IN THE CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

Dated this the 19^th day of September 2022

Filed on: 01.03.2018

PRESENT:

Shri.D.B.Binu President

Shri.V.Ramachandran Member

Smt.Sreevidhia T.N. Member

C.C.No.95/2018

COMPLAINANT ::

Paul N Varghese, S/o.N M Varkey, Njeliyamparambil House, West Vengola, Shalem, Perumbavoor, Pin-683 556

(Party-in-person)

Vs.

OPPOSITE PARTIES ::

1. Amazon India, Brigade Gateway, 8^th floor, 26/1, Dr.Rajkumar Road, Malleshwaram (w), Bangalore-560 055

(O.P 1 rep. by Adv.P.M.Unni Namboodiri, Jitender Saini, Ground Floor, 26 A , Jangpura Road, New Delhi-110 014)

2. Blue Dart Express Ltd., Delhi 4^th Floor Elegance Tower, Non Hi erarchial Commercial Centre, Plot # 8, Jasola District, Centre, Delhi, Pin-110 025

(Op 2 rep. by Adv.R.B.Rajesh)

3. Flipkart Internet P Ltd, Vaishnavi Summit, Ground Floor, 7^th Main 80 feet Road, 3^rd Block Koramangala Industrial Layout, Bangaore, Karnataka.

(Op 3 rep. by Adv. Jithin Paul Varghese

O R D E R

Sreevidhia T.N., Member

1) A brief statement of facts of this complaint is as stated below:

The complainant had purchased an action camera Go Pro Hero 5 from the 3^rd opposite party Flipkart. Since the product did not fulfill the expectations of the complainant the complainant decided to refund the product. The opposite party informed the complainant that refund of the product is not possible and the opposite party agreed to replace the product after returning the same to the opposite party. Accordingly, the complainant had returned the product. The complainant submits that replaced product was a faulty one since the box was not seen sealed. Hence the complainant again asked for a refund. The opposite party refused to give the refund. The next day the complainant received a call from Blue Dart asking to drop a product but they did not mention the product. The complainant dropped his camera at nearby office of Blue Dart with the Flipkart cover.

The complainant had ordered a phone cover from Amazon (Novostyle seller Delhi) on 08.10.2017 via order id 405-4140 163-1733938 which costs Rs.388/-. Later the complainant asked Amazone to cancel the order of phone cover. They accepted the cancel request and they did not process the request as promised by them. Even after cancelling the order of phone cover, they sent the Samsung S7Edge Curve colour tempered glass screen protector. Then the complainant enquired Amazone why they have sent the product even after cancelling the same. They initiated a pick up (Amazone seller Novostyle). The complainant had dropped the camera instead of Samsung S7 screen Protection and got delivered to the Novostyle Delhi (Amazone Seller) and some one called Pooja collected the return on 16.10.2017 at 13.51 pm. The complainant enquired the matter over phone and when they came to know that the complainant is asking about the misplaced return of the camera they disconnected the phone call. Then the complainant enquired about the product several times and then sent messages also. There was no response from their side. After 3 months of calls and emails, the complainant tried to contact the executive Superior in Blue Dart and he confirmed that he had a connection with Novostyle via Amazone and confirmed that the complainant’s camera is with them and they will sent the product back next day. The complainant states that the Blue Dart guy went to the Amazone seller Novostyle office and Pooja told him that she have the product with her but she will not return the product. The complainant states that he have not used the product from Novostyle (the screen protection for SF Edge) and had contacted Amazone, Flipkart, Blue Dart and Novostyle team and nobody helped him. The complainant also states that it has been 4 months since he is trying to receive the product but Pooja is not ready to return the product. Flipkart has promised that they can help the complainant by arranging refund for the product to the complainant if the complainant can return the product back and sent to them. The complainant states that it is only because of Pooja from Amazone seller Novostyle (and Amazon is not able to return the complainant ‘s product back) Hence the complaint.

2) Notice

Notice were sent to the opposite parties from this Forum on 08.03.2018.

Opposite parties 1, 2 and 3 appeared and filed their separate versions.

3) Version of the 1^st opposite party

It is submitted that the complaint filed by the complainant is frivolous with capricious allegations and the same is filed with the sole intent to cause harassment and disruption in the genuine and legitimate business activities of the opposite party. The opposite party/ASSPL neither sells nor offers to sell any products and it is merely an online marketplace, where independent third-party sellers can list their products for sale by the intended buyers. The sellers themselves (and not ASSPL) are responsible for their respective listings and products on the website. ASSPL is neither responsible for the products that are listed on the website by various third-party sellers, nor does ASSPL intervene or influence any customers in any manner.

It is submitted that the information Technology Act, 2000 provides intermediaries with an exemption from liability for any third-party information, data, or communication link made available or hosted by them. The law laid down further makes it mandatory for an intermediary, in order to enjoy such exemption, to comply with the obligations imposed upon it by the Act and The Information Technology (Intermediaries Guidelines) Rules, 2011 framed thereunder. The said Act and the aforementioned Guidelines oblige the intermediary to, upon receiving actual knowledge of a violation, remove or disable access to such information, on its computer resource, which is being used to commit an unlawful Act (such acts have been defined in the aforesaid Guidelines).

