DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                  .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                            ..… MEMBER-I

                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)B.L.,                                                     ....MEMBER-II

 

CC. No.49/2022

THIS THURSDAY, THE 29th DAY OF SEPTEMBER 2022

 

Mr.S.Subash Kumar, 

No.17/1 A.P. Road,

2nd Lane Choolai, Chennai -600 112.                                             ……Complainant.

                                                                            //Vs//

Amazon.in,

Rep. by its Manager,

Plot No.40, S P Infocity 3rd Floor,

MGR Salai Veeranam Road,

Perungudi, (Near RMZ Millenia Business Park),

Chennai -600 096.                                                                             …..opposite party. 

 

Counsel for the complainant                              :   Party in Person.

Counsel for the opposite party.                         :   Mr.K.S.Jeyaganeshan, Advocate.

                         

This complaint is coming before us on various dates and finally on 13.09.2022 in the presence of  complainant who appeared in person and upon perusing the documents and evidences produced by both parties this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in online purchase made by the complainant with the opposite party along with a prayer to refund a sum of Rs.161/- with interest being the excess amount for the product undelivered and its delivery charges and to direct the correct product to be delivered as he ordered and to pay a sum of Rs.30,000/- towards compensation for the mental stress and financial compensation to the complainant.

Sum and substance of the complaint:-

 

The complainant placed an order online with the opposite party and got order No.408-1200038-5633124 for the product of Maddy Perfect Combo pack of Shoes & slippers for men in various sizes and the product of one was received on 11.11.2018 but that product was not the one which the complainant has ordered. Hence the complainant made a complaint to the opposite party for which they assured that it would be replaced by them.  The replacement of item was made on 12.11.2018 with an order No.408-171624-9731544 and the complainant received the product of one pair of shoes and one pair of slippers on 18.11.2018. But this time one pair of shoes was correct but one pair of slippers mismatches the product picture. Again the complainant made a complaint to the opposite party for which they informed that there was no possibility to replace the product and only refund could be made.  On 19.11.2018 the opposite party told the complainant to return the product to get the refund amount and to place a new order of the same item. The complainant checked for the same product but as there was price difference in that product, the complainant told opposite party that could not be done.  But opposite party gave the complainant an offer to place the order on the link which they provide and that the difference in the shipping charges will be returned to his account. Further to return the product which was received and to get back the refund amount.  On 19.11.2018 complainant made the request for the return of product. Return of the product date was set as 20.11.2018 and informed the complainant to return the product. The complainant placed a new order and made payment of Rs.435/- inclusive of delivery charges and got an order No.408-9369509-7454711 for the product of Maddy Perfect Combo pack of Shoes & slippers for men.  The product was delivered to the  home address when checked by the complainant there was only one pair of shoes and slippers were missing and till date the complainant had not received the refund for the previous order.  When the complainant made a complaint to the opposite party with regard to the refund they asked the complainant to send email and also to make a replacement order and amount of Rs.274/- was refunded to the complainant’s account. The complainant made a complaint in National Consumer Helpline on 28.11.2018 for delivery of the product and to refund the excess amount with compensation and got the docket No.1025999.  As there was no response, aggreived the present complaint was filed by the complainant for the following reliefs as mentioned below;

To refund a sum of Rs.161/- with interest being the excess amount of the product and its delivery charges;

 Correct product to be delivered as order placed;

 To pay a sum of Rs.30,000/- towards compensation for the mental stress and financial compensation to the complainant.

