Mr. Vijay Kapoor v. 1. Systech IT Solutions Pvt. Ltd. thru its M.D.& 3 others

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("Independent Third Party Seller") with one year onsite warranty and which stopped working well within the warranty period. The Complainant when reached out to the online platform seller, Amazon, and also to the local service station of Lenovo for repair under warranty, there was no proper response. As the Complainant was in urgent need for a computer for his work, he was left with no other option but to make alternative arrangements by purchasing a replacement computer from Amazon itself (Renewed) Lenovo ThinkCentre M92p Desktop (Core 15 2400 3.2 Ghz, 8 GB RAM, 500 GB HDD, Win 10 Pro ("Product II) vide order bearing no. 407- 3316316-0297906 on 08.02.2021 for an amount of Rs. 12,849/- (Rupees Twelve Thousand Eight Hundred and Forty Nine only)-(details as per the Tax invoice annexed by the Complainant at Page No. 8) ("Order II") from the independent third party seller, i.e. sold by namely Kedia Enterprise. ("Independent Third Party Seller") which is listed on the e- commerce marketplace operated by OP-3/ASSPL.

The subject matter of concern/issue of this Complaint is with regard to the product namely Lenovo Ideapad 330 Intel Celeron 3867U 15.6 inch HD Laptop ("Product I") vide order bearing no 402-6368333-3794722 on 20.02.2020. According to the Complainant, the OP- 3/ASSPL i.e. Amazon Seller Services P. Ltd. is not merely a portal, but for all practical purposes, it is the seller. The OP- 3 not only facilitate sellers, but collects the orders, delivers them, collects returns on behalf of the sellers, receives cash / digital payment for sales and / or accepts payments via banking / card media, and it also refunds monies against returns, mediates disputes, even assures guarantees against seller failures, etc... all for and on behalf of the sellers. It is further stated that OP -3 /ASSPL i.e. Amazon does provide "customer service" but now the same has effectively been denuded of its e-mail feature of records, thereby causing a huge lacuna in its efficacy and / or something that could be done of 2 or 3 minutes by email, now takes much time and effort in dealing with their AI / chats as annexed by the Complainant at Page No. 12 to 25. The Complainant states that the other option would be a verbal phone discussion with no record of what transpired. It is also further stated by the Complainant that not complying with Section 4 of The Consumer Protection (E-Commerce) Rules, 2020 of the CP Act to provide proper and timely resolution to consumer issues amounts to Deficiency in Service and Unfair Trade Practice. It is also submitted by the Complainant that not providing easy, effective, and time-effort efficient customer service to the

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consumer. It is also stated by the Complainant that the post-sales deleting / removing the seller pages from the e- portal is Deficiency in Service and also Unfair Trade Practice. It is further submitted that failure to correct such shortcomings amounts to negligence on the part of the Respondents (Ops) and they are jointly and severally liable for costs, expenses, damages, exemplary damages for the unwarranted mental, physical, and financial loss / harassment caused to the Complainant, and for making him unnecessarily run around courts.

The Complainant has approached the District Commission and prayed for reliefs in the said Complaint i.e. OP - 1 and OP- 2 jointly and severally direct: a) OP-3 to within 7 days to conform to Section 4 of The Consumer Protection (e- Commerce) Rules, 2020; b) OP-3 to not delete / alter any seller pages till at least the expiry of warranty period from the last sale; c) OP - 3 to retain sufficient reserves of seller funds till the expiry of warranty period so as to meet any deficiency consumer claims; d) To take back the non-working laptop and make good the approximate Rs. 20,000 spent on alternative -replacement purchase; e) Costs of Rs. 30,000; f) Miscellaneous expenses of Rs. 10,000; g) Rs. 40,000 each compensation for the negligent unwarranted mental, physical, and financial harassment; h) Exemplary damages of Rs. 40,000 each; i) Permission for the complainant's beneficiaries to pursue the matter; j) Any other relief thought to be fit and proper.

Upon perusal of the Complaint, documents annexed, the arguments advanced on admission of the Complaint, the Opposite Parties (OP-1,OP-2,OP-3 and OP-4) were duly notified vide the issuance of the notice(s) by Regd. AD along with the copy of Complaint and list of documents annexed/relied by the Complainant. The Roznama records that the Registered AD Card of the notice sent to OP-1 returned to the Office of the District Commission on 07-09-2021 with remark "Security Refused". An opportunity for filing of Written Version to contest the case was provided to all the Opposite Parties. It is seen that the Complainant moved an application to implead additional opposite party at 1a in cause title and file amended Complaint as the Complainant stated that upon investigations on internet of GST registration details (details attached with the application) revealed that the address of OP-1 i.e. Systech IT Solutions Pvt. Ltd. has been wrongly portrayed in their invoice/e-portal by the sellers and/or by Amazon and the address while checking the GST registration details of OP-1 is not the same as mentioned in the Tax Invoice issued to the Complainant.

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The Opposite Parties i.e. OP-1, OP-2 and OP-4 was marked exparte vide Order dated 06-09-2021. Adv. Mr. P. Agrawal was present for OP-3 who filed application on behalf of Amazon Seller Services Private Limited i.e OP- 3 ("ASSPL/answering respondent) for deletion of "Managing Director" added personally as OP-3 in the array of parties in the Complaint to make necessary amendments in the cause title of the Complaint stating that the Complainant has impleaded Amazon Seller Services Pvt Ltd through its Managing Director as the Opposite Party No 3 and Systech IT Solutions Pvt Ltd. through Amazon Seller Services Pvt. Ltd as Opposite Party No 2 to the instant complaint filed before the District Consumer Disputes Redressal Commission. That OP- 3/ASSPL/ Answering Respondent is the entity operating the e-commerce marketplace www.amazon.in ("E-commerce marketplace") having its registered address at Brigade Gateway, 8th Floor, 26/1, Dr. Rajkumar Road Malleshwaram

(W) Bangalore-560055, Karnataka, India. It is stated that it is an already settled legal principle that no individual can be held liable for the acts of the Company. It is further submitted that OP-3/ASSPL operates and manages the e-commerce marketplace, where independent third party sellers list their products for sale and Systech IT Solutions Pvt. Ltd. is one such independent third party seller and that OP-3/ASSPL is a legal entity distinct and separate from independent third party seller (OP-1) i.e. Systech IT Solutions Pvt. Ltd. and has no direct relation with the Independent Third Party Seller. Therefore, it is clear that the Complainant has filed the instant complaint without verifying facts and exercising reasonable due diligence and therefore has wrongly impleaded OP-3 as a party to the Complaint. It is also stated that Complainant has no privity of contract with the managing director of ASSPL. As the e-commerce marketplace is operated by the OP-3 thus the complaint against the Managing Director of OP-3/ASSPL is not maintainable.

