FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant has filed this case U/s 35 from the CP Act, 2019.
The complainant also filed an application U/s 34 (2) (b) CP Act, 2019 with a prayer to allow him to file this case against the OPs 1 and 2 before this commission as the OP 2 is running its business outside the jurisdiction of this commission when the other OP-1 is running its business within the jurisdiction of this commission. The prayer was allowed by this commission vide its order dated 09.10.2020.
The fact of the case in brief is that on 06.04.2020 the complainant ordered one iron to the OP Amazon Co. over telephone and he assured that he will made payment by debit card within 10 pm to 11 pm. The receiver of that phone call was speaking in hindi and telephone operator was also speaking in hindi thereafter, the complainant provide his last five digits of ATM card after that he demand the code No. sent by him in the mobile of the complainant and asked the complainant to inform him quickly the code No. accordingly the complainant informed the code No. to that person.
It is further stated by the complainant that the person sent him code Nos. and all the times the complainant informed his mobiles No. being used are 8391043959/07098779907/8388823560/6290579139/9004676782 thereafter, several transaction was made through his ATM card in Paytm Noida for Rs. 1500x3, Rs. 9,999/- , Rs, 4999x2, Rs 23.60x3.
The complainant further stated that when he raised an objection against such illegal act then the person told him that those amount will be adjusted on next purchasing from the company goods.
The complainant further alleged that the OP cheated and fraud practicing upon him and the OPs are fully connected in the said matter. The complainant has lodged several complaint to the competent authority against the OPs but in vain.
Hence, the instant petition of complaint is filed by the complainant with a prayer to give direction to OPs for refunding the amounting of Rs 24,568/- which was deducted from the A/c of the complainant by the miscriants along with compensation of Rs 1,00,000/- for harassment mental pain and agony damages etc.
The OPs have contested claim application by filing a WV denying all the material allegations leveled against him.
It is stated by the OPs that Amazon Sellers Pvt. Ltd. having its registered office at Brigade Gateway, 8th floor 26/1, Dr. Rajkumar Road, Maleswaram, (W) , Bangalore, 560055, Karnataka, India and it is settled principle of law that no individual can held liable in his personal capacity on behalf of the company. So, the OP-1 has been wrongly implicated in this case. It is further that the co. authorized one Rahul Sundram to look in to this matter and authorization letter was annexed as A and the copy of board resolution dated 22.09.2014 is annexed as annexure B.
It is further stated by the OPs that Amazon Sellers Service Pvt. Ltd. managing the E commerce market place ie www.amazon.in where independent third party sellers list their proceed for sale. Any seller is free to list any product for sell and any buyer is free to choose and order any product from any independent third party seller selling that product on the Ecommerce market place and there is no interance or interference of ASSPL/ the answering OP. In the said process of listing of product by independent third party sellers and sell transactions under taken by the independent third party seller as on date. There are over 5 lacs such independent third party seller selling products on E commerce market place . The main role of ASSPL/OPs is to make the E/commerce market place user friendly and to provide necessary tools to the sellers to list necessary details of the products and to the buyer for searching and browsing through the said product and it is mere provides and E/commerce market place for transaction of sell that takes place between and independent third party seller and a buyer.
It is further stated that all the transaction undertaken of buyer of e-commerce market place are strictly by partite agreements between the buyer and the seller listed on its market place of ASSPL /OP. So, the OP ie ASSPL is not the seller or manufacturing of products listed on its market place and is liable for performance of sale agreement executed by and between buyer and seller on the e commerce market place as the agreement for sale entered buyer and seller the ASSPL/OPs has no role to play in the same.
It is further stated by the OPs in its WV all the orders placed by the buyers are directly placed with the independent third party sellers listed on the E/commerce market place. All the on-line transaction made by the user of the e-commerce market place of ASSPL ie answering OPs are governed by the “condition of the sale” and are applicable to the person purchasing any product from independent third party seller on the market place operated by ASSPL (annexure C).
it is further stated by the contesting OP that ASSPL/contesting OP is an “intermediary” as defined under the Information Technology Act, 2000 and complies with all the obligation lead down for intermediaries in the information technology rules, 2011.
it is further case of the contesting OPs that the instant complaint pertains to a banking fraud. that the alleged fraudulent transactions amounting to total of Rs.24468/- only took place without his authorization from the debit ATM card of the complainant, issued by the complainants banker so, the alleged grievance of the complainant in the present matter can only be addressed by the complainant’s banker and not by answering OPs. The consideration amount so paid by the users for the sale mdee by independent third party seller is dejectedly received by the independent third party seller in their nodal account maintain as per RBI Guidelines dated 24.09.2011. The allegation raised by the complainant against the answering OPs is baseless and if at all the complainant is entitled to any claim, the same can only be sought from the banker of the complainant and not the answering OPs.
It is further stated by the OPs that the petition of complaint and its prayer as made by the complainant is misconceived one and the complainant is not entitled to get the relief as sought for. Hence,
The petition of complaint is liable to be dismissed.
In view of the above stated fact and circumstances, the points of consideration would be as follows:-
- Is the case maintainable?
- Has the complainant any cause of action to file the case?
