Haryana

Panchkula

CC/144/2021

SH AJWINDER SINGH. - Complainant(s)

Versus

M/S AMAZON INDIA . - Opp.Party(s)

IN PERSON

22 Aug 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                               

Consumer Complaint No	:	144 of 2021
Date of Institution	:	22.02.2021
Date of Decision	:	22.08.2023

 

 

Sh.Ajwinder  Singh S/o Sh. Satnam Singh, House No.1129 First Floor, Sector-21, Panchkula(Haryana).

    ..….Complainant

Versus                                                                  

1.     Amazon Seller Services Private Limited (ASSPL) having its         registered address at Brigade Gateway, 8^th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram(W), Banglore-560055, Karnataka,     India.

2.     M/s Appario Retail Private Ltd through its authorized         Representative, Survey No.38/2,  & 40, Jadigenahalli Hobli,        Kacharakanahalli Village, Hosakote Taluk, Bengaluru(Bangalore), Urban Bengalore, Karnataka-562114.

3.     M/s CMS IT Services Private Limited through its authorized       representative, Plot No.24/8, Industrial Area Phase-II, Chandigarh-160002.

4.     M/s CMS IT Services Private Limited through its authorized        representative, No.236(Old Sy No.291-92/1A), Venkatadri IT   Park, Konappa Agraha, Village Begur Hobli, Bangalore South Taluk, Electronic City Phase-1, Bengaluru-560100, Karnataka.

5.     M/s Acer India Private Limited throught its executive director,    Embassy Heights, 6^th Floor, No.13, Magrath Road, Next to Hosmat   Hospital, Bagalore-560025, Karnataka, India.

                                                                      ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

                         Dr. Sushma Garg, Member.

                         Dr. Barhm Parkash Yadav, Member. 

 

For the Parties:   Complainant in person.

                         None for OP No.1.(evidence closed vide order dated                                29.05.2023).

                        OPs No.2 & 3 already ex-parte vide order dated                              19.08.2021.

                        OP No.4 already given up vide order dated                                     18.10.2021.

                        Sh. Akhil Bhasin, Advocate for OP No.5.

                         

                       

ORDER

(Satpal, President)

1.Briefly stated, the facts, as alleged in the present complaint, are that the complainant has purchased the product, namely, Acer Nitro 5 AN515+54 15.6+inch Laptop(9^th Gen Intel Core i5-9300H, Processor/ 8GB/1TB+256GB SSD/Windows 10, Home 64-bit/NVDIA GeForce, GTX 1650 with 4GB of dedicated GDDR5 VRAMGrasphics), Black Laptop for Rs.59,990/- on 07.06.2020 vide invoice no.INBLR5-127641 dated 07.06.2020 from M/s Appario Retail Private Ltd. through OP No.1 i.e. M/s Amazon  India. The payment qua the purchase of the said product was made before delivery of the product, which was delivered to the complainant on 14.06.2020 at billing and shipping address as mentioned on the invoice. The product was purchased for the personal use/for his children for attending the online classes during the Covid-19 situation. It is alleged that the laptop was giving problem from the date of its purchase. An email along with photographs of the laptop was sent to the OP No.1 on its ID i.e.

