CC No.860.2016

Filed on 18.06.2016

Disposed on.25.11.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 25^th DAY OF NOVEMBER 2017

CONSUMER COMPLAINT NO.860/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 18.06.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay a sum of Rs.60,000/- for delivery of the product and deficiency in service, to pay a sum of Rs.1,20,000/- for mental agony and other reliefs.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that he has purchased the Apple IPhone 6s Gold 64GB from Amazon.in for consideration of Rs.30,000/- it was an offer quoted by Amazon on their webpage.  The Complainant was attracted with the offer and without any hesitation, he placed the Order on 30^th May 2016 at 7.22 a.m.  After successfully payment the Complainant received confirmation email from Amazon stating that the seller GA Sports has received the Order, and they are preparing it for shipment and also mentioned that the product would be arriving in between Saturday 4^th June-Thursday, 9^th June 2016 with Order ID:403-03888836-1665133.  After one hour 4 mins at 8:26 A.M on 30^th May 2016 the Complainant received email about cancellation notification that “because of insufficient inventory, your order number ID:403-03888836-1665133 from G.A., Sports has been cancelled”.  It was also mentioned “If you are still interested in this item, please search for it again on Amazon.in”.  Surprisingly, the Complainant checking once again at 8.36 A.M on 30^th May 2016 he was able to find the products once again with the same offer price of Rs.30,000/- .  The Complainant reached out to the Amazon Customer Service Team and asked them “if the product was not available in your inventory then why it was available for sale in your portal.  Even after receiving this cancellation email notification he was able to see the same is available for purchase with the same price of Rs.30,000/- and asked them to deliver the product.    The Complainant have received response stating “the order No.403-03888836-1665133 and found that it was cancelled because the item was listed with an incorrect price on the website for a short time; this error has since been corrected”.  If this is the issue then why the initial mail was sent stating that the order was cancelled due to insufficient inventory.  It’s an offer with 30,000/- as per the price listed in your Amazon products page for Apple IPhone 6s Gold 64GB.  He have made the payment based on the offer you have quoted and he need the product to be delivered.  This is not the first instance happened with him even the products ordered on 4^th March 2016 was cancelled on 10^th March 2016 stating incorrect pricing or seller cancelled the product.  It appears that Amazon.in just trying to play around with their customers by making changes as per their wish.  The Opposite Party is not ready to deliver the product as per the offer quoted in their website on 30^th May 2016.  He has not proved.     Hence, this complaint. 

3. In response to the notice, the Opposite Party put their appearance through their Counsel and filed their version.  In the version pleaded that the Complainant wrongly impleaded the Opposite Party as a party to the complaint. The Opposite Party neither sells nor offers to sell any products and 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 and products on the Website.  The Opposite Party is only a facilitator and cannot be a party to or 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, thus, Opposite Party does not have any privity of contract with the Complainant.  The complaint is false, frivolous, vexatious and abuse of the process of law.   The Complainant does not fall within the definition of “Consumer” under the Consumer Protection Act, 1986.  Admittedly, the Complainant has not bought any goods from the Opposite Party nor has the Complainant paid any amount consideration to Opposite Party for the purchased Product.  The goods have been bought by the Complainant from the independent third party seller selling its products on the Website operated by the Opposite Party.  Accordingly, the Complainant does not fall within the definition of “Consumer’.    The Opposite Party is not involved in the transaction between the Complainant and the Seller.  The Complainant has explicitly, by virtue of his/her use of Website, has agreed to be bound by the terms contained in the “Conditions of Use”.  The Seller in the instant case is a GA Sports i.e., third party seller and Opposite Party is not involved in the contract of sale between the Complainant and the Seller.  Hence, the complaint is liable to be rejected.  The Complainant has to discharge the burden of proving the deficiency in services or negligence on the part of the Opposite Party, however, it is an unfortunate case that relates to technical issue of price error on purchase of Apple IPhone 6s 64GB Order ID being 403-0388836-1665133, which was ordered by the Complainant on May 30, 2016 and the price paid for the same was Rs.30,024.95/-.  The Order was cancelled on the same date by the Seller due to pricing error.  The Complainant contacted the Customer Service Team of Opposite Party who informed the same and issued a refund of Rs.30,024.95/- on June 30, 2016.  The Opposite Party acts as a facilitator between the Seller and the Complainant and hence, this isolated unfortunate instance lies even beyond the purview of the Opposite Party.  The price of the Product that is being sold on the Website of the Opposite Party is listed by the respective sellers themselves and that at no time, does the Opposite Party assumes any responsibility for the actions, products, and content of any third parties listed on the Website.  This Hon’ble Forum has no Jurisdiction to entertain the present complaint.  The conditions are governed by and construed in accordance with the laws of India.  Agree, as we do, to submit to the exclusive Jurisdiction of the courts at Delhi”.  Thus, it is clearly deduced that the parties have vested exclusive Jurisdiction to the Courts at Delhi and as per terms and conditions, the Courts at Delhi shall alone have the Jurisdiction to tray this complaint.  Therefore, the instant complaint is liable to be dismissed.  The Complainant placed an order for the Apple Iphone 6s 64 GB from the Seller i.e., GA Sports bearing Order ID No.403-0388836-1665133.  However, the said Order was cancelled on the same date i.e., May 30, 2016 by the Seller due to pricing error and the same was intimated to the Complainant vide email dt.May 30, 2016 and accordingly a refund was also initiated on June 30, 2016.  The Opposite Party only acts as a facilitator and is in no manner responsible for listing and/or pricing of the products available on the Website.  The sellers are solely responsible for any pricing error on the Website, to the total exclusion of Opposite Party and the same is clearly enumerated under Condition 13 of Conditions of Use-Disclaimer.  On the receipt of the complaint of the Complainant by the Customer Service Team of the Opposite Party, the refund of Rs.30,024.95/- was initiated on July 30, 2016 by the Customer Service Team of the Opposite Party as the return policies enumerated on the Website of the Opposite Party.  The complaint is liable to be dismissed on the ground of misjoinder of parties, as the Opposite Party has nothing to do with the complaint.  Hence, prays to dismiss the complaint. 
4. The Complainant, Sri.Krishnendu Paul filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Sri.Rahul Sundaram has been filed.   Heard the arguments.