- Is the complainant a consumer as per CP Act, 2019?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
Taken in to consideration the fact and circumstances of this case and the position of law it appears that the case is well maintainable in the eye of law and the complainant wanted to purchase one iron from the website of Amazon on 06.04.2020 but he could not be able place to the order even after several attempts. Thereafter, all the same self day he called the customer care No. 1800 3000 9009 at about 10.00 PM to 11.00 PM for purchasing the iron in question. Thereafter, on the complainant asked to pay the consideration money by his debit card due to covid. As per demand of telephone operator the complainant provided the last 5 digits of his debit card No. to the telephone operator then he asked the complainant to supply the code No. quickly which the complainant received in his mobile phone and cut off. Thereafter, on several times the complainant received phone call from the different mobile No. and all the times the caller asked him that their calling from “Amazon” and in every case when the complainant supplied them the code No. OTP as received in his mobile Phone.
The complainants account was debited through Paytm Noida amounting to Rs. 1500x3, Rs. 9999/- , Rs. 4999x2, Rs. 23.60/-x3 in total Rs. 24, 568/- then the complainant raised objection on their telephone and the caller told him that those amount will adjusted on next purchase from the “Amazon” . The complainant on several occasions brought it to the notice of the OPs but they did not pay any heed to his request hence, the instant petition of complaint is filed by the complainant within the period of limitation from which it is held by this commission that the complainant has/had sufficient cause of action to file the case.
Let us see whether the complainant is a consumer or not within the ambit of CP Act, 2019.
From the content of petition of complaint and also from the WV and evidence on record it is revealed that admittedly a sum of Rs. 24,568/- has been debited from the account of complainant for purchasing one iron from “Amazon” and all the callers have claimed themselves as the transaction was going on from the end of Amazon and the amount would be adjusted on the next purchase from the “Amazon” so, when the complainant paid for purchasing one iron from the website of Amazon on payment of consideration then this well within the definition of consumer “ under the CP Act, 2019 and the OPs are the service provider.
Now it has to be considered and decided whether there was any sort of deficiency in service on the part of the OPs or not.
The contesting OPs in their written argument stated that the subject matter in dispute pertains to the unauthorized of debit ATM card of the complainant as alleged. The complainant has alleged that he placed a call on phone No. 1800 3000 9009 for purchasing one iron from the OP “amazon” thereafter, on his own violation promised impersonator on the other side that, he will make a payment through his debit ATM card and as per demands of impersonator the complainant on his own share the last five digit of his debit card and thereafter share the OTP and mobile Nos. which are used by the complainant and ultimately a sum of Rs. 24,568/- was debited from his account paytm Noida and when the complainant asked the impersonator of such illegal transactions the impersonator told him that amount will adjusted on the next purchase from “Amazon”.
It is further argued by the OPs that the complainant has been defrauded by the impersonator who has represented himself as the customer executive of the OP Amazon and has taken the advantage of negligence and careless acts of the complainant. So, the OPs are no way responsible for the negligent and careless act of the complainant.
On the contrary, it is argument of the complainant that the complainant wants to purchase through Amazon and due to covid situation he failed to make contact ultimately, he placed a call on 1800 3000 9009 which is the customer care No. of the Amazon for purchasing the product and the telecaller sent him a code/OTP only after that and phone calls came to him from different Nos. asking the OTP so, as the phone calls had come to the complainants No. from different No after giving the call in the customer care No. of the Amazon then the Amazon would be held responsible for misconduct done through customer care No. it is the fact that the Amazon contains third party business but that third party concerned are approved by the Amazon that the OPs of the case or by its sister concern or concerned related with Amazon thus, Amazon cannot denied third parties’ activity and also cannot deny the customer care activity. Moreover, the payment was received by the representative of the Amazon from customer care and Payment towards third party also made by Amazon, that is why all financial liabilities are lying with Amazon. Moreover, on a close scrutiny of evidence on record as adduced by both the parties it is revealed that all transaction in question made in favour of the Amazon after calling the customer care the agent of Amazon called the complainant from different phone Nos. which the complainant informed the OPs through a notice dated 01.07.2020 and 05.07.2020 but the OPs did nothing to solve the matter so, as the misdeeds done through customer care call of Amazon and by the representative of the Amazon then the contesting OPs cannot deny their responsibility and liability to refund the amount of Rs. 24,568/- which is debited from the account of the complainant towards the valuation of the iron in question and also liable to give compensation to the complainant for his sufferings in all respect.
In view of discussion made above this commission is of view that there was sufficient deficiency in service on the part of the OPs 1, 2 and 3 because they did not pay any heed to the request or notice of the complainant sent to them. The complainant has suffered a loss of Rs. 24,568/- by the representative of the OPs 1, 2 and 3 through their customer care call.
On a close scrutiny of the fact and circumstances of the case as well as evidence on record it is found that the complainant did not make any allegation against the OPs 4 SBI and he has no claim from the OP-4.
Under such circumstances, it is held by the commission that the complainant could be able to prove that there was deficiency in service on the part of the OPs 1 , 2 and 3 and the complainant is entitled to get the relief as prayed for.
The case is properly stamped.
All the points of consideration are considered and decided in favour of the complainant.
Hence,
Ordered
That the case be and same is decreed on contest against the OP-1 and ex parte against the OPs 2, 3 and 4 with cost of Rs. 5,000/-.
The complainant do get the decree as prayed for.
The OPs 1, 2 and 3 are directed to refund the amount of Rs. 24,568/- to the complainant either jointly or severally along with interest @ 6 % on the amount from the date of filing of the case till realization within 45 days from the date of this order.
The OPs 1, 2 and 3 are further directed to give compensation of Rs. 10,000/- to the complainant along with litigation cost of Rs. 5,000/- either jointly or severally within 45 days from the date of this order id the complainant will be at liberty to execute the decree as per law.