2.Upon notice, OP No. 1 appeared through counsel and filed written statement contesting the complaint by raising preliminary objections that complaint has incorrectly impleaded ‘Amazon India’ as OP No.1 in the instant complaint filed before this Commission whereas the entity operating the e-commerce marketplace:www.amaxon.in (E-commerce marketplace)is Amazon Seller Services Private Limited (hereinafter referred to as ASSPL) having its registered address at Brigade Gateway, 8^th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore-560055, Karnataka. It is submitted that an order to purchase a product, namely, “Acer Nitro 5 AN515-54 15.6-inch Laptop (9^thGen Intel Core i5-9300H processor/8GB/ 1TB+256GB SSD/ Windows 10 Home 64-bit/VVlDlA GeForce GTX 1650 with 4 GB of Dedicated GDDR5 VRAM Graphics), Black vide order bearing no.405-6859300-4847536 on 07.06.2020 was placed through the account of one Pradeep(Account holder) from the independent third party seller, namely, Appario Retail Pvt. Ltd.(OP No.2) which is listed on the e-commerce marketplace operated by ASSPL, it is submitted that the complainant has failed to explain his relationship with the Account holder, and has filed the present complaint without any locus.  It is submitted that ASSPL operates and manages the e-commerce marketplace: i.e. www.amazon.in where independent third party sellers list their products for sale. The ASSPL merely provides an e-commerce marketplace for the transaction of sale that take place between an independent third party seller and a buyer. It is alleged that all the orders placed by the buyers are directly placed with the independent third party sellers listed on the e-commerce marketplace. The ASSPL merely provides an e-commerce marketplace where the sale transaction is entered by and between the buyer and the independent third party. It is further stated that ASSPL is an ‘intermediary’ as defined under the Information Technology Act, 2000 and complies with all the obligations laid down for intermediaries in the Information Technology (Intermediaries Guidelines) Rules, 2011. As per Section 79 of the IT Act, ASSPL being an intermediary, is not liable for any information/material/ warranties/representations made by the independent third party sellers on the e-commerce marketplace.  It is submitted that ASSPL is neither the manufacturer nor the product seller; hence not liable for the issues related to products listed on its e-commerce marketplace of ASSPL. It is submitted that consideration towards the product the product was made by the Account holder directly to the Independent Third Party Seller, i.e. Appario Retail Pvt. Ltd. into the nodal account in accordance with the RBI directions dated 24.11.2009.  It is alleged that a product ordered by the buyer with any independent third party seller on the e-commerce marketplace of ASSPL is packed, sealed, shipped and delivered to the buyer by the independent third party seller alone with no role assigned to ASSPL. In the instant case, the Independent Third Party Seller i.e. OP No.2 delivered the product to the shipping address. The complainant instead of contacting the independent third party seller i.e. OP No.2 erroneously contacted the customer service of ASSPL in June 2020 and complained that a defective product had been delivered to him. The ASSPL thereafter forwarded the grievance of the complainant to the OP No.2. The contract of warranty with respect to the product was entered into between the Account holder and the Manufacturer i.e. OP No.5. Therefore, the liability to rectify the defects in the product can be fastened on the manufacturer of the product i.e. OP No.5 through its authorized service centre i.e. OP No.3. The ASSPL which only provided the e-commerce marketplace cannot be held liable for rectification of alleged defects in the product. On merits, pleas and assertions made in the preliminary objections have been reiterated. The contract of sale of product on the website is strictly a bipartite(contract between the customer and seller) and thus, it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.

                Notice was issued to the OPs No.2 through registered post, which was received back with the report of ‘Refusal; accordingly, it was proceeded ex-parte by the Commission vide its order dated 19.08.2021.           Notice issued to OP No.3 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OP No.3; it was  deemed to be served and thus, due to non appearance of OP No.3,  it was proceeded ex-parte by the Commission vide its order dated 19.08.2021. The OP No.4 was given up, vide a separate statement made by the complainant, on 19.08.2021.

                Upon notice, OP No. 5 appeared through counsel and filed written statement contesting the complaint by raising preliminary objections mentioning that it is engaged n the manufacturer/import of desktop computer systems, servers, laptops, notebooks, monitors, projectors, tablet PCs and supporting IT peripherals, and trading thereof, and provision of ancillary services connected therewith. It is submitted that in the present complaint, the complainant did not issue a legal notice to it(OP No.5) and in the absence of such legal notice being served, OP No.5 was not given an opportunity to verify the factual position of the present matter, and as such could not offer an option to the complainant for settling  this dispute at its pre-litigation stage itself. It is further submitted that the OP no.5 is ready to replace the complainant’s laptop with an ‘Acer branded new laptop computer of reasonably similar configuration, as a gesture of goodwill, and towards the full and final settlement of the said consumer complaint and thus, it has been prayed that there is no deficiency in service on the part of the OP No.5 and as such, the complaint of the complainant is liable to be dismissed.       

3.The complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-14 in evidence and closed the evidence by making a separate statement. On the other hand, the evidence of the OP No.1 is hereby closed by this Commission vide order dated 29.05.2023. The learned counsel for the OP No.5 has tendered affidavit as Annexure R-5/A and closed the evidence..

4. We have heard the complainant, the learned counsels for the OP No.5 and gone through the entire record available on file, minutely and carefully.

5.None has appeared on behalf of OP No.1. Even its documentary evidence in the shape of affidavits etc in support of its contention was not tendered despite last opportunity and accordingly,  its opportunity to submit the same was closed by the Commission vide order dated 29.05.2023. However, it has raised several objections in its written statement, which are summarized as under:-

1. That the OP No.1 neither sells nor offers to sell any product and merely provides an online marketplace, where independent third party sellers can list their products for sale.
2. That the OP No.1 is neither responsible for the products that are listed on its Website by various third party sellers nor does it intervene or influence the customers in any manner, whatsoever. The sellers themselves are responsible for their respective listings on the Website including all representations and warranties for the products/merchandise sold by them without any liabilities on OP No.1.
3. That the OP No.1 is not involved in the sale transaction between the complainant and OP No.2 and that the contract of sale of product on its website, namely, www.amazon.in is strictly a bipartite. It is submitted that the role of OP No.1 is merely of an facilitator between the consumer and the seller; as such, it had acted as an intermediary through its web interface, who is exempted from the liability in view of the provisions as contained in Section 79 of Information Technology Act, 2000.
4. That the complainant does not fall under the category of consumer qua OP No.1 and further, there is no privity of contract between the complainant and OP as no consideration amount has been received by OP No.1 from the complainant.
5. That the order in question seeking the delivery of the product was placed through  account of one Pradeep(account holder) and thus, the complainant is not the user of e-commerce marketplace and have no locus-standi to file the present complaint.

