DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.818 of 2016
Date of institution: 16.12.2016 Date of decision : 16.03.2018
Akshay Kumar son of Shri Kuldeep Singh, resident of House No.1277, Kamao Colony, Naya Gaon, Tehsil Kharar, SAS Nagar 160103.
…….Complainant
Vs
Amazon Seller Services Private Limited (“ASSPL”) Bridage Gateway, 8th Floor, 26/1, Dr. Raj Kumar Road, Malleshwaram (W), Bangalore 560055, India.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Complainant in person.
Ms. Rupinder Pal Kaur, counsel for the OP.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, an employee in Swaraj Tractors placed an order for purchase of mobile I Phone 6S (Gold, 32GB) for Rs.4,749/- from OP, but OP refused to send the mobile, despite the fact that amount of Rs.4,749/- had been paid by complainant to OP. However, readiness of return of the paid amount was expressed by OP. Complainant does not want refund of the amount. Calls on customer care centre were made to OP many times but no satisfactory reply was received. Complainant claims to have suffered lot of mental harassment due to negligent act and conduct of OP and that is why this complaint for seeking compensation for mental harassment and agony of Rs.50,000/-. Cause of action alleged to have occurred on 06.12.2016 when OP did not deliver the mobile to complainant. Copy of the message details and delivery details alleged to be enclosed with the complaint. Litigation expenses of Rs.10,000/- more claimed.
2. In reply submitted by OP, it is claimed that OP neither sells and nor offers for sale any product, but it merely provides an online market place, where independent third party sellers can list their products for sale. The sellers themselves are responsible for their respective listings. Conditions relating to customer use of the website of OP specifically provide that OP is only a facilitator and it has no control in any respect regarding sale transactions held through bipartite contract between customer and seller. Complainant is alleged to be not a consumer of OP because no goods were purchased by complainant from OP and nor any price or amount of sale has been paid directly to OP. Seller in this case is Dashmesh and not OP. This Forum alleged to have no territorial jurisdiction because as per Clause-22 of Conditions of Use of website of the OP, courts at Delhi alone has jurisdiction. Present complaint alleged to be bad due to non joinder of necessary parties because seller of the product has not been impleaded, despite the fact that cancellation of the order was done by the seller. Whatever information provided on the website, the same is provided by the seller of the product only. Even as per e-mail dated 09.09.2016 annexed with the complaint, the seller informed the complainant as if there was an error on the part of the seller while listing the product at INR of Rs.4,749/-. It was the seller who claimed that actual price of the merchandise purchase was INR 47,000/-. The amount paid by complainant has been returned by OP. OP maintains a nodal account managed by designated bank as per RBI guidelines. Nodal account facilitates collection and deposit of funds from buyers for crediting the same in sellers account or for refunding back the amount to the buyer. That action is done as per RBI guidelines. Prayer, therefore, made for dismissal of the complaint.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-4 and thereafter closed evidence. On the other hand counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Shri Rahul Sundaram authorised signatory alongwith documents Ex.OP-1 to Ex.OP-5 and thereafter closed evidence.
4. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
5. Complainant placed an order for purchase of I Phone 6S (Gold, 32GB) by remitting an amount of Rs.4,749/-. Seller was Dashmesh as per copy of e-mail Ex.C-2. Price of the product was displayed as Rs.4,749/- on the website of OP, is a fact borne from copy of snap shot Ex.C-1= Ex.C-4. However, when said seller Dashmesh contacted by OP, then it transpired as if price of the product is Rs.74,000/- and not Rs.4,749/- and e-mail dated 09.12.2016 in this respect was received by OP from seller with request to return the product and copy of that email is produced on record by complainant. It is on account of this that OP through e-mail Ex.C-3 informed complainant that the order of Apple I Phone 6S is undeliverable and is returned to seller. It is vehemently contended by complainant that he after seeing the advertisement on website, placed order through OP and as such fault, if any, lies with OP. OP displayed on the website the price of the product as mentioned by the seller and not at its own and as such if the seller has mentioned wrong price erroneously, then OP cannot be blamed for the same.
