State Consumer Disputes Redressal Commission
Ebay India Pvt. Ltd. vs Parvesh Garg on 1 June, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1002 of 2014
Date of institution: 17.07.2014
Date of decision : 01.06.2015
E Bay India Pvt. Ltd., through its authorized representative, 14th floor, North
Block, R-Tech Park, Western Express Highway, Goregaon (E), Mumbai
400063
.....Appellant/Opposite Party No. 1
Versus
Mr. Parvesh Garg, Rohit Karyana Store, Milk Plant Road, Near Hazi Ratta
Gurudwara, Bathinda
.....Respondent/complainant
First Appeal against the order dated 16.04.2014
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Pankaj Nanda, Advocate
For the respondent : Sh. Ashish Gupta, Advocate
GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) Order This appeal has been preferred by appellant/Opposite Party No. 1 (hereinafter referred as 'OP No. 1') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 16.04.2014 in C.C. No. 536 of 06.12.2013 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short the 'District Forum') vide which the complaint filed by the respondent/complainant (hereinafter referred as 'complainant') was allowed with the directions to First Appeal No.1002 of 2014 2 OPs No. 1-3 to make arrangement to collect the mobile hand set alongwith accessories from the complainant and to make cash payment of Rs. 15,699/- alongwith compensation of Rs. 10,000/-. The order was to be complied within 45 days from the date of receipt of copy of the order, failing which it will carry interest @ 9% per annum till realization whereas complaint against OP No. 4 was dismissed.
2. A consumer complaint was filed by the complainant against the OPs on the allegations that OP No. 1 was India's most popular online shopping mall providing online purchasing of products like Cell Phone, Mobile, Cameras, Computers etc of various companies. The complainant was in need of mobile handset for his personal use and also allured by the tall claims made by OP No. 1, he opted to purchase mobile phone Samsung Galaxy S2-GT-19100 manufactured by OP No. 2 and marketed by OP No. 3 and delivered by Op O. 4. Accordingly he placed an online order on 04.10.2010 which was confirmed by OP No. 1 vide PaisaPay ID 34739521695 on the same day. As per the terms of the OPs, the consumer has to pay full payment in advance at the time of placing the order and accordingly he made the entire payment of Rs. 15,699/- if on the receipt of the product, the consumer does not satisfied, then the consumer had the choice to replace the mobile hand set with new one or to get 100% refund of the amount paid in advance. OPs had assured that the ordered item shall be received by the complainant on or before 15.10.2013. OP No. 1further advised that if the ordered item is not received by the complainant on or before 15.10.2013, he can request for the refund of the amount. The complainant had not received the ordered item upto 15.10.2013. The mobile hand set bearing serial/IMEI No. 357470045937798 was sent through OP No. 4 to the complainant vide invoice No. 3510/1925060 dated 08.10.2013 First Appeal No.1002 of 2014 3 for a sum of Rs. 15,699/- was received on 17.10.2013. It was further alleged that when the parcel was opened, it was found that there were scratches on the mobile hand set and the battery also seemed not to be new one and some slips/stickers were put on the said mobile hand set. Accordingly, he sent a mail to OP No. 1 on 17.10.2013 and protested for the delivery of old and defective hand set and claimed the refund of the amount of Rs. 15,699/-. OP No. 1 opened the claim of the complainant under claim ID 305440. Then he received the mail from OP No. 3 to send back the aforesaid mobile hand set to OP NO. 4. Thereafter he received another mail from OP No. 1 who wanted proof regarding the claim of the complainant on 19.10.2013. The complainant sent the scanned photographs of the aforesaid mobile handset to OP NO. 1. However, to the utter surprise of the complainant, he received another mail from OP No. 1 on 21.10.2013 whereby he was required to confirm the receipt of ordered product. He again contacted OP NO. 1 and protested for the receipt of aforesaid mail to which they conveyed the complainant that they shall check their record and shall take further steps in the matter accordingly. Thereafter, he received another e-mail on 21.10.2013 from OP No. 1 whereby they directed the complainant to re-ship the consignment to the seller and to provide the details of tracking. He received another mail from OP No. 3 on 22.10.2013 whereby they confirmed the approval of refund of the amount and confirmed that the complainant will receive the refund amount very