6.The aforesaid objections raised by the OP no.1 in its written statement are not tenable in view of the fact that its role in the present transaction was not merely of a facilitator or intermediary as alleged by it because it was actively involved in the entire transaction commencing from the placing of the order till the acceptance of the return request made by the complainant by it vide email dated 23.06.2020(Annexure C-1). Evidently, it has admitted vide its email dated 14.06.2020 (Annexure C-4) that the issue of defect in the laptop was referred by it to its technical team. The complainant vide said email was advised by it(OP No.1) to contact its technical team, who had affirmed vide job-sheet dated 18.06.2020(Annexure C-5) that there was defect in the laptop, which required replacement. Further, the technical team again found the laptop defective vide job-sheet dated 21.06.2020(Annexure C-8). Moreover, the OP no.1 vide email dated 23.06.2020(Annexure C-10) had accepted the return request of the complainant.

7.Furthermore, the OP No.1 vide email(Annexure C-10) sent on 26.06.2020(Annexure C-12) while accepting the written request of the complainant had fixed the pick-up date as 24.06.2020 and 28.06.2020 respectively, which alone negates its contentions thatit has just acted as an intermediary; As such, the OP No.1 was actively involved in the entire transaction and by not resolving the issue of the complainant qua the defective product it has rendered itself liable for its deficient services.

8.Further, the plea taken by the OP No.1 that order was placed through the account of one, namely, Pradeep is also found baseless and meritless as the invoice(Annexure C-1) dated 07.06.2020 clearly  mentioned that name of  the complainant at billing and shipping address.

9.The OPs No.2 & 3 have preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, they were proceeded ex-parte vide order dated 19.08.2021 and thus, the assertions made by the complainant go unrebutted and uncontroverted against them.

10.The OP No.4 was given by the complainant on 18.10.2021 by making a separate statement.

11.The OP No.5 has not contested the complaint as it has offered to replace the laptop in question. The learned counsel, during arguments, has offered to resolve the issue being faced by the complainant by replacing the laptop in question with a new laptop having similar configurations and thus, has prayed for dismissal of the complaint.

12.On the other hand, the complainant reiterating the averments as made in the complaint as also in his affidavit(Annexure C-A) has prayed for acceptance of the complaint by directing the OPs to refund a sum of Rs.59,990/-  to him along with interest @13.50%p.a.

13.The contentions of the complainant alleging the laptop to be defective is well proved as per the remarks made by the technical team of OPs vide job-sheet dated 18.06.2020(Annexure C-5), Job-sheet dated 21.06.2020(Annexure C-8) and Job-sheet(Annexure C-14). Even the OP No.1 had accepted the return request of the complainant vide its email dated 23.06.2020(Annexure C-10) and 26.06.2020(Annexure C-12) but the defective product i.e. laptop was not picked up from the residence of the complainant despite the fact that pick up dated was fixed as 24.06.2020 and thereafter, on 28.06.2020. The OPs have failed to resolve the issue of the complainant despite the detailed representation made by him vide email(Annexure C-13). As such, the deficiency on the part of the Ops is writ large, for which, they are liable to compensate the complainant, jointly and severally.

14.In relief, it is found that the complainant has claimed the refund of Rs.59,990/- along with interest qua refund of the price of product/laptop, which is found reasonable and justified. In addition to it, he has also claimed compensation on account of mental agony and harassment.

15.As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1, 2, 3 & 5:-

1. To refund a sum of Rs.59,990/- to the complainant, along with interest @ 9% per annum(s.i.) w.e.f. its purchase i.e. 07.06.2020(Annexure C-1) till its realization subject to return of the laptop with accessories  to OPs, who shall get the same collected from the complainant through the authorized service centre or any other agency.
2. To pay a lump sum amount of Rs.10,000/- to the complainant  on account of mental agony, harassment and litigation charges.

                               

 16.  The OPs No.1,2,3 & 5 shall comply with the directions/ order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1,2,3 & 5. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on: 22.08.2023

 

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President