 Defence of the opposite party:

The opposite party has filed version disputing the complaint allegations stating that they were reputed company having large customer base and amongst others, manages and operates the website i.e. www.amazon.in.  It was submitted that ASSPL does not sell or offer to sell any product and neither advertise nor endorse any product or service on its website or anywhere else and it merely provides an online marketplace where independent third party sellers list their products for sale.  Therefore, the seller themselves are responsible for their respective listings and products on the website.  ASSPL was neither responsible for the product that are listed on the website by various third party seller, not does ASSPL intervene or influence any customers in any manner.  ASSPL was not directly involved in the sale transaction between the customer and seller.  The contract of sale of products on the website was strictly a bipartite contract between the customer and the seller.  It was submitted that the complainant contacted the customer support team of the answering opposite party no.1 and reported the issue about the above said product.  In this regard, the customer support team of the opposite party1 assisted the complainant in getting the replacement of the product from the Seller, consequently replacement of the product was delivered to the complainant vide order ID 408-1716324-9731544.  Thereafter, the complainant again contacted the opposite party 1 regarding the same issue.  On the complaint made by the complainant the opposite party 1 assisted the complainant in the best possible manner in getting the full refund of the amount for the said product.  Thus Rs.274/- had been added to the complainant‘s account in the form of Amazon pay Balance on 26.11.2018.  Therefore, the opposite party 1 had been unnecessarily and wrongly assigned as a party in the present complaint without any cause of action. The instant complaint was bad in law, which could not be sustained with respect to the opposite party 1, which was only a facilitator, where buyers and sellers meet independently without any intervention of the 1st  opposite party.  The seller in the present instance was Pricerite Etail and ASSPL i.e. opposite party no.1 was not involved in the contract of sale between the complainant and the seller.  It was submitted that this commission has no jurisdiction to try and decide the present complaint for the reason that no cause of action arose in favour of the complainant and against the opposite party and also because this commission lacks territorial jurisdiction.  It was submitted that neither the opposite party 1 has its registered or corporate office within the jurisdiction of this commission nor do they have any branch office.  There was no cause of action for filing the complaint and sought of the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A6 were marked on their side.  On the side of opposite party proof affidavit was filed but no document was marked

Point for consideration:

 Whether this commission was competent to try this complaint and whether this commission has territorial jurisdiction to decide the complaint?

Whether the alleged deficiency in service on the part of the opposite party in not refunding the amount has been successfully proved by the complainant by admissible evidence?

If so to what reliefs the complainant is entitled?

 Point No.1

On the side of the complainant following documents were filed in support of his allegations; 

Copy of Bill dated 05.11.2018 was marked as Ex.A1;

Replacement details dated 12.11.2018 was marked as Ex.A2;

Mail received from Amazon. in regarding new order link dated 19.11.2018 was marked as Ex.A3;

Copy of bill dated 19.11.2018 was marked as Ex.A4;

National Consumer Helpline complaint copy dated 28.11.2018 was marked as Ex.A5;

Amazon pay balance Statement marked as Ex.A6; 

Heard the Party in person/complainant and perused the written arguments filed by him.  Though written version filed by the opposite party they failed to appear subsequently and did not filed any written arguments and also did not make any oral arguments and hence they were called absent and this commission decided to consider the available materials to decide the complaint on merits.

The crux of the arguments advanced by the complainant/party in person is that for the order he placed as he did not get the product as per the order he ordered for the 2nd time as advised by the opposite party and also made a payment for Rs.435/- vide order No.408-9369509-74588711. The opposite party though assured refund and advised the complainant place an order, but the excess amount was not refunded to complainant. Thus aggrieved the party in person/complainant had filed the present complaint.

As preliminary objection is taken with regard to maintainability of the complaint, we decide to take it as a preliminary point.  On analysis we hold the complaint is maintainable taking support from various decisions rendered by the the National Consumer Disputes Redressal Commission & State Consumer Commissions. The Tripura State Consumer Disputes Redressal Commission, Agartala in Sri Animesh Baidya, S/o Late Satyabrata Baidya, C/o Sri Sunil Das, Jogendra Nagar, Near Vidyasagar Bridge, Agartala, District West Tripura Vs Amazon Seller Services Private Ltd. Vide order dt 30.07.2021, has discussed the liability  after considering various decisions held that