It is stated that the Complainant has neither sought any relief from the Managing Director of OP-3/ASSPL in their personal capacity, nor can the Managing Director of ASSPL grant any relief to the Complainant, as a company registered under the Companies Act, 1956 is in itself a legal entity, different from its employees and workers. As the Complainant has no cause of action against the Managing Director of OP-3/ASSPL and that the Managing Director of ASSPL has been arrayed with mala fide intention and for causing unnecessary harassment and creating undue pressure on the OP-3. It is also

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stated that the Complainant has improperly and unnecessarily impleaded the Managing Director of OP-3/ASSPL in the complaint, who are neither necessary nor proper party, and the complaint is frivolous and vexatious qua the Managing Director of OP-3/ASSPL and as such the name of the Managing Director of OP- 3/ASSPL is required to be struck off from the title of the complaint and has cited following citations i.e., Hon'ble Kerala State Forum has, in C.H. Mahabaleswara Sharma & Anr. Vs. M. Sathyanaryana, MM Infotech Ltd. & Ors. FA No. 791/2006, decided on 11-12-2009, where it was held that "It is a settled position that the Directors of a company cannot be made personally liable for the liability of the company. There can be no doubt about the fact that the company is a separate entity and the liability of the company cannot be imposed on its Officers or Directors." "It is also to be noted that the Directors can be made personally liable only after lifting the corporate veil of the company. But there must be sufficient materials available on record to proceed against the Directors of the company by lifting corporate veil" And also cited the case of Mr. K.S. Raju vs. G. Savitri & Ors.,

FA 1390/2008 decided 21.1.2010 APSCDRC, Mr. K.S. Raju, Chairman & Managing Director of M/s Nagarjuna Finance Ltd. was impleaded as a party. In that case the Hon'ble Andhra Pradesh State Forum, relying on the judgment passed by the Hon'ble National Forum in RP No. 1181/2001 & 2, made the following order:

"The liabilities of the Directors of the Company are different and distinct from that of a partnership firm. Under the partnership Act, the partners are jointly and severally liable for discharging the liability of the firm. But the Company incorporated under the Companies Act stands on a different footing. It has a separate juristic personality distinct from the shareholders. The roles of the Directors of the Company are independent from the existence of the Company. They are appointed as directors and they cease to be directors after their term or on their resignation. There is no provision in the Companies Act, 1956 which makes the Managing Director and Directors personally liable for the recovery of dues of the Company. This legal position has been well settled as reported in Kundan Singh V. Moga Transport Co. (P) Ltd, & ORS VOL 62 Company Cases Page 600 & Bank of Maharashtra VS. Racmann Auto Pvt. Ltd., reported in Vol.74 Company Cases page 71 & 22. Accordingly, basis the aforementioned, it was ordered that the name of Shri. Raju be deleted from the array of parties as representing M/s Nagarjuna Finance Ltd." The OP-3 states that in view of the aforesaid facts and circumstances, prayed that the name of the Managing

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Director of OP-3/ASSPL be ordered to be struck off from the title of the Complaint.

That the Advocate for the OP-3 filed the written version /reply on behalf of M/s. Amazon Seller Services Private Ltd(ASSPL)/OP-3 to the complaint and stated their preliminary submissions as under:-

1. That Amazon Seller Services Private Limited, is a company duly incorporated under the Companies Act, 1956.

2. OP-3/ ASSPL operates and manages the e-commerce marketplace:

i.e. www.amazon.in where independent third party sellers list their products for sale. That any seller is free to list any product for sale and any buyer is free to choose and order any product from any independent third party seller selling that product on the e-commerce marketplace and ASSPL exercises no influence or interference in the said process.

3. The main role of OP-3/ASSPL is to make the e-commerce marketplace user friendly for the sellers to list necessary details of the products and for the buyers for searching and browsing through the said products.

4. That OP-3/ASSPL merely provides an e-commerce marketplace for the transaction of sale that takes place between an independent third party seller and a buyer.

5. That all customers who transact or register an account on the e- commerce marketplace, i.e. amazon.in enter into a 'Conditions of Use' agreement with OP-3/ASSPL, where there is a clear understanding that all sale transactions are entered only by and between the independent third party sellers and the buyers.

6. Clause 3 of the Conditions of Use categorically affirms the legal position of OP-3/ASSPL as a facilitator, by stating that it merely operates an e-commerce marketplace to facilitate sale transactions entered by and between the buyer and the independent third party seller and further clarifies that all the transactions of sale undertaken by a buyer on the e- commerce marketplace are strictly bipartite agreements entered into between the buyer and the independent third party listed on the

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marketplace of OP-3/ASSPL emphasizing that OP-3/ASSPL is not the seller or manufacturer of the products listed on its e-commerce marketplace.

7. Further, Clause 13 of the "Conditions of Use" states OP-3/ASSPL is not liable for performance of the sale agreement executed by and between the buyer and the seller on the e-commerce marketplace. Relevant extracts from the 'Conditions of Use' are reproduced below as follows :

"3. E-Platform for Communication"

You agree, understand and acknowledge that the website is an online platform that enables you to purchase products listed on the website at the price indicated therein at any time from any location. You further agree and acknowledge that Amazon is only a facilitator and is not and cannot be a party to or control in any manner any transactions on the website. Accordingly, the contract of sale of products on the website shall be a strictly bipartite contract between you and the sellers on Amazon.in.

"13. Disclaimer"

You acknowledge and undertake that you are accessing the services on the website and transacting at your own risk and are using your best and prudent judgment before entering into any transactions through the website. You further acknowledge and undertake that you will use the website to order products only for your personal use and not for business purposes. We shall neither be liable nor responsible for any actions or inactions of sellers nor any breach of conditions, representations or warranties by the sellers or manufacturers of the products and hereby expressly disclaim and any all responsibility and liability in that regard. We shall not mediate or resolve any dispute or disagreement between you and the sellers or manufacturers of the products. We further expressly disclaim any warranties or representations (express or implied) in respect of quality, suitability, accuracy, reliability. completeness, timeliness, performance, safety, merchantability, fitness for a particular purpose, or legality of the products listed or displayed or transacted or the content (including product or pricing information and/or specifications) on the website. While we have taken precautions to avoid inaccuracies in content, this website, all content, information (including the price of products), software,

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products, services and related graphics are provided as is, without warranty of any kind. We do not implicitly or explicitly support or endorse the sale or purchase of any products on the website. At no time shall any right, title or interest in the products sold through or displayed on the website vest with Amazon nor shall Amazon have any obligations or liabilities in respect of any transactions on the website."

8. It is further submitted by the OP-3/ASSPL that all the orders placed by the buyers are directly placed with the independent third party sellers listed on the e-commerce marketplace. ASSPL/ Answering Respondent merely provides an commerce marketplace where the sale transaction is entered by and between the buyer and the independent third party seller. These online sale e- transactions by the user of the e-commerce marketplace of ASSPL/ Answering Respondent are governed by the "Conditions of Sale" which reiterates that there is a bipartite agreement entered into between the buyer and independent third party seller as stipulated under the "Conditions of Use". Copies of 'Conditions of Use' and 'Conditions of Sale' are annexed by OP-3/ASSPL and marked as ANNEXURE- 'C'.

9. The OP-3/ASSPL also stated that vide Press Note 2 (2018 Series) issued by the Department of Industrial Policy and Promotion (DIPP) (the "FDI Policy"), signed on 26.12.2018, a clear distinction has been made between

"marketplace based model of e-commerce" and "inventory based model of e- commerce", which is as follows:

"Marketplace based model of e-commerce is defined as "providing of an information technology platform by an e-commerce entity on a digital and electronic network to act as a facilitator between buyer and seller"

"Inventory based model of e-commerce' is defined as "an e-commerce activity where inventory of goods and services is owned by e-commerce entity and is sold to the consumer directly".

The OP-3 states that in accordance with the FDI Policy, a marketplace is a recognized concept wherein an e-commerce entity operating a marketplace is required to act as a facilitator between a buyer and an independent third party seller of the goods and services and it is thus submitted that OP-3/ASSPL follows a marketplace based model of e-commerce and acts as an intermediary that only provides a neutral platform to allow sellers to interact

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with their buyers without exercising ownership over any goods, or indulging in the manufacture or "dealing in" any goods.

