for deficiency in service. Therefore, the deficiency in service and unfair trade practice proved against the Opposite parties, and hence, both are liable to pay compensation to the complainant. In view of the aforementioned discussions, we have no hesitation to hold that both opposite parties are equally responsible for replacing the defective product with a new one with a fresh warranty and along with fresh accessories to the complainant
21. Point no.3:-
In the result, the complaint is allowed in part and the opposite parties 1&2 jointly and severally directed:-
1. To replace the defective camera with a new one of the same description with its accessories and provide a fresh warranty for the same to the complainant free of cost, in that event, the complainant is directed to return the disputed product with accessories supplied to the 1st opposite party.
2. To pay compensation to the complainant for its deficiency in service and unfair trade practice that has caused mental agony to the complainant to the tune of Rs 10,000/-(Rupees Ten thousand rupees only ), failing which said amount shall carry interest @9%p.a from the date of compliance of this order till realization.
3. To pay Rs.2000/-( Rupees Two thousand only) to the complainant as litigation costs.
The order shall be complied with within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission this the 29th day of October, 2024.
Sd/-Smt. C.K.Lekhamma.(Member)
Sd/- Smt.P.R Sholy (President-In-Charge)
Appendix:-Evidence of the complainant:-
PW1 - Moneeth.U (Complainant)
Ext.A1 - Tax Invoice bill with warranty Slip
Ext.A2 - Amazon product Description Screen Shot copy
Ext.A3 - Delivered Camera Image Copy
Ext.A4 - Photo print of the box with bar code
Ext.A5 - Pen Drive
Ext.A6 - Message
Evidence of the opposite parties:-
Ext.B1 - Copies of Conditions of use
Ext.B2 - Email dtd. 10/1/2024
Ext.B3 - Email dtd. 2/1/2024
Ext.B4 - True copy of Board Resolution dtd. 21/1/2023
Ext.B5 - Copy of Invoice dtd. 30/12/2023
Ext.B6 - Copy of X-ray image
Ext.B7 - Copy of RBI directions
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
