Delhi

East Delhi

CC/206/2021

R K SHARMA(SR. CITIZEN) - Complainant(s)

Versus

M/S VEDANTA ELECTRICAL PVT LTD. & ORS - Opp.Party(s)

01 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 206/2021 

 

	R.K. Sharma, A- 4 Plot No.32, Indraprastha Extension, Delhi -110092	….Complainant
Versus
1	M/s Vedanta Electrical Pvt ltd. Khasra No 155, Plot No 360 and 361 Ind Area, Pooth khurad Delhi 110039.	……OP1
2	M/S Amazon Seller Services Pvt Ltd. EROS PLAZA, EROS CORPORATE TOWER. NEHRU Place New Delhi-110019	……OP2

 

Date of Institution	:	01.04.2021
Judgment Reserved on	:	28.02.2023
Judgment Passed on	:	01.03.2023

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

Order By: Shri S.S. Malhotra (President)

 

JUDGEMENT

1. By this order the Commission shall dispose off the complaint of the complainant with respect to deficiency in service on the part of OPs in not providing the Geyser which was ordered to OP1 through OP2.   
2. Brief facts as stated by the complainant in the complaint are that the complainant, being attracted by the offer of 25Ltr., 5 star Candes Geyser manufactured by OP1, and to be supplied by OP2, placed an order for the said Geyser and made advance payment of Rs.3649/- on 05.11.2020 and it was assured that the said Geyser would be delivered on 07.11.2020, but it was neither delivered on 07.11.2020, 08.11. 2020, 09.11. 2020, and even on 10.11. 2020 by postponing the delivery four times and even one unnamed gift which was also to be delivered along with the product, was not delivered and ultimately, the OPs, unilaterally, without any reason cancelled the delivery of the above products and refunded the amount to the complainant 18.11.2020.                
3. It is submitted that non supply of the Geyser, despite having received the amount, is an ‘unfair trade practice’ on the part of OP1 and OP2 and because of this reason the complainant had to purchase another Geyser for Rs.5400/- in the peak winter season which caused him mental harassment and as such he has filed the present complaint seeking the directions to be issued to the OPs as follows:

• To pay compensation of Rs.2,00,000/- for mental torture and physical harassment. 
• To pay interest @ 24% on the amount of 3649/- kept by them from the date of payment to the date of refund. 
• To pay the complainant Rs.5400/- spent by complainant for arranging alternative items from the market.  At a higher rate and after suffering chilly winter.
• To impose exemplary cost on the OP1 and OP2 of Rs.50,000/- for indulging in such unfair trade practices publically. 
• To pay legal expenses of Rs.25,000/-. 

4. OPs were served and OP1 did not appear despite service and was proceeded Ex-parte vide order dated 20.04.2022.  OP2 filed its detailed Written Statement taking preliminary objection that complaint is not maintainable against OP2 for the reason that the address of the OP2 is not properly mentioned as OP2 is not working from that address and even otherwise OP2 has no role to play in the refusal or processing of the order by the OP1, as the complainant placed an order to the listed seller, on the platform of OP2 which was scheduled to be delivered by OP1 on 07.11.2020 and which was not delivered and ultimately the delivery of the product was cancelled by the OP1 i.e. the seller and amount of consideration was returned.  The liability if any with respect to cancellation of the delivery of the product is of the seller only and not of the ASSPL who merely operates as an e-commerce market place and the same transaction was executed between seller and the complainant.  It is further submitted that in Paramananda Tripathy vs Bank of Baroda, [(3) 1992 CPJ 2311 following has been held: 

 

"Consumer must come with clean hands. Relief to be granted under the Consumer Protection Act is equitable based on rights of a consumer Where consumer does not disclose the background and makes an endeavor to suppress facts to get redressal under the Act, a redressal agency created under the Act should not extend its helping hand even in a benevolent statute and should leave the consumer to have his remedies in the conventional forums