10. It is further submitted that OP-3/ASSPL is an 'intermediary as defined under the Information Technology Act, 2000 (hereinafter referred to as the 'IT Act') and complies with all the obligations laid down for intermediaries in the Information Technology (Intermediaries Guidelines) Rules, 2011 (hereinafter referred to as 'the IT Rules'). Section 2(w) of the IT Act defines intermediary as the following:

"intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web- hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes."

As per Section 79 of the IT Act, OP-3/ASSPL, being an intermediary, is not liable for any information/ material/ warranties/ representations made by the independent third party sellers on the e- commerce marketplace. Section 79 of the IT Act is reproduced below as follows:-

"79. Exemption from liability of intermediary in certain cases. (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2)....

(3)...".

"It is submitted that OP-3/ASSPL is compliant with the pre- requisites of Section 79 of IT Act and IT Rules and thus is entitled to an exemption from liability for the information/ material hosted on its marketplace."

It is submitted that as per the provisions of the Consumer Protection Act, 2019, OP-3/ASSPL has been defined as an electronic service provider' which provides an e-commerce marketplace where independent third party sellers list and sell their products to buyers. Section 2(17) of the Consumer Protection Act, 2019 defines the term electronic service provider as follows:

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"2. Definitions (17) "electronic service provider" means a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites.

From the above provision, it is evident that the term 'electronic service provider' includes an online/e-commerce marketplace like that of OP-3/ASSPL. Further, the term electronic service provider elaborates the role of an electronic service provider like that of OP-3/ASSPL as one which is providing

(a) technologies or (b) processes to enable a 'Product Seller' to engage in advertising or selling goods or services to a consumer. An online/e-commerce marketplace like OP-3/ASSPL is separate and distinct from a Product Seller' in fact, OP-3/ASSPL being an online/e-commerce marketplace provides processes to enable a 'Product Seller to engage in advertising or selling goods or services to a consumer.

It is further submitted that the term 'Product Seller has been defined under Section 2 (37) of Consumer Protection Act 2019 as a person who inter alia is engaged in the business of selling products for commercial purposes. Section 2

(37) of Consumer Protection Act, 2019 makes it clear that the provider of an online/e-commerce marketplace like OP-3/ASSPL/ Answering Respondent is not a 'Product Seller under the Act.

The OP-3 states in their reply/ written version that OP-3/ASSPL operates an e- commerce marketplace where over five lakh independent third party sellers have listed their products for sale. Systech IT Solutions Private Limited is one of the independent third party sellers which has listed its products for sale on the e-commerce marketplace operated by ASSPL/ OP-3 and that in the instant case, the Complainant had placed the following two orders i.e.

a. an order to purchase a product namely Lenovo Ideapad 330 Intel Celeron 3867U 15.6 inch HD Laptop ("Product I") vide order bearing no 402- 6368333-3794722 on 20.02.2020 ("Order I") for an amount of Rs. 21,990/- (Rupees Twenty One Thousand Nine Hundred and Ninety only) from the independent third party seller, namely Systech IT Solutions Private Limited, ("Independent Third Party Seller") which is listed on the e-commerce marketplace operated by OP-3/ASSPL.

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b. an order to purchase a product namely (Renewed) Lenovo ThinkCentre M92p Desktop (Core 15 2400 3.2 Ghz, 8 GB RAM, 500 GB HDD, Win 10 Pro ("Product II) vide order bearing no. 407- 3316316-0297906 on 08.02.2021 for an amount of Rs. 12,849/- (Rupees Twelve Thousand Eight Hundred and Forty Nine only) ("Order II") from the independent third party seller, namely Kedia Enterprise, ("Independent Third Party Seller") which is listed on the e- commerce marketplace operated by OP-3/ASSPL.

It is also the contention of the OP-3 that the manufacturer of both the above Products is Lenovo India Pvt. Ltd. ("Manufacturer") which has been impleaded as Opposite Party No 4 to the present complaint. That in the present complaint, the Complainant has raised a grievance for a Lenovo laptop purchased for an amount of Rs. 21,990/- (Rupees Twenty One Thousand Nine Hundred and Ninety only) on 8.02.2021 from the independent third party seller namely Systech IT Solutions Pvt. Ltd. And that it is clear from a bare perusal of the invoices annexed by the Complainant to the complaint that a laptop worth Rs. Rs. 21,990/- (Rupees Twenty One Thousand Nine Hundred and Ninety only) was only purchased on 20.02.2020 (Order 1). Therefore, the Complainant has incorrectly mentioned the date of the order of the Product. It is stated by the OP-3/ASSPL that the Complainant has alleged in his Complaint that the Product stopped functioning within the warranty period and that in regard thereto, the Complainant is claiming refund and compensation inter alia from OP-3/ASSPL who is merely operating an e-commerce marketplace and does not provide any after sales services for the products sold on the e-commerce marketplace. Thus at the outset, it is the case of OP- 3/ASSPL that the Manufacturer i.e. Lenovo India Private Limited (Opposite Party No 4) and/or the Independent Third Party Seller i.e. Systech IT Solutions Pvt Ltd would be liable for the alleged defects in the product and not OP- 3/ASSPL as OP-3/ASSPL is not the seller. manufacturer or service provider and is therefore not liable for the product delivery, quality or performance. The OP-3 has also submitted that OP-3/ASSPL is providing a 'free for all"

marketplace to buyers who have access to the internet and the same has been availed of by the Complainant to purchase the Product. That pursuant to the free of cost services provided by OP-3/ASSPL, the Complainant is not a consumer qua OP-3/ASSPL as per

the Consumer Protection Act, 2019. The Complainant therefore does not have

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the locus standi to file the present complaint. It is thus submitted that the complaint is liable to be dismissed qua OP-3/ASSPL.

The OP-3 states that against the Order, a tax invoice bearing no. BLR5-2860 dated 20.02.2020 ("Invoice") was issued by the Independent Third Party Seller. i.e. Systech IT Solutions Pvt. Ltd. indicating its Income Tax Permanent Account Number (PAN) and GSTN against the Invoice as AARCS1741C and 29AARCS1741C1Z9 respectively, clearly evidencing that the Product was sold to the Complainant by the Independent Third Party Seller i.e. Systech IT Solutions Pvt. Ltd. A copy of the Invoice dated 20.02.2020 is annexed by OP- 3/ASSPL and marked as Annexure-D. And that the payment of consideration was made by the Complainant directly to the Independent Third Party Seller i.e. Systech IT Solutions Pvt Ltd. at the time of delivery.

The OP-3 states that a product ordered by any buyer with any independent third party seller on the e-commerce marketplace of OP-3/ASSPL is packed, sealed, shipped and delivered to the buyer by the independent third party seller alone with no role assigned to OP-3/ASSPL. That in the present case, the Independent Third Party Seller i.e. Systech IT Solutions Pvt. Ltd. delivered the Product to the Complainant. It is stated by the OP-3 that the Complainant has alleged that the Product delivered to him stopped working, pursuant to which he allegedly contacted the Manufacturer i.e. Lenovo India Private Limited (Opposite Party No 4) and it was alleged by the Complainant that the Manufacturer i.e. Lenovo India Private Limited (Opposite Party No.4) failed to address the grievances of the Complainant satisfactorily. It is further submitted by the OP-3 that the warranty with respect to the Product was provided by the Manufacturer i.e. Lenovo India Private Limited (Opposite Party No 4). Therefore, the liability to rectify the defects in the Product can only be fastened on the Manufacturer of the Product i.e. Lenovo India Private Limited (Opposite Party No.4) through its authorised service centre. That OP-3/ASSPL/ Answering Respondent who only provided the e-commerce marketplace cannot be held liable for rectification of alleged defects in the Product. However, that the Complainant has not annexed a copy of the terms of warranty which are essential for adjudication of the present complaint.

