Karnataka

Gadag

CC/93/2019

Harish .G. Kabadi - Complainant(s)

Versus

The Person-In-Charge, Crystal Shop, Amazon Sellers Service Pvt Ltd and Another - Opp.Party(s)

P.S.Dharmayath

27 Sep 2019

ORDER

-::O R D E R::-

 

BY: SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT.

 

1.      The complainant has filed this complain claiming direction to the OPs to pay the amount deposited by him with OP No.1 a sum of Rs.1,16,006/- together with interest at the rate of 18%, Rs.50,000/- towards damages, Rs.50,000/- towards mental agony, harassment hardship and inconvenience, for cost of the proceedings and such other reliefs.

                   -::Brief facts of the case are as under::-

2.      The case of the complainant is that, he placed an order for mobile hand set Honor Play i.e., Mid Night black 6 GB + 64 GB for an amount of Rs.11,999/- online under order No.404-9832714-0519553 and the delivery date was fixed in between 30.01.2019 to 04.02.2019.  It is further submitted that, the complainant paid the said amount of Rs.11,999/- on the same day, but the OPs cancelled the said place of order without informing him clearly.  The complainant repeatedly asked the OPs about the delivery of the same.  The OPs told the complainant that, the concerned team was looking into the matter, but it was of no use.  It is further submitted that, on 28.01.2019, the complainant came to know that the order placed by him was cancelled by the OPs due to variation in the price of the mobile handset without informing the fixed price of the same.  The complainant insisted the OPs to deliver the product, but the OPs became silent and OPs have also not refunded the amount of Rs.11,999/- to the complainant till today.  Therefore, the complainant got issued legal notice to the OPs on 16.02.2019 for supply of the same mobile handset or to refund Rs.11,999/- and also to pay special damages as the OPs have not complied with the order placed by complainant, for that the OP No.2 has falsely replied, which shows the negligence, deficiency in service and unfair trade practice against the complainant.  The OPs have not disclosed the reasons for the cancellation of the order, which shows that the OPs have not given good services to their customer.  Due to the negligence act of the OPs, the complainant has suffered irreparable loss and mental agony hence, the OPs are liable to refund the amount and also to pay special damages for inconvenience, mental agony, hardship.  The cause of action for this complaint arose on when the OPs refused to comply with the legal notice dated 16.02.2019 sent by the complainant and also when the OPs falsely replied to the said notice on 25.02.2019.  Hence, the complainant has restrained to file this complaint against the OPs praying to deliver the mobile handset or to refund Rs.11,999/-, Rs.50,000/- towards compensation for special damages, Rs.50,000/- towards mental agony, harassment, hardship and inconvenience with cost of the proceedings and such other reliefs.

3.      Registered the complaint and notice was ordered as such OP No.1 present before the Forum and filed written version, OP No.2 remained absent. The contents of Written Version filed by the OP No.1 are as follows:

Written Version of the OP No.1

1. The OP No.1 contended that the allegations made in the complaint are all denied as false.   
2. It is submitted that, the complainant has not paid any amount to OP No.1 with regard to the order placed by him on the website or this OP has not received any consideration towards the same.  The complainant has placed the order upon third party seller who listed its products on the website of OP No.1, the third party seller could not fulfill the order, therefore the same was cancelled by the seller and consequently the amount was refunded to the complainant and this OP has no role in the transaction held on between the seller and the complainant.  This OP has a limited role to provide online facility on online market where the seller and buyer meets each other. 
3. It is submitted that, the OP No.1 assisted and informed the complainant that the seller could not fulfill the order and the same was cancelled by the seller and refunded the amount towards the order placed under reference No.085786.  This OP neither sells nor offers to sell any products and merely provides an online marketplace where independent third party sellers can list their products for sale and listing and fixing of prices of the products are not in the hands of this OP and the same is solely on the hands of sellers and the sellers themselves are responsible for their respective listings and products on the website. 
4. The averments made in para 7 are denied as false.  It is further submitted that, the complainant has suppressed the fact of receiving the refund for the order in question.  The complainant was informed about the fact of cancellation of the order by the seller, by the concerned team of OP No.1 and also informed about the issuance of refund on 23^rd January 2019 and informed to place fresh order for the said product and also about listing and fixing of price of the product is not on the hands of this OP. 
5. It is submitted that, the legal notice was duly replied by this OP vide reference No.MXL/AMZ/SM/4326/1464 about cancellation of the order and issuance of refund, but the complainant with a malafide intention deliberately concealed and suppressed the fact of receiving the refund in order to implicate this OP in this false case to extract money from this OP without any fault on the part of this OP. 
6. The contents of para 9 to 11 are denied as false and this OP has not caused any deficiency in service or any unfair trade practice.  It is further denied that, due to any act or omission on the part of this OP, the complainant has suffered mental agony, hardship and nuisance.  It is submitted that, the responsibility for the product including the cancellation is on the seller only and not on this OP.  The complainant with a malafide intention has put the false claim against this OP, which has no role at all in the transaction held between the seller and the complainant. 
7. The contents of para 12 and 13 of the complaint that, there is no cause of action for this complaint and the complainant has wrongly invoked the jurisdiction of this Forum as the instant complaint is beyond the territorial jurisdiction of this Forum and therefore, the complaint filed by the complainant is not maintainable in law and hence, deserves to be dismissed.  