5.      The points that arise for consideration are:-

1. Whether the Complainant is a ‘Consumer’ ?
2. Whether this Forum have Jurisdiction to entertain this complaint ?
3. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
4. If so, to what relief the Complainant is entitled ?

6.     Our findings on the above points are:-

                POINT (1):-  Affirmative

POINT (2):-  Affirmative

POINT (3):-  Negative

POINT (4):-  As per the final Order

REASONS

7. POINT NO.1:- The learned Counsel for the Opposite Party argued that the Opposite Party neither sells nor offers to sell any products and 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 and products on the Website.  The Opposite Party is not involved in the transaction between the Complainant and the Seller.  The conditions relating to the customer’s use of the Website and specifically agreed by the customers have stated that ASSPL is only a facilitator and cannot be a party to or 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, thus, Opposite Party does not have any privity of contract with the Complainant.  Admittedly, the Complainant has not bought any goods from the Opposite Party nor has the Complainant paid any consideration to the Opposite Party for the purchased Product.  The goods have been bought by the Complainant from the independent third party seller selling its products on the Website operated by the Opposite Party.  Accordingly, the Complainant does not fall within the definition of “Consumer”. 

8. But it is not proper to accept the argument of the learned Counsel for the Opposite Party.  On perusal of the complaint, it is very clear that the Complainant placed an order for purchased of I.D.No.403-0388836-1665133 through on the Website of the Opposite Party and also paid the consideration amount of Rs.30,000/- to the Opposite Party.  As submitted by the learned Counsel for the Opposite Party, the Opposite Party may not sell his goods are listing directly to the customer, but the Opposite Party is acting as an agent of the seller so on behalf of seller of the Complainant received the consideration amount, thereby, it is not proper to accept the argument of the Opposite Party that the Complainant is not a ‘Consumer’ as defined under Section 2(1)(d) of the Act.  Hence, we answer point No.1 holding that the Complainant is a ‘Consumer’ as defined under Section 2(1)(d) of the Act.

