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7. The District Forum, after going through the record and hearing learned counsel on their behalf, partly accepted the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties

8. I have heard learned counsel for the appellant and Sh. Vishwajit Tapia respondent no.1/complainant and have carefully gone through the record of the case.

9. Ld. counsel for the appellant contended that the District Forum failed to appreciate the evidence, terms and condition produced by respondent and wrongly and illegally decided the complaint, which is beyond its jurisdiction, as per condition 22 of the "conditions of Use" of the website, as per which the parties have vested exclusive jurisdiction to the Courts at Delhi. He further argued that complainant made online purchase and the delivery was received by his mother/brother. Complainant got checked the said mobile from Motorolla service centre, but he did not place on the record any evidence to show that a job card was issued to him regarding any defect in the said mobile set. There is also no evidence to the effect that any communication was made to OP no.1/appellant in the form of any e-mail or otherwise and no feed back was received by the appellant. The complainant could have given his feed back under 15 days return window, but he did not do so. It was further contended that the complainant went to the service centre of respondent no.2/OP no.2 for the replacement of the charger and not for the mobile phone. He further contended that appellant is neither a manufacturer nor a seller of the product in question. The said product was sold by an independent third party seller i.e. 'Gizmo Bazaar', which has not even been impleaded as a party. He further argued that the said mobile set is still lying with the complainant and he did not deposit the same with OP no.1. The said mobile set was purchased by the complainant out of his own will and choice and the appellant acted as an 'intermediary' only, as such, appellant is not liable on any count. The appellant is the owner and operates the website www.amazon.in and the mobile application called 'Amazon', which is an online shopping website/application based upon the "marketplace model". The appellant website is only a platform where independent sellers sell their products to independent buyers without any influence of the appellant. The appellant has been granted permission to conduct business as a marketplace based model of e-commerce specifically stipulated, in Schedule 1 at entry 16.2.3 of the Regulation. The District Forum failed to appreciate the above fact and that the appellant cannot have control regulation and liability over the standard, quality and performance of the product. Averring on similar lines as in the appeal, the counsel prayed for dismissal of the complaint.

14. Section 79 of the Information and Technology Act, 2000, is a safe harbour provision subject to restrictions imposed in sub- sections (2) and (3) thereof. If an online intermediary has specific knowledge or has reasonable belief based on information supplied by the right holder about the contents and the intermediary fails to act despite such knowledge, online intermediary can be held liable for infringement. To prove actual knowledge obviously is very difficult. E-commerce portal is required to identify and report infringement. Suppose the HP informs an intermediary that it does not manufacture and sell mobile covers, thus, all products on its portal are counterfeit and must be removed. On that basis e- commerce portal/intermediary can insist that it must provide specified URL to act upon the request. Internet Protocol (in short, "I.P.") owner will need to put resources to constantly monitor online space and to report to the intermediary seeking its removal. Amazon has become a place where we can get everything quickly and have it delivered in 2 days. The products are coming from third-party sellers i.e. products sold on Amazon marketplace merchants. Amazon marketplace serves as a sort of newspaper classified advertisements section, connecting potential consumers with the sellers in an efficient, modern and in a streamlined manner. Amazon places products on its shelves to the stream of commerce. Now a days, the brands are warning consumers against purchasing products online.

15. Admittedly, users carry out activities on market place platform of the portal. Thus, they play an active role in facilitating the infringement conduct. Apparently, online marketplace operator portals appear to be responsible for infringements carried out by the users on their platform. It is a very crucial and debatable issue. The liability and exemption of the e-commerce portal acting as hosting service provider, in relation to posting of information provided by the recipients of its services, needs to be examined in the light of statutory provisions and the facts of present appeal arising from the consumer complaint. The following point arises for consideration:-

18. The definition of "delivery" has been given in Sub-Section (2) of Section 2 of the Sale of Goods Act, 1930, which means voluntary transfer of possession from one person to another. The liability of marketplace e-commerce Company arises from the concept of secondary/contributory infringement. In case in hand Amazon facilitated infringement by OP no 2-Seller and provided a space for sale of infringing product. Amazon had actual or constructive knowledge of such infringement and has reason to believe that an infringement had occurred at its place as the product was packed in its box and delivered by it to the complainant. As such, it is also personally and jointly liable. Amazon is not a neutral or passive, instead it optimizes, promotes and offers for sale and its duties are in the nature of pro-activeness.