6. Copy of the guidelines issued by Govt. of India, Ministry of Commerce and Industry, Department of Industrial Policy & Promotion is produced on record as Ex.OP-4 by OP. Those guidelines contained in Ex.OP-4 pertain to sale of products managed in India through e-commerce retail. Definition 2.1 of those guidelines Ex.OP-4 provides that e-commerce means buying and selling of goods and services including digital products over digital and electronic network. So in view of this definition, it is obvious that OP just provided e-commerce services through electronic network to complainant. Clause 2.3 (ix) of Ex.OP-4 specifically provides that e-commerce entities providing market place will not directly or indirectly influence the sale price of goods or services and shall maintain level playing field. So in view of this, it is obvious that OP being an e-commerce entity provided market place, but without influencing the sale price of the goods or services. So certainly submissions advanced by counsel for OP has force that as OP has no direct or indirect control in fixing the sale price of the goods including the contemplated product in question purchased by complainant. If that be the position, then certainly OP cannot be compelled to sell the product in question at a price mentioned in Ex.C-1 = Ex.C-4. As the order was placed by complainant through e-commerce entity of OP and as such OP cannot be held liable, if the seller represented to sell the product mentioned in the website advertisement of OP.
7. Conditions of use of website of OP are also there and a copy of the same is produced on record as Ex.OP-3. After going through condition No.3 relating to use of OP website as mentioned in Ex.OP-3, it is made out that website in question provides an online platform enabling the purchase of products listed on the website at the price indicated therein at any time from any location. In this condition No.3 itself it is mentioned that OP is only a facilitator having no control in any manner on the transactions conducted through website. Rather as per this condition No.3 of Ex.OP-3, the contract of sale of products on the website shall be strictly a bipartite contract between the purchaser and the seller. In view of this express condition No.3, certainly, OP cannot be held liable for the sale or non sale of the listed product by the seller because role of OP is just of a facilitator. As the contract of sale/purchase is a bipartite contract between the purchaser and the seller and as such certainly OP being facilitator cannot be held liable for the act of seller in not supplying the product on the listed price.
8. As per condition No.3 contained in Ex.OP-3, user of website acknowledges and undertakes that assessing of services on the website of OP No.3 is at the risk of the user. In condition No.13 of Ex.OP-3 itself it is mentioned that OP neither liable and nor responsible for any action or inaction of sellers and nor for any breach of conditions, representations or warranties by sellers or manufacturers of the products. Specific disclaimer for owning responsibility and liability is made in condition No.13 of Ex.OP-3 itself. Further through this condition No.13 of Ex.OP-3 it has been specifically mentioned that OP not to mediate or resolve any dispute or disagreement between the user of the website and the seller or manufacturer of the products. If such disclaimer notice through condition No.13 of Ex.OP-3 already issued by OP, then certainly OP cannot be held responsible for the action or inaction or breach of condition or representation by seller. Present complaint is filed for seeking action against the seller in respect of its in action or act of breach of conditions qua representation of selling of product at a particular price only and as such in view of disclaimer notice, OP cannot be held liable. Seller has not been impleaded as a party in this case at all. Mobile was never received by complainant, but price has been offered to be refunded and is refunded and as such no deficiency in service on part of OP can be found. As OP displayed the information on the website as per the information provided by the seller only and as such if OP has displayed the erroneous price of the product in question, then misrepresentation is not made by OP at all. Being so, question of adoption of unfair trade practice by OP does not arise. As neither OP remained deficient in providing service and nor it adopted any unfair trade practice and as such complaint merits dismissal, but without any order as to costs in view of peculiar facts and circumstances of the case.
7. As a sequel of above discussion, complaint dismissed without any order as to costs. Certified copies of the order be supplied to the parties free of costs.
Since there is shortage of postal stamps in this Forum, therefore, the parties self or through their counsel are directed to receive free certified copy of the order by hand and it will be the responsibility of the learned counsel for the parties to inform them accordingly. This direction issued by following the principle laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018. File be indexed and consigned to record room.
Announced
March 16, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