It is further submitted by the OP-3 that the attempts of the Complainant to get the Product repaired by the Manufacturer i.e. Lenovo India Private Limited (Opposite Party No.4) indicates that the Complainant was aware of the fact that

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manufacturing defects can be addressed/resolved by the Manufacturer i.e. Lenovo India Private Limited (Opposite Party No 4) and/ or its Authorised Service Centre. However, the Complainant has also impleaded OP-3/ASSPL to the present complain, which is neither the manufacturer, seller nor the service provider and also stated that the Complainant has not made any averment explaining what defects arose in the Product and has not even annexed any documentary evidence/ proof in regard thereto and prayed that the present complaint be dismissed for being vague and baseless.

The OP-3 also submitted that the Complainant had also filed a grievance with the National Consumer Helpline bearing grievance number 2837124 pertaining to the defects in the Laptop and that OP-3/ASSPL had duly responded to the grievance of the Complainant stating that the Complainant was required to contact the manufacturer and avail warranty services as the role of ASSPL was limited to that of an intermediary. OP-3/ASSPL also added that OP-3/ASSPL is neither the seller nor the manufacturer of the Product which was sold by an independent third party seller. It is also submitted that the Complainant has not made any specific allegations against OP-3/ASSPL/ Answering Respondent which is neither the seller, manufacturer or service provider. Therefore, the complaint qua ASSPL/ Answering Respondent is liable to be dismissed. The OP-3/ASSPL also stated that it is clear from the abovementioned decisions of various consumer fora that in fact the Independent Third Party Seller, ie Systech IT Solutions Pvt. Ltd. and the Manufacturer i.e. Lenovo India Pvt. Ltd. (Opposite Party No.4) are the entities which are liable for the alleged defects in the Product. And that since OP-3/ASSPL is not the seller, the manufacturer or the service provider of the Product, it is not liable for the defects. It is also stated by the OP-3/ASSPL that the role of OP-3/ASSPL in the transaction at hand was limited to providing an e-commerce marketplace, free of cost to the Complainant.

It is also the contention of the OP-3/ASSPL that as per Section 38 of the Consumer Protection Act, 2019, an expert opinion should be called for in such cases as a mandatory requirement where allegations relating to defects/ manufacturing defects are alleged, but in the present case, no such expert opinion has been called for and the product has been alleged to be defective by the Complainant on his own accord without substantiating the same with any documentary evidence

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The OP-3/ASSPL also submitted that the complaint against OP-3/ASSPL is nothing but a mischief played by the Complainant upon the e-commerce marketplace, OP-3/ASSPL to create confusion by mixing up causes and liabilities between the Independent Third Party Seller, i.e. Systech IT Solutions Pvt. Ltd., the Manufacturer i.e. Lenovo India Private Limited (Opposite Party No 4) and the e-commerce marketplace operated by OP-3/ASSPL knowing very well that OP-3/ASSPL had no role to play in the said transaction and to make out a false case against OP-3/ASSPL where none exists.

The OP-3/ASSPL has relied upon the following cases/Legal Precedents namely :-

1. Dr. Mr. Vijay Kantilal Bhagat vs. M/s Oppo Mobile India Private Limited and Ors.

2. Mr. Surendra Nandu Desai vs. Green Mobiles & Others

3. Vinay Narain vs. LG Electronics India Pvt. Ltd. & Ors.,

4. Amazon Seller Services Private Limited vs. Shri. Amit Kumar Chandra,

5. Madan Mohan Mandal vs. Manager, Lenovo

6. Amazon Seller Service Private Limited vs. Navin Bhatbanshi & Ors.

7. ASSPL vs. Mukesh Raj Sahoo

8. Shoail Shaikh vs. Cloudtail and Others

9. Bharti Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd.

10. Paramananda Tripathy vs. Bank of Baroda.

11. Amrik Singh vs. M/s. United India Insurance Company Ltd.

12. Poonam Dalal v Amazon Seller Services Private Limited and Another

13. Bhagwan Singh Shekhawat vs. M/s. R.K. Photostate & Communication & Ors

14. M/S. Pritul Machinery & Anr. vs. Anand Bahuguna. It is further submitted by the OP-3/ASSPL that the adjudication of the present complaint involves question of facts as well as of law and it necessarily requires deposition of elaborate evidence and trial. The same cannot be done in proceedings under the Consumer Protection Act, 2019 which are summary proceedings as complicated questions of law and facts are beyond the jurisdiction of this Hon'ble Commission and relied upon the following legal Precedents.

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1. Oriental Insurance Company Ltd vs Munimahesh Patel,

2. Rakesh Kumar Sharma Vs. ICICI Prudential Life Insurance Co. Ltd. and Anr.,

That OP-3/ASSPL also submitted the following Preliminary Objections as follows :-

1. Being an intermediary and E-Commerce marketplace, OP-3/ASSPL is not liable for any claims arising out of the products sold on the E-Commerce marketplace by independent third party sellers

2. OP-3/ASSPL cannot be held liable for contract of sale executed by and between the complainant i.e. the buyer and the independent third- party seller i.e. Systech IT Solutions Private Limited.

3. The Complainant is not a consumer of OP-3/ASSPL and thus does not have locus standi to file the present complaint against OP-3/ASSPL. The Contentions of the Complainant in the Written Arguments is that the OP's/OP-3 have not placed on record any agreement /documents between them and the sellers, outlining the terms of their relationship, and showing their averments to be accurate and true. The OP-3 further wrongfully claim that they have no role to play in the entire chain of events, other than offering an e- commerce platform to the sellers.

It is also the contention of the Complainant that the OPs have wrongfully alleged that he is not a consumer. This issue has been settled by virtue of the OPs themselves being indirectly the direct sellers and / or by their imposing costs / commissions on other sellers, which ultimately are paid out of his (Complainant) purchase monies and further stated that all the invoices raised on him are on OP - 2 letter-head, and moreover (mostly) the purchase monies are paid out by Amazon itself from his (Complainant) "Amazon Pay" account. The Complainant has relied and cited the following citations a) Indian Medical Association vs. V.P. Shanta, it was held that where even free services are provided to only some class of persons, these would still fall within the ambit of the CP Act because their expenses are met out of the income received from the paying class of persons.

b) Amazon Seller Services vs. Vishwajit Tapia held that the subject OP is not a mere broker or intermediary, but an agent and co-seller.

c) SC (2014): in V. Krishna Rao vs. Nikhil Super Specialty Hospital held that expert opinion was not required in regular cases, and that legislative purpose of

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the Act cannot be defeated or diluted regardless of factual position of a case by superimposing outside requirements……. if that is done, efficacy of Act would be curtailed and in many cases remedy would become illusory for common man.

d)SC (2019) in Chennadi Reddy v/s Baddam Reddy said that expert opinion, in any event, is not reliable and / or cannot otherwise trump the other available potent evidence.