9. POINST NO.2:- The learned Counsel for the Opposite Party argued that this Hon’ble Forum has no Jurisdiction to entertain this complaint as per Clause-22 of the conditions of Use of the website.  These conditions are governed by and construed in accordance with the laws of India.  The Complainant agree, as Opposite Party do to submit to the Exclusive Jurisdiction of the Courts at Delhi.    The Courts at Delhi got Jurisdiction as per the terms and conditions.  Therefore, the complaint is liable to be dismissed.  Since this Forum have no Jurisdiction to entertain the complaint. 
10. Admittedly, the Complainant booked the Order of purchasing IPhone by paying consideration amount of Rs.30,000/- in Bangalore on the Website of the Opposite Party.  The Opposite Party is carrying his business in Bangalore.  Even according to the version of the Opposite Party, the Opposite Party is a well reputed Company and has a very large customer base and amongst others,  managers and operates the Website and has its registered office at Brigade Gateway, 8^th Floor, 23/1, Dr.Rajkumar Road, Malleshwaram (W), Bangalore.   Even from this version of the Opposite Party itself, it is very clear that the Opposite Party is carrying his business in Bangalore and the Complainant had booked the Order in Bangalore.  Nodoubt as per the conditions of the Use of the Website of the Opposite Party Clause-22 is very clear these conditions are governed by and construed in accordance with the laws of India and agree to submit to the exclusive jurisdiction of the Courts at Delhi”, but in spite of that it is not proper to accept the argument of the learned Counsel for the Opposite Party.  Since Section-11 of the Consumer Protection Act, 1986 is very clear that the Jurisdiction of the District Forum within the local limits where the Opposite Party or Opposite Parties or voluntarily resides are carrying business or the cause of action, wholly or in part, arises.  In the instant case, the cause of action for this complaint arises in Bangalore and also the Opposite Party is carrying his business in Bangalore, thereby, this Forum has got Jurisdiction to entertain the complaint.  Hence this point is held in Affirmative.
11. POINT NO.3:-  It is the case of the Complainant that the Complainant had visited Amazon on 30^th May 2016 and found that an offer was quoted by the Opposite Party at the rate of Rs.30,000/- for the product Apple IPhone 6s Gold 64GB.  Being attracted by the offer the Complainant placed the Order for the same at 7.22 A.M and successfully made a payment of Rs.30,024.95 immediately on the same date.  It was also confirmed that the Seller G.A Sports had received the Order and the product would be delivered between 4^th June 2016 for 9^th June 2016.  But after 1 hour 4 mins the Order was cancelled though an email with the pleas of insufficient inventory”.  When the Complainant checked the website once again after few minutes even found that the offer of Rs.30,000/- for the product was still available in their Website.  Later on when the Complainant followed-up the Complainant was intimated that the Order was cancelled due to incorrect pricing which is contradictory.  There is a great difference between the insufficient inventory and incorrect pricing.  Similar things happened in case of Order No.403-8117165-6316342 and 403-1466066-6270708.  The products were ordered on 4^th March 2016 and were cancelled on 10^th March 2016 by the Opposite Party on the plea of incorrect pricing or the seller did not confirm the shipment.  In order to substantiate this, the Complainant in his sworn testimony he has reiterated the same and produced offer made by the Opposite Party in the Apple IPhone 6s Gold 64GB from Amazon through Website also selling of Apple IPhone 6s Gold 64GB  for a consideration of Rs.30,000/- and the Complainant accepted this offer.  This is clear as per the Order of confirmation No.403-0388836-1665133 and paid sum of Rs.30,000/- through online and also produced the cancellation of the Order placed by the Complainant.  On the ground of insufficient inventory, the order placed by the Complainant bearing No.403-0388836-1665133 from G.A.Sports has been cancelled.  This evidence of the Complainant has not been challenged or disputed by the Opposite Party.

12. Even the Opposite Party in their version have admitted these facts, but the defence of the Opposite Party is that the Opposite Party has not directed access felicitator and provides online market place for the similar and the customer and the Opposite Party are not responsible for the respective listing of the product on the website.  The Complainant placed an order for Apple IPhone 6s Gold 64GB from the seller that is G.A Sports bearing Order No.403-0388836-1665133.  The Order was cancelled on the same day i.e., 30^th May 2016 by the seller due to pricing error and the same was intimated to the Complainant vide email dt.May 30, 2016 and accordingly a refund was also initiated on June 30, 2016.   To substantiate this defence of the Opposite Party, the Opposite Party in his sworn testimony, he has reiterated the same and produced the cancellation of the Order.  As looking into this, the Opposite Party by sending email to the Complainant informed that the Order placed by the Complainant Order No. bearing No.403-0388836-1665133 from G.A.Sports has been cancelled and refund will be initiated with the Bank shortly.  This email is dt.30^th of May 2016 i.e., the same day the Complainant place an Order and within 1 hour from the date of placing of Order by the Complainant.  As soon as the Complainant booked the Order with Opposite Party informed promptly regarding cancellation of the Order placed by the Complainant and also produced the Refund Order it is dt.31.May 2016 it clearly reveals that the confirmed that refund for amount Rs.30,024.95/- has been successfully processed on 30^th May 2016 so as soon as cancel the Order placed by the Complainant.  The Opposite Party also refund the consideration amount paid by the Complainant.  This evidence of the Opposite Party has not been challenged by the Complainant.  Therefore, it is proper to accept the defence taken by the Opposite Party that in view of wrongly mentioning of the price on the website of the Opposite Party by the seller i.e., G.A.Sports the order purchasing IPhone 6s Gold 64GB was cancelled by the seller the same was immediately intimated to the Complainant by sending email and on the next day the Opposite Party refunding consideration amount, thereby there is no deficiency of service on the part of the Opposite Party.  On the other hand, the Complainant fails to prove that there is deficiency of service on the part of the Opposite Party or the Opposite Party adopting unfair trade practice.  Hence, this point is held in the Negative. 

13. POINT NO.4:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed.  No cost.

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 25^th day of November 2017)

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Krishnendu Paul, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Apple IPhone 6s Gold 64GB Offer quoted for 30,000/-
2. Acceptance of Order
3. Acceptance of Payment of Rs.30,000/-
4. Cancellation of Order
5. Email conversation with Amazon CS Team
6. Copy of Pan Card

Witness examined on behalf of the Opposite Parties:

1. Sri.Rahul Sundaram, Senior Corporate Counsel of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

1. Copy of the Authorization Letter in favour of Rahul Sundaram
2. Copy of Board Resolution dt.Septemer 22, 2014.
3. Copy of Conditions of Use and Sale as available on the website
4. Copy of Cancellation email dt.May 30, 2016,
5. Copy of the refund initiated.
6. Copy of the Return Policies.