Haryana

Ambala

CC/159/2021

D.N. Sharma - Complainant(s)

Versus

Puma Sports India Pvt Ltd - Opp.Party(s)

In Person

02 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	159 of 2021
Date of Institution	:	12.04.2021
Date of decision	:	02.02.2023

 

D N Sharma S/O Om Parkash Sharma, Resident of House No-18-f, New Model Colony, Behind Old Session Court, Ambala City, Distt- Ambala (Haryana).

          ……. Complainant.

                                                Versus

1. PUMA SPORTS INDIA PVT LTD, M/S DTDC, KHASRA No- 27/9, Intenal Road, Kapashera, New Delhi (Through its Prop)
2. Amazon India, Regd Office: Brigade Gateway, 8th Floor, 26/1, Dr Raj Kumar Road, Malleshwaram (W),Bangalore-560055 (Through its MD)

 

 ….…. Opposite Parties

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Complainant in person.

                   OP No.1 already ex parte.

                             Shri Rajiv Sachdeva, Advocate, counsel for the OP No.2                 

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

 (a) To replace the Shoes in question with new one upgraded model or to refund the amount of Rs.5400/- paid towards its price with interest @ 18% per annum from the date of purchase till realization.

(b) To pay Rs. 30,000/- as compensation on account of mental & physical harassment as well as monetary loss caused to the complainant.

(c) To pay Rs 5000/- litigation charges.

Or

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that on 16-12-2020 the complainant had placed an order to OP No.1 through OP No-2 for purchase of one pair of Shoes of PUMA Sports vide order No-406-0668805-7283534 and received delivery of the same through OP No-2 (Amazon) with Invoice Number: IN-XNMP-56786, Invoice Details: DL-XNMP-175227701-2021 dated 16-12-2020, for which he paid an amount of Rs 5,399/-. The complainant was using the same shoes with good maintenance, but after two months from the date of purchase thereof, it was found torn from both sides, as a result of which its sole got separated. Thereafter, the complainant approached OP No.1 and complained about the damaged condition of the shoes and requested the OPs to replace it, as the same suffered manufacturing defect therein, because it got damaged within two months only i.e. during warranty period but the OPs failed to do so. Hence this complaint.
3.           Upon notice, none appeared on behalf of the OP No.1, before this Commission, therefore, it was proceeded against ex-parte vide order dated 28.09.2021.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to bad for mis-joinder of parties etc . On merits, it has been stated that the complainant has wrongly impleaded 'Amazon India' as OP No. 2 in the present complaint, whereas the entity operating - www.amazon.in ("e-commerce marketplace") is Amazon Seller Services Private Limited ("ASSPL"), having its registered address at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore-560055, Karnataka, India. It is important to clarify that ASSPL owns and operates the e-commerce marketplace www.amazon.in. Therefore, the complainant has filed the instant complaint without verifying the facts and exercising reasonable due diligence and therefore has wrongly impleaded the OP No. 2 as a parties to the complaint.  The complaint of the complainant is restricted only to delivery of defective product purchased from OP No.1 and OP No.2 is only electronic service provider of the said product, which provides e-commerce marketplace to third parties. Product liability action can be brought by a consumer against its manufacturer or seller. All the invoices for the sale transactions between the buyers and the third party sellers are tax invoices and OP No.2 has no role to play in the same. Based on RBI directions, OP No.2 is not charging anything from the complainant for the services provided either directly or indirectly and  is providing services to the buyers who have access to the internet. No expert report has been placed on record by the complainant to prove that the shoes in question suffered from manufacturing defects.  Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint.
5.           Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 and C-3 and closed the evidence of the complainant. OP No.2 did not tender evidence, despite availing number of opportunities, as such, its evidence was closed vide order dated 05.01.2023.
6.           We have heard the complainant and learned counsel for the OP No.2 and have also carefully gone through the case file.
7.           Complainant submitted that though the shoes in question were found defective and damaged within a short span of its purchase, yet, OP No.1 by neither replacing it with a new one nor refunding the price thereof is deficient in providing service and guilty of adoption of unfair trade practice.
8.           Learned counsel for OP No.2 submitted that since OP No.2 was only electronic service provider of the said shoes on behalf of OP No.1 and was neither the manufacturer or seller of the said shoes, as such, complaint against it be dismissed.
9.           It is evident from the tax invoice dated 16.12.2020, Annexure C-1 that the complainant had purchased one pair of shoes from OP No.1 for an amount of Rs.5,399/- including  shipping charges. It is also coming out from the record that thereafter the complainant lodged complaint, Annexure C-2 with OP No.1 to the effect that the said shoes are defective and he sought replacement/refund. However, except feeling apology vide document Annexure C-3, there is nothing on record that the grievance of the complainant was redressed by OP No.1. It may be stated here that it is the definite case of the complainant that he was using the same shoes with good maintenance, but after two months from the date of purchase thereof, it was found torn from both sides, as a result of which its sole got separated and when he approached OP No.1, his grievance was not redressed. It is significant to mention here that, as stated above, notice of this complaint was sent to OP No.1 seeking its version, yet, nobody appeared on its behalf, despite service,  as a result whereof, it was proceeded ex-parte vide order dated 28.09.2021. This act of the OP No.1 draws an adverse inference against it. The non-appearance of the OP No.1 shows that it has nothing to say in its defence against the allegations made by the complainant. Therefore, the assertions of the complainant went unrebutted & uncontroverted. Thus, by neither replacing the defective shoes with a new one to the complainant nor  refunding the amount paid by him, the complainant has been caused a lot of mental agony and harassment, which act  amounts to deficiency in providing service and adoption of unfair trade practice on the part of OP No.1.
10.           Since OP No.2 was only electronic service provider of the said shoes on behalf of OP No.1 and there is no allegation with regard to delay in delivery of the said shoes and at the same time, OP No.2 was neither the manufacturer or seller of the said shoes, as such, no deficiency in service or adoption of unfair trade practice can be fastened upon it. Resultantly, this complaint stands dismissed against OP No.2.
11.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and allow the same against OP No.1 and direct it, in the following manner:-
    1. To refund the amount of Rs.5,399/- to the complainant.  
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation costs.       

                   The OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OP No.1 shall pay interest @ 4% per annum on the awarded amount, for the period of default, till realization. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced -02.02.2023

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President