It was the contention of the Complainant in his written arguments that he have repeatedly brought to the notice of the subject OP that at least 25% (maybe 40 or even 50%) of all products on their platform do not conform to the statutory labeling requirements of the country, are sold above MRP often in the garb of

"delivery charges" and / or by papering over the original printed MRP, are mis- sold and not as described in their advertisements, are fake / used products, excess cash collected is not uploaded to the customer's account, refunds for the returns are not made, the seller advertisement is removed from the e-portal, making him untraceable, etc., and even, as in the present case, the GST and / or seller details furnished in the invoice are wrong / fake, and the same would even be a serious offence and also stated that worst of all, the customer care / resolution team often does not respond, and when they do respond, they promise to revert but do not do so, etc. It is also stated by the Complainant that the

a) the seller OP is in Deficiency and Unfair Trade Practices for furnishing a incorrect / fake GST invoice as well as for failing to honour / provide the 1 year warranty,

b) the manufacturer is in Deficiency and Unfair Trade Practices for failing to honour / provide their 1 year warranty, and

c) the subject OP-3 Amazon is in Deficiency and Unfair Trade Practices for failing / refusing to comply, inter alia, with S/4 of The Consumer Protection (E-Commerce) Rules, 2020 of the CP Act, as well as other provisions for not providing easy, effective, and time-effort efficient customer service/resolution to the consumer, and also for their post-sales deletion/ removal of the seller pages from its e-portal. And that the subject OP-3 is in negligent Deficiency and Unfair Trade Practices for their failure to correct the Deficiency and Unfair Trade Practices indulged in by the seller as well as by the manufacturer.

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Advocate for the Complainant and OP-3 filed their Affidavit-in-Evidence and thereafter the written arguments were filed by the Complainant. Adv. P Agrawal filed his application for withdrawal of appearance for OP-3 and final arguments were advanced only by the Complainant.

We have heard the Oral Arguments advanced by the Complainant. We have perused the Complaint, Written Version, the Affidavit-in-Evidence of the Complainant and the OP-3 and taken into consideration the advanced Oral and Written Arguments of the Complainant upon which the following points arise for our determination and consideration :

a) Whether the Complaint is maintainable against OP-1, OP-2, OP-3 and OP-4?

Ans. Affirmative in the case of OP-1, OP-3 and OP-4

b) Whether there is deficiency of services and unfair trade practice on part of the OP-1, OP-3 and OP-4?

Ans. Affirmative in the case of OP-1, OP-3 and OP-4.

c) Whether OP-1, OP-3 and OP-4 conform and have acted in accordance with the provisions of The Consumer Protection (E-Commerce) Rules, 2020?

Ans. Partly Affirmative and Partly Negative.

d) Whether the Complainant is entitled for the reliefs prayed for?

Ans. Affirmative

Reason to Point (a)

The present complaint is about the transaction of sale of a product (laptop) by a seller herein known as Systech IT Solutions Pvt. Ltd. who is an independent third party (OP-1) of a make/manufactured by Lenovo India Pvt. Ltd. i.e. manufacturer/warranty provider (OP-4) which was purchased by a buyer (consumer/Complainant) through an entity operating the e-commerce marketplace known as Amazon Seller Services Pvt. Ltd. (OP-3/ASSPL). That in the present Complaint, according to the Complainant, the OP-1 (Systech IT Solutions Pvt. Ltd.) is the seller who sold the product in question in the said complaint (Lenovo Laptop) on Amazon.in costing an amount of Rs. 21,990/-

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bearing Order No. 402-6368333-3794722 and Order dated 20-02-2020 (Invoice Details : KA-BLR5-1101022225-1920. OP-2 is the e-commerce portal in knowledge /control of OP-1 (and hence through whom the OP-1 can be served) so have mentioned in the cause title as Systech IT Solutions Pvt. Ltd. through Amazon Seller Services Pvt. Ltd. OP-3 (Amazon Seller Services Pvt. Ltd) is a facilitator selling the products and services via said e-portal i.e. OP-3 manages the e-commerce marketplace (www.amazon.in) where independent third party sellers list their products for sale and OP-4 is the manufacturer/warranty provider in India for the product (laptop) purchased by the Complainant. The grievances of the Complainant is that upon purchase of a laptop covered with 1 year onsite warranty vide invoice dated 20-02-2020 from Systech IT Solutions Pvt. Ltd. through Amazon Seller Services Pvt. Ltd. (OP-3) on e- commerce marketplace (online platform) stopped working within the warranty period and when he tried to reach out to the online platform seller (Amazon-OP-

3) and also to the local service station to get it repaired under warranty did not receive a proper response from OP-3/ASSPL or local service station provider. On account of no proper response or service and considering his urgent requirement for a laptop for his work, he was left with no option but purchase another laptop/computer as a replacement/alternative arrangement. The argument placed on record in the Complaint is that Amazon Seller Services Pvt. Ltd. (OP-3) is not merely a portal but a seller as it facilitate sellers, collects the orders, delivers, collects return of goods/products on behalf of sellers, receives cash/online/digital payment for the sales that happens on the e-commerce platform. It also refunds money(ies) upon return of goods/services, mediates disputes and even assures guarantee against seller failures, etc. The contention of the Complainant is that he never said that there was a defect / manufacturing defect in the laptop but all he has stated is that his laptop stopped working within the warranty period and that the Complainant was not provided with the warranty service from the manufacturers (Lenovo India Pvt. Ltd.), or the seller (Systech IT Solutions Pvt. Ltd.), or the other "Amazon Fulfilled" of e- commerce seller /co-seller.

Upon perusal of the Complaint, documents annexed, the arguments advanced on admission of the Complaint, the Opposite Parties (OP-1,OP-2,OP-3 and OP-4) were duly notified vide the issuance of the notice(s) by Regd. AD along with the copy of Complaint and list of documents annexed/relied by the Complainant. The Roznama records that the Registered AD Card of the notice

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sent to OP-1 returned to the Office of the District Commission on 07-09-2021 with remark "Security Refused". An opportunity for filing of Written Version to contest the case was provided to all the Opposite Parties. It is seen that the Complainant moved an application to implead additional opposite party at 1a in cause title and file amended Complaint as the Complainant stated that upon investigations on internet of GST registration details (details attached with the application) revealed that the address of OP-1 i.e. Systech IT Solutions Pvt. Ltd. has been wrongly portrayed in their invoice/e-portal by the sellers and/or by Amazon and the address while checking the GST registration details of OP-1 is not the same as mentioned in the Tax Invoice issued to the Complainant. As the difference in address is placed on record in this complaint by the Complainant, it casts upon a responsibility upon the OP-3/ASSPL to take note of this and check to ensure that there is a no violation of provisions of The Consumer Protection (E-Commerce) Rules, 2020 by the multiple sellers (in the instant case the seller OP-1) and OP-4 and conforms & act in accordance with the provisions of the Rules under the Consumer Protection (E- Commerce) Rules, 2020.

The Opposite Parties i.e. OP-1, OP-2 and OP-4 was marked exparte vide Order dated 06-09-2021. This vividly confirms that the OP-1, OP-2 and OP-4 have not appeared before the Forum (District Commission) inspite of having received the notice upon admission of the complaint thus there has been conscious failure to file their written version against the allegations levelled against them in the consumer complaint. Thus the consumer complaint stands

undisputed/unchallenged by the OP-1, OP-2 and OP4 and find no reason to disbelieve the facts/submissions/contents of the Complaint of the Complainant as against the OP-1, OP-2 and OP4. The Honourable National Commission held a similar instance in its Order dated 2017 (4) CPR page 590 (NC) wherein it was observed that intention of non-filing of written version amounts to admission of allegation levelled in Complaint. The OP-1, OP-2 and OP4 have inadequately performed the services as contracted and hence there is deficiency in sale & services and unfair trade practices on part of OP-1 and OP-2 and OP-

4.

