Chandigarh

DF-II

CC/32/2021

Chander Shekhar - Complainant(s)

Versus

M/s Amazon Seller Services Pvt. Ltd. - Opp.Party(s)

T.S. Sudan Adv

22 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	32/2021
Date of Institution	:	17.01.2021
Date of Decision	:	22.07.2024

 

                                       

                       

 

Chander Shekhar Son of Sh. Jagan Nath aged about 49 years resident of H. No. 1506-C, Sector-38-B, Chandigarh.

.....Complainant

VERSUS

1.     M/s Amazon Seller Services Pvt., Ltd., Eros Plaza, Ground Floor, Eros Corporate Tower, Nehru Place, New Delhi-110019 through its Managing Director. (Email Id.-services.amazon.in)

2.     M/s Amazon India, (www.Amazon.in) Regd. Office: Amazon World Trade Center, Brigade Gateway, 8th Floor, 26/1, Dr. Raj Kumar Road, Malleshwaram(W), Banglore-560055, Karnataka, India, through its Managing Director/Head.

(Email id. cs-reply@amazon.in, grievance-office@amazon.in and amznindpr@amazon.com,)

…..Opposite Parties

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
PRESENT:-
	Sh.T.S.Sudan & Sh.Jatin Parkash, Counsel for complainant Sh.Chetan Gupta, Counsel for OPs.

       

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.         The complainant has filed the present complaint alleging therein that he purchased a mobile phone make I-Phone 11 along with accessories i.e. ear pods, power adaptor, cable for Rs.48,999/- through the website of OPs vide invoice dated 18.10.2020 for gifting the same on Diwali. He made advance payment of Rs.50,731/- including the price of Rs.1732/- of another product.  He was surprised to see that the accessories were found to be missed and the OPs have promised the replacement along with the exchange of the product on the date of 02.11.2020. On 02.11.2020, the OPs received back the product against receipt but did not give the replacement on that day and promised to deliver the product on 11.11.2020. However, the product was not delivered on 11.11.2020 and promised to be delivered on or before 18.11.2020 and later on 26.12.2020 but the same was not delivered. Thereafter, the OPs through e-mail cancelled the order and showed their inability to replace the product.  The complainant took up the matter with the Customer Support System and Customer Call Center of the OPs many times but to no effect.  Due to the act and conduct of the OPs, the complainant could not present the gift to his son before Diwali and even till date he has not been able to do the same.  Finally, the complainant got served a legal notice 17.12.2020 upon the OPs but they replied the said notice by stating that they are not able to trace the details of the order placed. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to deliver the mobile phone in question or in the alternative to refund Rs.48,999/- along with accessories with interest, compensation for mental agony and physical harassment as well as litigation expenses.
2.         OP No.1 (Amazon Seller Services Pvt. Ltd.) has also filed written version stating that it operates and manages the e-commerce marketplace wherein independent third party sellers list their products for sale. 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 e-commerce marketplace. The answering Op has no influence or interference in the said process. The answering OP is not manufacturer of the products listed on the e-commerce marketplace and  the answering OP is not liable for performance of the sale agreement executed by the buyer and the seller on the e-commerce market place.  It has been stated that the complainant purchased the mobile phone in question from independent third party seller i.e. Darshita Aashiyana Pvt. Ltd.  which has not been impleaded as a necessary part. The transaction was entered into between the complainant and the independent third party seller was responsible to pack, seal and deliver the product to the complainant  with no role assign to the OP. Therefore, any liability or obligation in relation to delivery can only be attributable to the independent third party seller and not on the OPs which is merely operating an e-commerce marketplace.  It has further been stated that the replacement order was cancelled by the independent third party seller for non-availability of the product at the time of replacement and thereafter issued a refund of Rs.48,999/- to the complainant on 19.02.2021 vide reference No.74766510302043094129824 and the complainant was informed regarding the same vide e-mails dated 18.12.2020 and 19.02.2021. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on their part, the OPs prayed for dismissal of the complaint.
3.         The complainant filed replication to the written reply of the Opposite Parties and controverted their stand and reiterating his own. It has been stated that OP No.1 in a very clever manner refunded the amount of Rs.48,999/- on 19.02.2021 just to save themselves from the compensation/accessory charges/interest etc.  Remaining averments have been denied.
4.         The parties filed their respective affidavits and documents in support of their case.
5.         We have heard the Counsel for the contesting parties  and have gone through the documents on record.
6.         In view of the specific objections taken by the OPs in its written version regarding the maintainability of the complaint, it is necessary to decide as to whether the complaint qua the OPs is maintainable or not?.
7.         Section 79 of the Information Technology Act, 2011 is necessary to decide the controversy in hand and the same is reproduced as under:-

Section 79:-     Exemption from liability of intermediary in certain cases.

(1)    Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2)    xxxxxxxx

(3)    xxxxxx

                From the bare perusal of the aforesaid extracted provision, it is observed that  the an intermediary (i.e. OPs) shall not be liable for any third party information, data, or communication link made available or hosted by him. Thus, the complaint filed by the complainant against the OPs is not maintainable.

                 It is further observed from Annexure OP-1/3 i.e. the Tax Invoice/Bill of Supply/Cash memo placed on record as Annexure OP-1/3 that the mobile phone in question was sold by the third party i.e. M/s Darshita Aashiyana Pvt. Ltd., Plot No.44, Arrjavv Industrial & Warehouse Park, Dankuni, Near Coal India Complex, Hooghly, West Bengal-712310. However, M/s Darshita Aashiyana Pvt. Ltd. has not been impleaded as a proper and necessary party in the complaint.

8.         In view of the above discussion, the complaint is not maintainable qua the OPs and the same is dismissed with no order as to costs.
9.         The pending application(s) if any, stands disposed of accordingly.
10.           This order be complied with by the OPs within 45 days from the date of receipt of its certified copy.
11.         Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission 22.07.2024
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(B.M.SHARMA) MEMBER