"13. In Vishwajit Tapia (surpa), the Honble State Commission, Punjab considered the Section 79 of the Information and Technology Act, 2000 and ultimately, held as under:-

14. Section 79 of the information and Technology Act, 2000, is a safe harbour provision subject to restrictions imposed in sub- sections (2) and (3) thereof. If an online intermediary has specific knowledge or has reasonable belief based on information supplied by the right holder about the contents and the intermediary fails to act despite such knowledge, online intermediary can be held liable for infringement. To prove actual knowledge obviously is very difficult. E-commerce portal is required to identify and report infringement. Suppose the HP informs an intermediary that it does not manufacture and sell mobile covers, thus, all products on its portal are counterfeit and must be removed. On that basis e- commerce portal/intermediary can insist that it must provide specified URL to act upon the request. internet Protocol (in short, "IP.) owner will need to put resources to constantly monitor online space and to report to the intermediary seeking its removal. Amazon has become a place where we can get everything quickly and have it delivered in 2 days. The products are coming from third-party sellers ie. products sold on Amazon marketplace merchants. Amazon marketplace serves as a sort of newspaper classified advertisements section, connecting potential consumers with the sellers in an efficient, modern and in a streamlined manner. Amazon places products on its shelves to the stream of commerce. Nowadays, the brands are warning consumers against purchasing products online.

15. Admittedly, users carry out activities on market place platform of the portal. Thus, they play an active role in facilitating the infringement conduct. Apparently, online marketplace operator portals appear to be responsible for infringements carried out by the users on their platform t is a very crucial and debatable issue. The liability and exemption of W the e-commerce portal acting as hosting service provider, in relation to posting of information provided by the recipients of its services, needs to and the facts of present be examined in the light of statutory provisions consumer complaint.``

  Further, the money (consideration) was paid only to the opposite party who received it on behalf of the Seller.  Hence, the purchaser of the product can very well be considered as a ’Consumer‘ and the opposite party as a ’Service Provider‘ as per the definitions of the Consumer Protection Act.

With regard to territorial jurisdiction, the opposite party’s address comes within the territorial jurisdiction of this commission.  Hence, we answer this point holding that the complaint is maintainable before this commission.

 

Point No.2:-

As per the written version filed by the opposite party their only contention is that they were only an intermediary, they did not sell the product directly and there was no contract between them and there was only a bipartite contract between the customer and the seller and hence they were not liable.  Such contention could not be accepted for the reason that when the complainant placed an order with the opposite party and did not get the desired product as per the order, the complainant only contacted the opposite party who advised him to place a fresh order and suggested for refund etc.  If at all the opposite party wanted to get exonerated from their liability they should have directed the complainant to contact the seller directly and they should not have involved themselves in advising the complainant with regard to replacement, placing new order, refund etc.  Once they have entertained the complaint of the complainant’s letter, they cannot be kept out of the purview of liability and hence this commission is of the view that the defence taken by the opposite party that they are only intermediaries between the seller and purchaser and they did not know anything about the replacement or refund of money could not be accepted. 

Further if they want to absolve from their liability they should make known to their users on their website that they were not responsible for the product ordered through their website.  In the absence of any such instructions given to the users of their website, this commission is of the view that they are responsible for the purchase of the products made through their website.  