Adv. Mr. P. Agrawal was present for OP-3 who filed application on behalf of Amazon Seller Services Private Limited i.e OP- 3 ("ASSPL/answering respondent) for deletion of "Managing Director" added personally as OP-3 in the array of parties in the Complaint to make necessary amendments in the

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cause title of the Complaint stating that the Complainant has impleaded Amazon Seller Services Pvt Ltd through its Managing Director as the Opposite Party No 3 and Systech IT Solutions Pvt Ltd. through Amazon Seller Services Pvt. Ltd as Opposite Party No 2 to the instant complaint. The contention of the OP-3/ASSPL is that the Complainant has no privity of contract with the Managing Director of ASSPL. And that the e-commerce marketplace is operated by the OP-3 hence such the complaint against the Managing Director of ASSPL is not maintainable. However, it is observed there was no amendment carried out to that effect in the said complaint. Advocate for the O.P-3 filed the written version and it is observed from the contentions of the OP-3 that " in accordance with the FDI Policy, a marketplace is a recognized concept wherein an e-commerce entity operating a marketplace is required to act as a facilitator between a buyer and an independent third party seller of the goods and services and it is thus submitted that OP-3/ASSPL follows a marketplace based model of e-commerce and acts as an intermediary that only provides a neutral platform to allow sellers to interact with their buyers without exercising ownership over any goods, or indulging in the manufacture or "dealing in" any goods.

It is seen from the submission of the OP-3 that as per the provisions of the Consumer Protection Act, 2019, OP-3/ASSPL has been defined as an electronic service provider' which provides an e-commerce marketplace where independent third party sellers list and sell their product so buyers. Section 2(17) of the Consumer Protection Act, 2019 defines the term electronic service provider as follows:

"2. Definitions (17) "electronic service provider" means a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites.

From the above provision, it is evident that the term 'electronic service provider' includes an online/e-commerce marketplace like that of OP-3/ASSPL. Further, the term electronic service provider elaborates the role of an electronic service provider like that of OP-3/ASSPL as one which is providing (a) technologies or

(b) processes to enable a 'Product Seller' to engage in advertising or selling goods or services to a consumer. Thus it is clear that OP-3 is an electronic service provider to the consumer.

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It is observed that when the Complainant had addressed on Integrated Grievance Redress Mechanism (INGRAM)- on consumer helpline .gov.in his grievances details stated as "Had purchased Lenevo laptop for Rs. 21,990. It stopped working before expiry of warranty. Amazon was not helpful in resolving the issue. Purchased alternative desktop computer (from Amazon only) to do my everyday work. I sent Legal Notice but there is no resolution. Request that they take back the not-working laptop and refund the purchase price of Rs. 21.990."

to OP-3 on 13-07-2021 at 09: 00: 23 recorded with Grievance No. 2837124 to which the OP-3 as Grievance Company Remark dated 13-07-2021 at 23: 24: 54 stated as "Please note that all orders are subject to the Amazon return policy as found on http://amzn.to/2AO2ckF. The policy allows for return for specified merchandise for a full refund in case the same are returned within the time as stipulated thereunder. Accordingly, we are unable to process your request for return and refund since the same has been placed after the expiry of the return window, which expired on 1st March, 2020. In this regard, you are requested and required to contact the manufacturer's authorized service center and avail in warranty/ out of warranty repairs/service as provided. Further, it is submitted that our role is limited to that of an intermediary and we are not the seller/manufacturer of the products listed on our Website. The products listed on our Website are sold by independent third party sellers. In view of the above, the issue stands closed." This record shows that OP-3 addressed the Complaint of the Complainant and goes to prove that the OP-3 is in compliance with the Provision under Rule 4(4), 4(5), 4(7) of the provisions of Consumer Protection (E-Commerce) Rules, 2020. It is clear from this that the role to process the request for return and refund has been placed after the expiry of the return window, which expired on 1st March, 2020 in the present case and it was informed to the complainant to contact the manufacturer's authorized service center and avail in warranty/ out of warranty repairs/service as provided. Thus it shows that they have performed their duties of addressing the grievances. It can also been seen that as OP-3 being entity operating the e-commerce marketplace and thus under "Rule 5 : Liabilities of marketplace e-commerce entities. ……

(3) Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform: (a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for

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enabling consumers to make informed decisions at the pre-purchase stage:

Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution;". Considering this it is seen that there is a liability casted upon OP-3 to provide information of the seller for communication with the seller and thus this has not taken place and resulted in delay to redress the issue and which shows deficiency of services on part of OP-3.

It is the contentions of the OP-3 that it is only a facilitator and that all customers who transact or register an account on the e-commerce marketplace, i.e. amazon.in enter into a 'Conditions of Use' agreement with OP-3/ASSPL, where there is a clear understanding that all sale transactions are entered only by and between the independent third party sellers and the buyers and have relied upon the Clause 3 of the Conditions of Use which categorically affirms the legal position of OP-3/ASSPL as a facilitator, by stating that it merely operates an e- commerce marketplace to facilitate sale transactions entered by and between the buyer and the independent third party seller and further clarifies that all the transactions of sale undertaken by a buyer on the e-commerce marketplace are strictly bipartite agreements entered into between the buyer and the independent third party listed on the marketplace of OP-3/ASSPL emphasizing that OP-3/ASSPL is not the seller or manufacturer of the products listed on its e- commerce marketplace.

The OP-3 also relied upon the Clause 13 of the "Conditions of Use" which states OP-3/ASSPL is not liable for performance of the sale agreement executed by and between the buyer and the seller on the e-commerce marketplace. It is also the contention of OP-3 that it is an e-commerce platform and not a seller, manufacturer or warranty provider.

It is observed that though the role of OP-3/ASSPL is that of Intermediary in the present case but they play or has an integral part in the distribution chain. That in the present case the OP-3/ASSPL has not addressed or conveyed the grievances to the concerned seller and the local service station has failed to

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check and address the issue of the laptop which has caused loss, inconvenience and considerable delay on account of no proper intervention of the concerned party(ies) or for not conveying the issue to the appropriate party(ies) in the present case to address the grievances. However it cannot be denied that OP-3 has authorized the seller to offer its products for sale within the e-commerce marketplace thus providing the digital space necessary for the offer to the consumers.

It is the contention of the OP-3 that as per the Section 35 of the Consumer Protection Act. 2019, "A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum.... Therefore, as per the facts, no relationship of seller manufacturer or service provider existed between the Complainant and ASSPL/ Answering Respondent and the present Complaint is a case of misjoinder and ASSPL/ Answering Respondent is impleaded wrongfully as aparty to the case. The contention of the OP-3/ASSPL is that the Complainant does not fall within the definition of "consumer" qua OP-3/ASSPL under the Consumer Protection Act, 2019.

The OP-3/ASSPL also reiterated that they merely operates an e-commerce marketplace where independent third party sellers can list their products for sale and has no control over transactions by and between an independent third party seller and a buyer and does not receive proceeds of the sale. Therefore, the Complainant does not have the locus standi to file the present complaint and the present complaint is liable to be dismissed for misjoinder of unnecessary party i.e. OP-3/ASSPL.

It is observed from the contentions of the Complainant that the OP-3/ASSPL have wrongfully alleged that they have no role to play in the entire chain of events, other than offering an e-commerce platform to the sellers. But it is observed that the OP-3 themselves have stated in their preliminary submissions that they operates and manages the e-commerce marketplace:

i.e. www.amazon.in where independent third party sellers list their products for sale which clearly shows that they play a substantial role in the sale transaction process.