The Hon’ble Supreme Court of India, in Shreya Singhal v.Union of India, AIR 2015 SC 1523, held that an intermediary would be liable only if it fails to take down online content despite receipt of “actual knowledge” of infringement of violation through a court order intimating the same. The Supreme Court specifically recognized that in light of the volumes of data that an intermediary deal with, it would not be in a position to verify the genuineness of products being sold on its online marketplace and in any event, an intermediary ought not to be adjudicating disputes between two private parties.

It is reiterated that the opposite party only provides the services of an online market place where buyers and sellers may interact and complete purchases. Accordingly, the products available for sale in the opposite party’s market place are supplied by the seller and purchased by the buyer. At no stage in the transaction does the opposite party have any affiliation or link with the product and does not hold out to the purchasing public that the products are that of the answering opposite parties manufacturer or origin. Thus, the complainant’s allegations are completely misplaced and unfounded and do not constitute a valid cause of action.

It is submitted that, the subject matter of dispute is restricted to the delivery of wrong product pertaining to one phone cover (“the product”) sold by an independent third party seller ie, Novo Style (“Seller”) on the website maintained by opposite party 1. The instant complaint is bad-in-law, which cannot be sustained qua the answering respondent, which is only a facilitator, where buyers and sellers meet independent of any intervention by the answering respondent. Further , the grievances of the complainant are limited to alleged wrong product pertaining to the product sold to the complainant by the seller and not by the answering respondent. The complaint is bad for non-joinder of parties are the complainant has not impleaded the seller in present complaint, who is liable for the alleged incident. It is also hereby stated that the answering respondent is neither a manufacturer nor seller of the product in question. The answering respondent has been unnecessarily and wrongly arrayed as a party to the presents without any cause of action.

4) Version of the 2^nd opposite party

The above complaint is not maintainable either in law or on facts. It is submitted that all the averments stated in the complaint are fully correct hence denied, except those which are specifically admitted here under. The 2^nd opposite party company named Blue Dart Express Company is one of the leading integrated Air Express Courier companies having the best infrastructure, network, sound technology and security infrastructure and carry millions of shipment. It is submitted that the allegation in para 1 to 4 in the complaint is not known to the 2^nd opposite party and the company is total unaware about the said allegations. In fact, what happened is that the 2^nd opposite party company have received a message from the Amazone seller in out module that the company has to collect a product (pick-up) from one of their customer – Novo Style, Delhi. Accordingly, Amazone sent a track module to our site. But, that e-mail did not contain the details of the product and it contained only the name and phone number of their customer. Accordingly, even after receiving the said message, our executive contacted the complainant over phone and told him that we have received a pick-up message from Amazone. The message from Amazon was received by the opposite party on 10.10.2017.

The residence of the complainant is at a remote place at Perumbavoor and it is out of our service area and the company is not providing any service in such area. That was also communicated to him. Hence, the complainant informed our company that he was ready to bring that item at our Branch Office at Perumbavoor. Resultantly, the complainant brought a concealed consignment at our Branch Office Perumbavoor on 13.10.2017 and we have delivered the same to Amazon on 16.10.2017.

It is submitted that there after we have received a shipment/consignment from Amazon to be delivered to the same consignee and we have contacted him and told him that a consignment is reached at our Perumbavoor office. Accordingly, the consignee reached our office and he himself put his signature on the delivery sheet and duly received the same. Therefore, it is extremely clear that the complainant knew everything about the facts of his both consignment, yet he concealed this material facts from this Hon’ble Commission.

Moreover, the 2^nd opposite party are not responsible for the misplacement of complainant's camera as alleged in the complaint. It is submitted that thereafter the 2^nd opposite party have received an email complaint from the complainant with respect to the aforesaid misplacement of his camera only on 14.11.2017 ie., after he dropped the product for Amazon knowing that it was not intended to be delivered and is claiming innocence now. But in this case we have picked-up the consignment from the complainant solely based on the message received from the Amazon and hence there was no responsible requirement of checking that consignment. Even after receiving that pick-up from the complainant, we have delivered the same to Amazon as per the terms of the contract. Therefore, we are not responsible for the misplacement of the consignment. As per the pick-up message received from Amazon, we are liable only to collect that item from the party and sent back to Amazon. This company is having the responsibility only to that extent only.

It is submitted that it is mistake and negligence committed by the complainant and there was no error or mistake committed by the company. Hence there was no wilful deficiency of service, cheating and malafide intention and misguide or latches from the part of the opposite party. Hence the complaint is liable to be dismissed.

The complainant has admitted in his complaint that he has misplaced the the product and wrongly delivered it to Bluedart opposite party No.2, who furhter delivered it to some Ms.Pooja from Nova Style who is a seller of the opposite party No.1. Now, Pooja is not returning the product to him. The opposite aprty 3 had informed the complainant several times that seller is ready to refund the price of the product in case he return the product in original condition and he clearly failed to return the product in original condition and he clearly failed to return the product. Therefore, the complainant does not have any grievance/cause of action against the opposite party No.3. The grievance of the complainant is only against the unlawful possession of camera by Ms.Pooja from Nova Style and seller of the opposite party No.1. Moreover, it is the opposite party No.2 who wrongly delivered it to Pooja from Nova Styles. Therefore, the opposite party No.1, 2 and Nova Style are necessary party to the complaint but the complainant has failed to implead Pooja from Nova Style as necessary party in present complaint and wrongly made the opposite party No.3 as a party to the complaint. Therefore, the complaint is bad for mis-joinder and non-joinder of necessary party.