4.  The complainant has filed his affidavit and filed 03 documents which are as follows;

COMPLAINANT FILED DOCUMENTS AS follows

	Particulars of Documents	Date of Document
Ex.C-1	Original legal Notice
Ex.C-2 & 3	2 Postal receipts

 

5.      The Senior Corporate Counsel of OP No.1 has filed his affidavit and filed 01 document which is as follows;

OP No.1FILED DOCUMENTS AS follows

	Particulars of Documents	Date of Document
Ex-OP-1	Terms and conditions

 

6.     On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudication are as follows: Points arises for our consideration are:

1.      Whether the Complainant proves that OPs made unfair trade practice?

2.      Whether the Complainant is entitled for the relief?

3.      What order?

Our Answer to the above points are:-

1.  Affirmative
2. Partly affirmative.
3. As per the final order.

REASONS

7.      Point No-1 & 2:- Since both the points are identical and interlinked with each other and hence, we proceed both together.   

8.      Complainant filed this complaint against the OPs alleging that, the said OPs cancelled the order of mobile handset on 23.01.2019 worth of Rs.11,999/- by the OPs without informing clearly to the complainant and the amount had not been refunded till today.  

9.      OP No.1 filed the condition relating to their Company before the Forum and as per the condition of same between seller and the customer and further submits that, the complainant has received the amount on same day of cancellation of the order i.e., on 23.01.2019 only.  Complainant mislead the Hon’ble Forum stating that till date complainant had not received the amount and prayed to dismiss the complaint with heavy cost.  OP No.2 not present before the Forum and not filed any defence behalf of them and OP filed elaborated Written version stating that, he is not a necessary party to the proceedings, he is just a facilitator and he is not intervened or influence any customer in any manner.  It is further submits that, OP No.2 neither sells nor offered to sell any product and merely provides an online market place where independent third party seller can list their product for sale and even OP No.2 is not fixing the price and seller themselves responsible for their respective listing and selling of products on the website accordingly.

10.    Further submits that, he had very much touch with the customer and response to complainant’s mail, without any grievance complainant filed this complaint before the Forum.

11.    As regards the alleged complaint and written version, while we gone through the records on file which has been produced by the complainant and OP, it is an admitted fact that, complainant placed an order through the OP No.2 to OP No.1 for purchasing of mobile and it is also admitted that, complainant placed an order and order has been cancelled on the same date and it is also admitted by the complainant during the argument that, he had received the amount on the same date. 

12.    The most important point we have to discuss here is that, whether OPs made any unfair trade practice, this issue has to be considered here.  When we heard from the complainant Advocate, it is clear that, he had received the paid amount on the same day regarding the placement of the order of mobile.  The allegation of the complainant is that, the mobile has been advertised in OP No.2’s website in a discount offer for the mobile.  But as per the document produced before the Forum, the documents, correspondence between the OP No.2 and complainant, it reveals that, OP No.2 is ready to give the same mobile but in different amount as per the seller’s rate.  But OP No.2 cannot reduce or increase the amount what is stated by the seller and complainant need the amount in the offer price only.  It is the bounded duty of the complainant that, before buying the product in online he should have to look after the terms and conditions of that facilitator and complainant should come to the Forum in a clean hand, since he had alleged that, till date he had not received back the amount which has been paid for the purchase of the mobile. While raising the question by looking the written version of the OPs that, as per the refund reference No.085786 complainant agreed that, he had received the refunded amount.  Anyhow merely producing the terms and conditions before the Forum, OP No.2 cannot wash away his hand by saying that, he is only the facilitator to the seller and buyer.  Without any profit or receiving service charges, OP No.2 cannot provide a service to the customers and OP No.1 Company is a very reputed Company and it is fashioned to the young one to buy a product through OP no.2.  Such being the fact, it is the bounded duty of OP No.2 to educate their customer about their conditions as they advertise the products in their website regarding selling of the product. There are a lot of terms and conditions in the document which has been produced before the Forum.  If the buyer read all these terms and conditions, at least it takes 2-3 hours to finish it.  Meantime, OP No.2 advertised the product and one will be eager to buy it as early as possible because of their advertisement thinking that, the customer lost their opportunity of discount.  Such being the fact, OP No.2 is also equally responsible for the unfair trade practice along with the seller.  If in this case, OP No.2 wipes out the discount advertisement of the mobile, complainant cannot heed his head at midnight.  OP No.2 is responsible for the sellers act because customer cannot see that who is the seller while purchasing on online on the OP’s website.  If the said product is not available, it should be removed immediately. 

13.    OP No.1 is a seller and manufacturer, its role is very important here that, while agreed to sell their product in the OP No.2’s website, they should have to regularly in touch to say that, whether the product is on discount or not and the product which was not on discount, they should have to touch with the so called facilitator (OP No.2) to wind up the same.  Here we have to observe that, complainant placed an order at midnight of his desire, when he did not get the mobile on discount price, naturally it is disappointment happened to the complainant, he got hurt and it is a type of mental agony and harassment also.  Hence, complainant is proved that, the OPs have made unfair trade practice and accordingly, he is entitled for partial relief.  Hence, we come to the conclusion that, OPs have made unfair trade practice since we answer Point No.1 in Affirmative and Point No.2 in Partly Affirmative.       

14.    Point No-3:-        For the reasons and discussion made above we proceed to pass the following:-

6698606.  

1. The complaint filed by the complainant is hereby partly allowed.
2. OP No.1 and 2 are jointly and severally liable for unfair trade practice and to pay the amount of Rs.10,000/- to the Consumer’s Welfare Fund. 
3. Further both are directed to pay Rs.5,000/- towards mental agony and harassment to the complainant and Rs.1,000/- towards litigation charges.
4. Further OPs are directed to pay this amount within one month, failing which OPs are liable to pay Rs.1,00,000/- to the Consumer’s Welfare Fund.       
5. Send a copy of this order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 27^th day of September-2019)

 

 

 

(Shri B.S.Keri)                                   (Smt.C.H.Samiunnisa Abrar)

    MEMBER                                                     PRESIDENT