On appreciation of the material evidence, the bill copy was produced by the complainant as Ex.A1 which shows that the Amazon has taken an order for the purchase of Maddy Perfect Combo pack of Shoes& slippers for men in various sizes on 05.11.2018 vide order No.408-1200038-5633124 from complainant.  In the said bill, it is seen three items were ordered along with delivery address and delivery option.  However, there is no mention about the seller.  Under the item ordered caption it is found that Maddy Perfect Combo pack of Shoes& slippers for men in various sizes and it was also found to be sold by pricerite Etail (seller profile).  However on perusal of the same we could see that the party in person/complainant who is the purchaser had not placed an order directly to the seller but he has placed order only with the opposite party’s website Amazon. Thus the opposite party had taken the entire responsibility of booking the product and also delivering the same to the purchaser.  In such situation they cannot contend that the contact is only between the purchaser and the seller through Amazon as the purchaser is not aware of the terms and condition i.e. relationship between the seller and the opposite party.  Under these circumstances the opposite party cannot wash out their liability if the product ordered with them has not reached the purchaser appropriately. The replacement order as per the advice of the opposite party was also made only with them by the complainant which was filed Ex.A2 dated 13.11.2018 vide order No.408-1716324-9731544.  In the replacement voucher we could see the items ordered as Maddy Perfect Combo pack of Shoes& slippers for men in various sizes.  Vide Ex.A3 dated 19.11.2018 and the email sent by the opposite party they have informed the complainant that though they tried for replacement of the order they could not make it due to non availability of stock and requested the complainant to accept for refund and to place a new order from the link provided by them.  As per Ex.A4 the bill copy dated 19.11.2018 it is amply seen that the complainant had placed new order for purchase of Maddy Perfect Combo pack of Shoes& slippers for men in various sizes vide order No.408-9369509-7458711 and had also paid Rs.435/-.  The complaint registered with the National Consumer Helpline was submitted as Ex.A5 wherein the complainant was asked for seven to 10 working days, to send reminder mail and also to send written complaint to the company portal address.  As the 2nd order was also not properly dispatched to the complainant he sought for refund of the money for which only a sum of Rs.274/- was paid out of the first order by the opposite party but had failed to refund the balance of Rs.161/- which is evident as per the Statement of Accounts and pleadings submitted by the complainant.  Though the opposite party appeared and filed version and proof affidavit, they did not produce any documents to show that they were only intermediary and they were not responsible for the dispatch of the goods nor refund.  Hence we could safely conclude that the opposite party had committed deficiency in service in not facilitating the refund as assured and also in not dispatching the goods as per the order placed before them. We find decision rendered by National Consumer Disputes Redressal Commission in Emerging India Real Assets Pvt Ltd. V. Kamer Chand, order dt 30.03.2016 wherein it has been held clearly that marketing agents are liable for the deficiencies committed by the seller.   

 Thus we answer this point accordingly in favour of the complainant and as against the opposite party.

Point No.3:-

With regard to the relief to be granted to the complainant we direct the opposite party to refund the excess amount of Rs.161/- to the complainant with 6% interest from the date of complaint and also to deliver the product as placed by the complainant.  For the mental agony, inconvenience and hardship caused to the complainant we direct the opposite party to pay a sum of Rs.50,000/- as compensation and we also award Rs.5,000/- towards cost of the proceedings to the complainant.  

In the result, the complaint is partly allowed directing the opposite party

a) to refund excess amount of Rs.161/- (Rupees one hundred and sixty one only) with 6% interest from the date of complaint till realization; 

b) to deliver the correct order placed; 

c) to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony caused to the complainant;

d) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 29th day of September 2022.

         Sd/-                                                    Sd/-                                            Sd/-

    MEMBER-II                                     MEMBER-I                                  PRESIDENT

 

  List of document filed by the complainant:-

 

 

Ex.A1 05.11.2018 Bill copy. Xerox

Ex.A2 12.11.2018 Replacement details. Xerox

Ex.A3 19.11.2018 Mail received from Amazon.in regarding new order link. Xerox

Ex.A4 19.11.2018 Bill copy. Xerox

Ex.A5 28.11.2018 National Consumer Helpline complaint copy. Xerox

Ex.A6 ............. Amazon pay balance statement. Xerox

 

List of documents filed by the opposite party:- 

 

 

-Nil-

 

 

  Sd/-                                                            Sd/-                                                  Sd/-

MEMBER-II                                             MEMBER-I                                     PRESIDENT