5. It is further submitted that complainant has no locus to file the complaint against OP2 as the complainant never paid any consideration to the OP2 and therefore complainant is not a consumer of OP2 under Consumer Protection Act.  It is further submitted that it is settled law that the deficiency as regards the delivery of the product was that of the independent third party seller and not of the Amazon i.e. OP2.  It is further stated that buyers of the independent third party seller use e-commerce market place, post registration with the OP2 free of cost or charge.  Therefore, present complaint is only a mischief played by the complainant who is trying to create confusion by mixing the causes, warranties and the liabilities in between the seller and the intermediary.  OP2 only provides assistance and facilitates safe transactions in between the buyers and the independent third party sellers without charging anything from the buyers.  Therefore, complaint of the complainant against OP2 be dismissed. 
6. Various clauses of the policy of the OP2 are mentioned which have not much relevance with facts of the complaint on merit but it has relied upon the case of Sonia Sethi vs One Plus & Anr. CC No 469 of 2016, it was held by the Hon'ble District Forum, East Delhi that:

“e-commerce entities providing marketplace will not exercise ownership over any of the goods or products sold through its platform Therefore, it is pertinent to state that ASSPL/Answering Respondent at no paint of time vends. creates, manufactures, owns or provides the goods that are sold on its e- commerce marketplace. It is therefore evident that ASSPL/Answering Respondent falls within the definition of an intermediary under the IT Act.” 

 

Further, in Mohammad Baig v. ASSPL Complaint Case No 9/2017 decided on 28.05.2020 the Hon'ble State Consumer Disputes Redressal Commission has held that ASSPL being an intermediary as per Section 79 of the IT Act would not be liable for any third party information, data or communication link.

 

Reliance is also placed on the decision of the Hon'ble Supreme Court in the matter titled Bharti Knitting Company vs DHL Worldwide Express Courier Division of Airfreight Ltd, (1996) 4 SCC 704 wherein it has held that:

 

"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned senior counsel, that normally parties are bound by such contracts it is for the party to establish exception in a suit When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the rational Commission could go behind the terms of the contract? it is true, as contended by Mr. MN Krishnamani, that in an appropriate case, the Tribunal without trenching upon actual disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon fits own facts in an appropriate case where there is an acute dispute of facts necessarily the tribunal has to refer the parties to original civil Court established under the CPC or appropriate State law to have the claims decided between the parties But when there is a specific term in the contract, the parties are bound by the terms in the contract”. 

In view of the above citations, it is further stated that the OP2 is not liable and as far as present case is concerned, and the OP2 has never provided any services to the complainant for consideration and complaint case is not maintainable.  It is reiterated that amount has already been returned to the complainant and dispute if any is between the complainant and the suppliers with respect to 15 days period interest and the alleged inconvenience but in any case OP2 has no role in it.        

7. The Complainant then filed Rejoinder to the Written Statement of OP2 and submitted that routine contention raised on behalf of OP2, are wrong and denied and the complainant reserves the right to reply any specific query relating to functioning and deficiency on the part of OP2.  The address of the OP2 is correct as given by the complainant the product was listed by the seller on 04.11.2020 and was scheduled to be delivered on 07.11.2020 which was not delivered, which shows that there is direct involvement of OP2  which is deficiency of service and therefore it is prayed that complaint of the complainant be allowed.    
8. Complainant has filed its evidence and has not exhibited any documents.    
9. OP has filed evidence on the lines of the Written Statement and exhibited the following documents: 

• Copy of Authorization Letter as Exhibit- A.
• Copy of Board Resolution as Exhibit – B.
• Copy of Bank Transaction Record as Exhibit- C.
• Directions for opening and maintaining accounts and settlements of payments for e-payments involving intermediaries as Exhibit- E.
• Copy of Conditions of Sale as Exhibit – F.
• Copy of Policy of FDI in e-commerce as Exhibit – G.    