It is seen that the online market place Company earns revenue each time a consumer clicks and visits on its website. Moreover, the same is being done as per the terms and conditions between the online portal company and the sellers

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for a consideration. It is the duty of the intermediary that it should verify the bona fides of the seller, who sells the articles and products. Intermediaries are entities and provide service enabling delivery of online contents to the end user. But it can't be totally denied that for a consumer, the OP-3 is the point of contact or face of the sale transaction during the purchase process and medium for availing grievance redressal mechanism or address their grievances thus this cast a responsibility and accountability on the OP-3 to assist the consumer with all the information necessary for communication with the seller for effective dispute resolution and thus the complaint is maintainable against OP-3 That OP-1 (Systech IT Solutions Private Limited) is one of the independent third party sellers which have listed its products for sale on the e-commerce marketplace operated by OP-3/ASSPL and that against the Order in this case a tax invoice bearing no. BLR5- 2860 dated 20.02.2020 ("Invoice") was issued by the Independent Third Party Seller. i.e. Systech IT Solutions Pvt. Ltd. indicating its Income Tax Permanent Account Number (PAN) and GSTN against the Invoice as AARCS1741C and 29AARCS1741C129(Z9) respectively, clearly evidencing that the Product was sold to the Complainant by the Independent Third Party Seller i.e. Systech IT Solutions Pvt. Ltd. and that as the OP-1 is the 'Product Seller and in the instant case, the complaint is against the product sold by the OP-1 which has stopped working during the warranty period and the issue has remained unaddressed. That OP-1 being the seller is liable for the product delivery and product quality. That as per the contention of the OP-3 , the payment of consideration was made by the Complainant directly to the Independent Third Party Seller i.e. Systech IT Solutions Pvt Ltd. at the time of delivery. The contention of the OP-3 is that the product ordered by any buyer with any independent third party seller on the e-commerce marketplace of OP- 3/ASSPL is packed, sealed, shipped and delivered to the buyer by the independent third party seller alone with no role assigned to OP-3/ASSPL. That in the present case, the Independent Third Party Seller i.e. Systech IT Solutions Pvt. Ltd. delivered the Product to the Complainant. As per the preliminary objection of the OP-3, the contract of sale of the Product was strictly a bipartite contract and was exclusively entered into by and between the Complainant and the Independent Third-Party Seller. i.e. Systech IT Solutions Pvt. Ltd only. In view of the above reasons the complaint against OP-1 is maintainable. However, it is observed from the contention of the Complainant that as the OP- 1 and OP- 2 are the same entities and that the OP-1 is held liable being the seller who sold the product in question, the OP-2 is absolved from liabilities.

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Taking into consideration about OP-4, it is seen that OP-4 who is the Manufacturer and Warranty provider i.e Lenovo India Private Limited is liable for the manufacturing defect and being the manufacturer has to ensure about the product quality and performance. In the instant case, when the product delivered to the Complainant stopped working within the warranty period, pursuant to which he allegedly contacted the local service station of the manufacture where his grievances were not addressed satisfactorily. It is observed from the submission by the OP-3 that the warranty with respect to the Product was provided by the Manufacturer ie. Lenovo India Private Limited (Opposite Party No 4). Therefore, the liability to rectify the defects in the Product can only be fastened on the Manufacturer of the Product ie. Lenovo India Private Limited (Opposite Party No.4) through its authorised service centre. It is also observed that the Complainant has not relied upon the warranty card and it's terms and conditions, has not made any averments explaining what defects arose in the product but the contention of the Complainant is that an expert opinion should be called for in such cases as a mandatory requirement where allegations relating to defects/ manufacturing defects are alleged but in his case it was that the laptop was not working.

From the aforesaid reason it can be seen that the complaint against OP-1 (Systech IT Solutions Pvt. Ltd.), OP-3 (ASSPL), OP-4 (Lenovo India Private Limited ) are maintainable as OP-1 is the seller, OP-3 is the electronic service provider and OP-4 is the manufacturer. Thus in view of the above reasons, the Complaint is maintainable against OP-1, OP-3, and OP-4 and the OP-2 is absolved from his liabilities as OP-1 and OP-2 is same entities. Reason to point (b)

It is seen from the submission of the Complainant that not providing easy, effective, and time-effort efficient service to the consumer, post-sales deletion / removal of the seller pages from the e- portal is Deficiency in Service and also amounts to Unfair Trade Practice. That the deletion or removal of the seller pages from the e portal amounts to deficiency of services and unfair trade practice on part of OP-1 and OP-3 and is in violation of the provision of the Consumer Protection ( E-commerce) Rules, 2020. It is also seen that as per the Rule 6 (4) (b) of the Consumer Protection (E-Commerce) Rules, 2020 which states the Rule 4 " Duties of sellers on marketplace…….(4) Any seller offering

27

goods or services through a marketplace e-commerce entity shall: ……. (b) appoint a grievance officer for consumer grievance redressal and ensure that the grievance officer acknowledges the receipt of any consumer complaint within forty-eight hours and redresses the complaint within one month from the date of receipt of the complaint;. It is seen from the complaint that the seller( Systech IT Solutions Pvt. Ltd.) have not addressed the grievances of the Complainant and as such post-sales deletion / removal of the seller pages from the e- portal will not enable the Complainant to address his grievances and such an act on part of the Seller amounts to Unfair Trade Practices.

It is observed that when the Complainant had addressed on Integrated Grievance Redress Mechanism (INGRAM)- on consumer helpline .gov.in his grievances details stated as "Had purchased Lenevo laptop for Rs. 21,990. It stopped working before expiry of warranty. Amazon was not helpful in resolving the issue. Purchased alternative desktop computer (from Amazon only) to do my everyday work. I sent Legal Notice but there is no resolution. Request that they take back the not-working laptop and refund the purchase price of Rs. 21.990."

to OP-3 on 13-07-2021 at 09: 00: 23 recorded with Grievance No. 2837124 to which the OP-3 as Grievance Company Remark dated 13-07-2021 at 23: 24: 54 stated as "Please note that all orders are subject to the Amazon return policy as found on http://amzn.to/2AO2ckF. The policy allows for return for specified merchandise for a full refund in case the same are returned within the time as stipulated thereunder. Accordingly, we are unable to process your request for return and refund since the same has been placed after the expiry of the return window, which expired on 1st March, 2020. In this regard, you are requested and required to contact the manufacturer's authorized service center and avail in warranty/ out of warranty repairs/service as provided. Further, it is submitted that our role is limited to that of an intermediary and we are not the seller/manufacturer of the products listed on our Website. The products listed on our Website are sold by independent third party sellers. In view of the above, the issue stands closed." This record shows that OP-3 addressed the Complaint of the Complainant and goes to prove that the OP-3 is in compliance with the Provision under Rule 4(4), 4(5), 4(7) of the provisions of Consumer Protection (E-Commerce) Rules, 2020. It is clear from this that the role to process the request for return and refund has been placed after the expiry of the return window, which expired on 1st March, 2020 in the present case and it was informed to the complainant to contact the manufacturer's authorized service center and avail in warranty/ out of warranty repairs/service as provided. Thus it

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shows that they have performed their duties of addressing the grievances. It can also been seen that as OP-3 being entity operating the e-commerce marketplace and thus under "Rule 5 : Liabilities of marketplace e-commerce entities. ……

(3) Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform: (a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage:

Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution;". Considering this it is seen that there is a liability casted upon OP-3 to provide information of the seller for communication with the seller and thus this has not taken place and resulted in delay to redress the issue and which shows deficiency of services on part of OP-3.

It is observed that OP-3 being an entity operating the e-commerce marketplace www.amazon.in and involved in operation and managing the e- commerce marketplace shall function in strict adherence to the provisions of The Consumer Protection (E-Commerce) Rules, 2020, and ensure that the multiple sellers is in compliance of their duties on the marketplace under the Consumer Protection (E-Commerce) Rules, 2020.

