Date of Filing: 02.03.2022. Date of Disposal: 28.11.2022.
Complainant : Nandini Dutta, W/O Debashis Dutta, Railpar, K.S. Road, Asansol, P.O. Asansol, P.S. Asansol (North), Dist. Paschim Bardhaman, Pin-713302.
-VERSUS -
Opposite Party :1. The Director, Amazon Seller Services Limited, having its office at Brigade Gateway, 8th floor, 26/1, Dr. Rajkumar Road, Malleshwaram (W), Bangalore, Pin 560055.
2. Kaushik Jaysukhabhai Dudhat, Plot No. 67, Flat No. 304, 3rd Floor, Sahyog Apartment, Bhagu Nagar Co. OP H Society, L H Road, Surat, Gujrat, Pin No. 395006.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
Appeared for the Complainant : Mr. Debdas Rudra Ld. Advocate.
Appeared for the Opposite Party : None.
FINAL ORDER (Ex Parte)
Today the complainant files hazira.
On 02.03.2022 the complainant Nandini Dutta has filed an application u/S 35 of the Consumer Protection Act, 2019 against the OPs.
The case of the complainant, in brief, is that the complainant is the Proprietor of Malaya Medicine Hall situated at Railpar, K.S. Road, Asansol, P.S. Asansol (North), Dist. Paschim Bardhaman and she has been running the medicine hall for the purpose of earning her source of livelihood. Complainant placed an online order vide order No. 403-0448604-3767537 dt. 19.05.2021 for the product of Generic Adult Non-Rebreathing Face Musk High Oxygen Concentration with High Quality reservoir bag, Brand: OTICA having quantity of
297 pcs. That the same date, the complainant received the confirmation of billing in the same digital marketing platform named Amazon.in. The opposite parties issued tax invoice of Rs. 59,697/- only in favour of the complainant and the complainant paid Rs. 59,697/- only to the opposite parties through online, having Invoice No. IN-535, Invoice details – GJ-1563322875-2122 and Invoice date – 19.05.2021.
On 26.05.2021 the opposite parties sent the products to the complainant through their delivery executive and the complainant received the same. After receiving the products when the complainant was verifying the materials, she noticed some major mismatch in the product description, because the products which were booked were not delivered to the complainant, rather the opposite parties delivered such products which were low quality, unusable and cheap masks and opposite parties only supplied 30 pcs of normal oxygen masks in place of 297 pcs. Immediately she made contact to the customer care department of the opposite parties through telephone and lodged complaint and requested them to deliver those products as ordered by her as early as possible. The executive delivery man visited to the office of the complainant and inspected the products and admitted their faults and he assured to replace the products as early as possible but no positive response came from the part of the opposite parties. Thereafter the complainant had placed her official mail communication to the opposite parties. After receiving the mail the opposite parties verified the same and thereafter one Mr. Avimukt Sharma, Amazon Business Mediator, contacted with the complainant through his Mobile No. 9871903792 and admitted their mistake and assured her that they would supply the actual product as early as possible, but no step was taken subsequently. As such they committed deficiency in service and unfair trade practice. The complainant again sent mails to the opposite parties on 18.07.2021 and 12.08.2021 for supply of the actual products. Being aggrieved by and dissatisfied with the service of the opposite parties, the complainant requested to refund the money of Rs. 59,697/- but there was no reply. Thereafter OP No.2 sent a mail on 27.09.2021 to the complainant stating that she was very sorry that it was taking longer than expected and prayed for additional time but thereafter she also did not take any step.
Upon this back ground, the complainant prayed for passing order directing the OPs to refund Rs. 59,697/- along with interest @ 18% p.a. and Rs. 1,00,000/- compensation and litigation cost of Rs. 25,000/-.
Findings
In spite of having receipt of the notice in this case, the OP Nos. 1 & 2 did not appear to contest the case. Accordingly, the case is heard ex parte.
In order to proof the case, the complainant has filed evidence-on-affidavit and Xerox copies of documents.
On perusal of the evidence-on-affidavit it is found that the facts described in the complaint has been corroborated by the complainant in her evidence-on-affidavit. From the Xerox copy of Tax Invoice Bill of supply/Cash Memo dt. 19.05.2021 in the name of Malaya Medical Hall, Nandini Dutta of Amazon.in, it appears that she purchased the products value at Rs. 59,697/- and the products were sold by Kaushik Jaysukhbhai Dudhat, Plot No. 67, Flat No. 304, 3rd Floor, Sahyog Appartment, Bhagu Nagar Co, Op H Society, L H Road, Surat, Gujarat, 395006. On 08.02.2022 the complainant made Email communication to the CEO Amazon.in and on the same date the Executive Customer Relations send message. The complainant also filed Trade License of her business in the name of M/s. Malaya Medical Hall and Proprietor Smt. Nandini Datta. From the documents and evidence it is clear that the complainant placed order for products i.e. Face Mask High Oxygen Concentration with Reservoir Bag high quality 297 pcs and she made complaint against the low quality unusable, cheap masks rather he supplied 30 pcs of said low quality masks though the value of 297 pcs masks as ordered was taken by the OPs. The document of trade license disclosed that the complainant has been running the business of medicines as per the Drugs and Cosmetics Rules, 1945.
According to Section 2(7) of the Consumer Protection Act 2019 we have to consider whether this complainant is a consumer or not. According to Section 2(7) of Consumer Protection Act 2019, “Consumer” means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose. And the explanation of this provision disclosed that the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earnings his livelihood, by means of self-employment.
In the instant case the complainant has been running the Medicine Hall which is a business and purchased this product in huge numbers for resale or for any commercial purpose and according to explanation, the complainant does not use the goods bought by herself and no such other independent evidence is forthcoming that those huge products are used by her exclusively for the purpose of earning her livelihood by means of self-employment, mere saying that she has been running the Medicine Hall for the purpose of earning her source of livelihood. No other evidence is forthcoming on behalf of the complainant that she has been running the Medicine Hall by herself i.e. by means of self-employment. Furthermore, not only those huge face masks were purchased through online but also as a Medicine Hall the various types of medicines are being sold there. Accordingly, the business was running for commercial purpose and the complaint lodged by the complainant cannot attract the provisions of the Consumer Protection Act, 2019.
Hence, it is
ORDERED
That this case be and the same is dismissed ex parte against the OP but without any cost.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member President
D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