10. The Commission has heard the matter and perused the record. 
11. The crux of the matter is that complainant placed an order through OP2 to OP1 for supplying a Geyser and made the payment on 05.11.2020 and despite having made the payment of Rs.3649/- the product was not delivered on the assured time and in any case it was not delivered and ultimately the delivery of the product was cancelled and amount was returned on 18.11.2020 and complainant wants the interest on the amount for these 15 days period along with certain compensation, legal charges etc.  The Contention of the OP2 is basically that complainant is not a consumer and OP2 as it is only a market place/ platform provided to the general public and after registering on this platform free of cost anyone can place the Order directly to the seller and there is no role of the OP2 in supplying the material and particularly in the entire complaint the complainant has not stated as to how the OP2 is service provider for consideration to the complainant and therefore complaint of the complainant be dismissed against OP2. 
12. OP1 has not turned up and has been proceeded Ex-parte.  From the contention raised by the OP2 and despite the Rejoinder filed by the complainant to the Written Statement of OP2, the complainant has not been able to prove a single fact, as to how much consideration he paid to the OP2 for availing/ utilizing his platform.  It is not at all mentioned in the application or in the evidence.  As far as Unfair Trade Practice is concerned in absence of any consideration there cannot be any trade in between the complainant and the OP2 and in absence of any trade there cannot be any Unfair Trade Practice as far as OP2 is concerned.  The Complaint of the complainant against OP2 is therefore dismissed. 
13. As far as OP1 is concerned, the OP1 received the amount from the complainant, assured the complainant that the product would be delivered and ultimately after rescheduling the delivery of the product four times it was cancelled.  This amounts to deficiency in service by the OP1.   Simultaneously the fact is clear that the amount which the complainant paid has already been returned by OP1 to the complainant and there is no dispute with respect to the fact of not returning the amount so taken by OP1.  The deficiency on the part of OP1 therefore is only with respect to payment of interest for about 15 days to the complainant as far as pecuniary damages are concerned.  Accordingly, OP1 is directed to pay interest @ 9% p.a. to the complainant for a period of 15 days on the amount of Rs.3649/-. 
14. Now, coming on the non-pecuniary damages/compensation, the complainant has submitted that he could not get the Geyser in time in the month of November which is generally a winter season and therefore he was constrained to by another Geyser for Rs.5400/-  on account of none delivery of the product by the complainant.  No documents has been placed on record by the complainant to prove whether he purchased another Geyser, or whether he purchased the geyser of same configuration/ or what was the capacity of that Geyser, how that Geyser was different from the Geyser which was ordered to the OP1 or what were the specifications of the previous Geyser or the subsequent Geyser.  The bill of Rs.5400/- is also not placed on record.  Therefore since the complainant has not filed any evidence as to whether he actually purchased another Geyser or not, therefore this relief   cannot be granted. 
15. Now, coming to the facts of compensation.  The complainant has claimed Rs.200000/- for mental torture and physical harassment and Rs.50000/- for indulging in Unfair Trade Practices.  The maximum loss which the complainant suffered is an interest of 15 days on Rs.3649/-.  There are no fix parameters/ guidelines by any Commission so far, as to what would be the amount of compensation in particular matter.  Generally the compensation or mental torture or the harassment is directly co-related with the nature of services which were to be provided and it may be different for any particular service and different for another kind of service.  In absence of any specific guidelines as discussed above, apart from interest for 15 days no much loss suffered by the complainant, therefore the request for paying compensation of Rs.200000/- or payment of Rs.5400/- or for imposing exemplary costs on OPs is declined.  The complainant is contesting the matter in person and therefore there is no question of payment of legal expenses.    
16. In view of the fact that there is no guidelines with respect to compensation, the judgment which was already delivered by the Hon’ble Supreme Court and the same would help this Commission as to how it should be calculated.  In this regard, judgment in Big Bazar (Future Retail Ltd.) Vs Sahil Dawar on 22 December, 2020 decided by the Hon’ble NCDRC is relevant. 
17. In that case the dispute before the Hon’ble District Forum  was that the Big Bazar charged additional cost of Rs.17 for Carrybags to carry the goods purchased by the complainant and the Hon’ble District Forum ordered the OP (Big Bazar (Future Retail Ltd.) to pay compensation of Rs.100/-.  The cost of litigation was given as Rs. 1100/- and OP was also directed to deposit Rs.5000/- in the bank account of State Commission Welfare Fund (Legal Aid). 
18. Coming to the facts of the present case the maximum loss which the complainant suffered is around Rs. 30-40/- only i.e. interest of Rs.3649 of 15 days which all would come around between 30-40 rupees.  Compensation can also be awarded only in that ratio.    

Therefore, taking clear view the Commission is granting compensation of Rs.500/-.  The OP1 is also directed to pay interest @ 9% p.a. on Rs.3649 from the date 05.11.2022 to 18.11.2022 and OP1 is directed to deposit Rs.5000/- in the bank account of State Commission Welfare Fund (Legal Aid), Account No. 10310544717, State Bank of India, I.P. Estate, Delhi.    

This order be complied with within 30 days from the date of receipt of the order.

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room  

Announced on 01.03.2023