Also it is seen from the contention of the Complainant that

a) the seller OP is in Deficiency and Unfair Trade Practices for furnishing a incorrect / fake GST invoice as well as for failing to honour / provide the 1 year warranty,

b) the manufacturer is in Deficiency and Unfair Trade Practices for failing to honour / provide their 1 year warranty, and

c) the subject OP-3 Amazon is in Deficiency and Unfair Trade Practices for failing / refusing to comply, inter alia, with S/4 of The Consumer Protection (E-Commerce) Rules, 2020 of the CP Act, as well as other provisions for not providing easy, effective, and time-effort efficient

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customer service/resolution to the consumer, and also for their post-sales deletion/ removal of the seller pages from its e-portal. And that the subject OP-3 is in negligent Deficiency and Unfair Trade Practices for their failure to correct the Deficiency and Unfair Trade Practices indulged in by the seller as well as by the manufacturer. Thus it is clearly seen that there is a deficiency in services and unfair trade practices by OP-1, OP-3, and OP-4.

Reason to point (c)

Upon taking into consideration of "The Consumer Protection (E-Commerce) Rules, 2020 which provides the scope and applicability of these rules to (a) all goods and services bought or sold over digital or electronic network including digital products; (b) all models of e-commerce, including marketplace and inventory models of e-commerce; (c) all e-commerce retail, including multi- channel single brand retailers and single brand retailers in single or multiple formats; and (d) all forms of unfair trade practices across all models of e- commerce. The Rules also apply to an e-commerce entity which is not established in India, but systematically offers goods or services to consumers in India.

As stated by the OP-3/ASSPL that they are merely acting as a shopping platform and has no connection with manufacturing, repairing or any other services in relation to the product. In fact, in the eyes of the consumer, OP- 3/ASSPL is the real seller of the product, the real player of the sales process and, therefore, since it is a fundamental role (plays an integral role), full liability cannot be excluded in case of products sold /services provided on its e- commerce marketplace. It was further observed that unless the person who visits the site agrees to the terms and conditions of the website, the transaction cannot proceed.

That the deletion or removal of the seller pages from the e portal amounts to deficiency of services and unfair trade practice on part of OP-1 and OP-3 and is in violation of the provision of the consumer protection ( E-commerce) Rules, 2020. It is also seen that as per the Rule 6 (4) (b) of the Consumer Protection (E-Commerce) Rules, 2020 which states the Rule 4 " Duties of sellers on marketplace…….(4) Any seller offering goods or services through a marketplace e-commerce entity shall: ……. (b) appoint a grievance officer for consumer grievance redressal and ensure that the grievance officer

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acknowledges the receipt of any consumer complaint within forty-eight hours and redresses the complaint within one month from the date of receipt of the complaint;. It is seen from the complaint that the seller( Systech IT Solutions Pvt. Ltd.) have not addressed the grievances of the Complainant and as such post-sales deletion / removal of the seller pages from the e- portal will not enable the Complainant to address his grievances and such an act on part of the Seller amounts to Unfair Trade Practices.

It is seen that when the Complainant had addressed on Integrated Grievance Redress Mechanism (INGRAM)- on consumer helpline .gov.in his grievances details to OP-3 on 13-07-2021 at 09: 00: 23 recorded with Grievance No. 2837124 to which the OP-3 as Grievance Company gave a Remark .This record shows that OP-3 addressed the Complaint of the Complainant and goes to prove that the OP-3 is in compliance with the Provision under Rule 4(4), 4(5), 4(7) of the provisions of Consumer Protection (E-Commerce) Rules, 2020. It is clear from this that the role to process the request for return and refund has been placed after the expiry of the return window, which expired on 1st March, 2020 in the present case and it was informed to the complainant to contact the manufacturer's authorized service center and avail in warranty/ out of warranty repairs/service as provided. Thus it shows that they have performed their duties of addressing the grievances. It can also been seen that as OP-3 being entity operating the e-commerce marketplace and thus under "Rule 5 : Liabilities of marketplace e-commerce entities. …… (3) Every marketplace e-commerce entity shall provide the following information in a clear and accessible manner, displayed prominently to its users at the appropriate place on its platform: (a) details about the sellers offering goods and services, including the name of their business, whether registered or not, their geographic address, customer care number, any rating or other aggregated feedback about such seller, and any other information necessary for enabling consumers to make informed decisions at the pre-purchase stage: Provided that a marketplace e-commerce entity shall, on a request in writing made by a consumer after the purchase of any goods or services on its platform by such consumer, provide him with information regarding the seller from which such consumer has made such purchase, including the principal geographic address of its headquarters and all branches, name and details of its website, its email address and any other information necessary for communication with the seller for effective dispute resolution;". Considering this it is seen that there is a liability casted upon OP- 3 to provide information of the seller for communication with the seller and thus

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this has not taken place and resulted in delay to redress the issue and which shows deficiency of services on part of OP-3.

And that OP-4 the manufacturer is in Deficiency and Unfair Trade Practices for failing to honour / provide their 1 year warranty and in the instant case, when the product delivered to the Complainant stopped working within the warranty period, pursuant to which the Complainant allegedly contacted the local service station of the manufacture where his grievances were not addressed satisfactorily.

It is observed from these that OP-1, OP-3 and OP-4 have not acted in accordance with all of the provisions of The Consumer Protection (E- Commerce) Rules, 2020 except that a few provisions have been complied by the OP-3.

Reason to point (d)

Upon perusal of the complaint, list of documents annexed, the contentions in the written version of the OP-3, Affidavit-in-Evidence of the Complainant and OP- 3, Written Arguments and Advanced Oral Arguments by the Complainant and upon which it can be observed from the contentions of the complainant and OP- 3 that the Complainant have spelled the deficiency of service on part of the OP- 1, OP-3, and OP-4 in the averments of the complaint and non compliance of certain provisions of the Consumer Protection (E-Commerce) Rules, 2020. However, it is also observed that due to the aforesaid act of the OP-1, OP-3 and OP-4 as mentioned in the reason to point (a), (b) and (c), it clearly shows that there is unfair Trade Practice on part of OP-1, OP-3 and OP-4 and deficiency of services on part of OP-1, OP-3 and OP-4, and that the deficiency of services on their part has caused undue delay to address the issue related to the laptop of the Complainant. This has also led the Complainant to spend money to purchase another laptop and further caused unwarranted mental, physical, and financial harassment.

Hence, upon consideration of the averred facts in the Complaint and documents on record, we derive an opinion that OP-2 is discharged from the liability for reasons recorded under point (a). On the basis of the aforesaid reasoning on point (a), (b), (c) and point (d) it has been clearly established that there is an unfair trade Practice and deficiency in services on part of OP-1, OP-3 and OP-4

and thus pass the following Order :-

32

ORDER

The Complaint is partly allowed with the following reliefs.

1. The OP-2 is absolved from the liabilities as OP-1 and OP-2 is the same entity and as such OP-1 is made liable.

2. The OP-1, OP-3 and OP-4 are directed to conform and act in accordance with the provisions of the Consumer Protection (E- Commerce) Rules, 2020.

3. The OP-4 is hereby directed to ascertain the reason for non- functioning/working of the Laptop and accordingly repair or replace & resolve the issue free of cost within 30 days from the receipt of the copy of this Order to the Complainant.

4. The OP-1, OP-3 and OP-4 is directed to jointly and severally pay compensation of Rs. 30,000/- to the complainant for the delay caused in resolving the issue of the laptop within the period of warranty causing unwarranted mental, physical and financial harassment and which shall include the cost of litigation.

5. In case said amount of Rs. 30,000/- (Rupees Thirty Thousand only) towards compensation is not paid to the Complainants after the Appeal period, the same will carry an interest @ 9% p.a. till final payment.

Pronounced in Open Court.

Proceedings closed.

Ms. Bela N. Naik,

President

Mr. Auroliano De Oliveira

Member

Ms. Rejitha Rajan,

Member