DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No. 449 of 1.11.2016

                                      Decided on:   19.7.2019

Vishwajit Tapia S/o Sh.Lalit Mohan Tapia r/o Tapia Street, Bhikhi More, Nabha.

                                                                   …………...Complainant

                                      Versus

1.       Amazon Seller Services Pvt. Ltd. (ASSPL) Registered office at Brigade Gateway, 8^th Floor, 26/1, Dr.Raj Kumar road, Malleshwaram (W), Banglore 560055, INDIA through its Director.

2.       Motorola Solutions India Private Limited, Motorolla Excellence Centre, 415/2, Mehrauli, Gurgaon Road, Sector 14, Gurgaon 122001 (Haryana) India through its Director.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M.P.Singh Pahwa, President

                                      Smt. Inderjeet Kaur, Member

                                      Sh.B.S.Dhaliwal, Member      

ARGUED BY

                                      Sh.Y.R.Mangla,Advocate, Counsel for complainant.

                                      Sh.Jaspreet Singh,Advocate, Counsel for OP No.1.

                                      Opposite party No.2 Ex-parte.

 ORDER

                                     M.P.SINGH PAHWA,PRESIDENT

1. This is the complaint filed by Vishwajit Tapia   (hereinafter referred to as the complainant) against  Amazon Seller Services  Pvt. Ltd. and another (hereinafter referred to as the OP/s).
2. Briefly the case of the complainant is that he has purchased a mobile phone MOTO G 3^rd generation through agency of OPs. The mobile was received on 7.9.2016 which was dispatched by agency of OP on 3.9.2016 against total price of Rs.11750/-.The price of the phone was already paid before receiving the mobile.
3. When the mobile was opened, complainant was surprised to see the packing and seal as both seal and mobile set has given an old look. Still the complainant believing it to be new one connected it to the charger sent by OP for charging. But the mobile did not charge even after plugging it to the charger for more than five hours. Complainant continued this process for five or six days with the hope that the same will be charged but all in vain. Finding no solution he made call to OP. The complainant was told that he has closed his return window. The complainant could not obtain the services from Motorolla i.e. the maker of the mobile.It was told that the guarantee period has already been expired as earlier this phone was sold by the company from the site of Flipkart one year back.
4. On the back ground of these facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the OPs.Hence this complaint for direction to the OPs to replace the defective mobile with new one alongwith costs of Rs.25000/- with interest @12 per annum .
5. Upon notice none appeared on behalf of OP No.2. Hence OP No.2 was proceeded against exparte. OP No.1 appeared through counsel and contested the complaint by filing written reply.
6. In reply the OP No.1 raised preliminary objections that M/s Amazon Seller Services Private Limited(ASSPL)  is the owner of the website. On the application its name was corrected in the head note of the complaint. OP neither sells nor offers to sell any product. It provide online marketplace where independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective listings and products of the website. It is neither responsible for the products that are listed on the website by various third party sellers nor intervene or influence in the sale transaction between the customer and seller. It is only a facilitator and cannot be a party to control in any manner any sale transaction on the website. The contract of sale of products on the website is strictly a bipartite contract between the customer and the seller.
7. Thereafter the OP took preliminary objections that the complainant does not fall within the definition of consumer under the Consumer Protection Act. Complainant has not bought any goods from the OP and has not paid any amount directly against any such goods or services. The goods have been bought by the complainant from an independent third party seller selling its products on the website operated by OP No.1. OP No.1 has merely provided online marketplace. It is neither a necessary nor a proper party in the complaint. Complaint is liable to be dismissed due to mis-joinder of parties. The complainant wrongly approached this Forum qua OP No.1 on a misunderstanding that “Conditions of Use” as applicable at the time of registration  by the complainant on the Website as a buyer have been accepted by him , which state that OP No.1 is not and cannot be a party  or guarantee the condition/delivery of the items unless specifically requested for .That there is no occasion for the complainant to approach this Forum seeking redressal of his grievance against OP No.1.
8. The OP No.1 has also extracted some conditions of the contract, the repetition of which is not considered to be relevant at this stage. The OP No.1, in parawise reply, controverted all the averments of the complainant and prayed for the dismissal of the complaint.
9. In support of his case, the complainant tendered into evidence his affidavit, Ex.CA, copy of details of order, Ex.C1, copy of wrapper of  cardboard,Ex.C2, copy of specifications, Ex.C3, copy of the picture of mobile,Ex.C4, copy of statement, Ex.C5, copy of legal notice, Ex.C6, postal receipts,Ex.C7.
10. OP tendered into evidence affidavit of Rahul Sundram,Ex.OPA, copy of authority letter, Ex.OP1, copy of resolution, Ex.OP2, copy of terms and conditions, Ex.OP3, copy of reply to legal notice, Ex.OP4, copy of postal receipt,Ex.OP5 and closed the evidence.
11. The ld. counsel for the complainant has reiterated his stand as taken in the pleadings and detailed above.
12. It is further submitted by the ld. counsel for the complainant that admittedly the mobile was purchased from the website of OP No.1.Final detail order Ex.C1 proves that the payment was received by OP No.1. Therefore, OP No.1 was under obligation to ensure dispatch of product in good condition and new one.
13. The complainant has pleaded that the product received by him was defective  and old one   .The product was supplied by OP No.2 and OP No.2 has not come forward to rebut this averment. Therefore, it is to be accepted that the product supplied was defective. As such, complainant is entitled to the replacement of the product or refund of its price with compensation.
14. On the other hand, the ld. counsel for OP No.1 has pleaded that the product was purchased from OP No.2. OP No.1 was only a facilitator.Copy of the terms and conditions, Ex.OP3 is on the file , which proves that the OP provides only E  platform  for communication. Clause 3 makes it clear that it is only a facilitator and is not and cannot be a party to or control in any manner any transactions .The contract of sale of products on the website shall be a strictly bipartite contract between the purchaser and the seller. The complainant has admittedly agreed to these terms and conditions. As such the complaint against OP No.1 is not maintainable.
15. We have given careful consideration to the rival submissions.
16. The admitted facts are that the complainant placed an order  for the purchase of one mobile to OP No.1. Copy of the order Ex.C1 proves the final order with OP No.1.The payment was made to OP No.1. As such, the OP No.1 was under obligation to ensure the supply of product in good condition and new one.
17. The complainant has pleaded that the product received by him was old one and not functioned properly from the day one. As per OP No.1 the product was supplied by OP No.2 but OP No.2 has not come forward to rebut this  version of the complainant. OP No.1 has also not produced any evidence to prove that OP No.2 has supplied the product in good and workable condition. Therefore, this version of the complainant is un rebutted. As the price was paid to OP No.1, therefore, OP No.1 is liable to refund its price .
18. For the reasons recorded above, the complaint is partly accepted with Rs.3000/-as costs of the litigation. OP No.1 is further directed to refund Rs.11750/- i.e. price of the product to the complainant.
19. Compliance of the order be made by   OP1 within a period of 45 days from the date of the receipt of the certified copy of this order.
20. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

ANNOUNCED

DATED: 19.7.2019

 B.S.Dhaliwal                         Inderjeet Kaur              M. P. Singh Pahwa

       Member                                 Member                                      President