soon and said the complainant to send the mobile hand set to OP No. 3 through OP No. 4 but the complainant was not clear to whom the said order was required to be sent back and on which address. Then he received another telephonic call from the OPs on their numbers 0124-6777005 and toll free number 18002093229 to send back the aforesaid mobile hand set. He tried to get the First Appeal No.1002 of 2014 4 instructions to whom the said hand set was required to be sent back, but no instructions were issued to the complainant by the OPs. OP No. 3 vide mail dated 22.10.2013 confirmed the approval of the refund of the full amount to the complainant but the complainant did not receive any refund amount. He received another mail from OP No. 1 on 24.10.2013 whereby they demanded proof of return shipment without confirming the name and address of the addressee and ultimately the claim of the complainant was closed. Then the complainant vide mail dated 28.11.2013 to confirm the mail and address to whom the hand set was to be sent back but they again enquired from the complainant to provide return shipment proof. The complainant had been trying from post to pillar to get the amount back but to no action. He was still ready to return the mobile hand set and the said mobile hand set was still in the same condition, but conduct of the OPs in sending the old and defective mobile hand set and not returning the amount as per their terms amounted to deficiency in service and unfair trade practice. Hence the complaint was filed with the directions to the OPs to refund the value of the mobile hand set of Rs. 15,699/- alongwith interest @ 18% p.a., Rs. 50,000/- as compensation and Rs. 11,000/- as litigation expenses.
3. The complaint was contested by the OPs. OP No.1 took preliminary objections in its written reply stating that the claim was highly exaggerated. The sale price of the mobile set was INR 15,699 whereas compensation of Rs. 76,699/- has been demanded. The business of OP No. 1 is to provide an online market place through its website www.ebay.in from where the buyers and sellers directly interact for sale-purchase of various items as defined under the Information Technology Act, 2000 as amended from time to time and his role was to facilitate other person for receiving, storing or First Appeal No.1002 of 2014 5 transmitting record/information, therefore, the status of OP No. 1 is that of that of 'Intermediary' and under section 79 of the Information Technology Act, 2000 no liability can be fastened upon OP No. 1. The contract of sale of items was only between the registered seller and the winning bidder/buyer. OP No. 1 provided the terms and conditions for registering the claim for replacement/refund of product. The service to the buyers/sellers is a gratuitous service. The claim redressal process of OP No. 1 follows with each of its buyer and seller is a two step process under which firstly the claim has to be registered with OP No. 1, he was to process it and look into the genuineness and validity of such claim. No consideration was taken by OP No. 1 from the complainant at the time of transaction in question, therefore, there was no relationship of consumer/service provider between the complainant and OP No. 1.
4. In the primary submission, it was submitted that the complainant failed to return the item received within a period of 30 days as per their procedure. Clause 6 of the User Agreement also excludes the involvement of OP NO. 1.
5. On merits, the preliminary objections taken above were reiterated. It was further submitted that OP No. 1 received the said product on 12.10.2013. On 16.10.2013, the complainant raised the claim on the website of OP No. 1 complaining against the said product. The submission of the complainant that he received the said product on 17.10.2013 was false. OP No. 1 had contacted the complainant and asked for proof of his claim. The complainant had failed to file any document depicting the defective product in question. Even the phone calls and e-mails sent to the complainant were a part of gratuitous service. During the complaint the product was not returned, therefore, his claim was closed, therefore, there was no deficiency First Appeal No.1002 of 2014 6 in service on the part of OP No. 1. It was submitted that the complaint was without merit and it be dismissed.
6. OP No. 2 in its written reply took the preliminary objections that District Forum did not have any territorial jurisdiction and under section 11 (2) (b) of CP Act as no permission was sought from the District Forum before institution of the complaint. The complaint was false and frivolous to the knowledge of the complainant, therefore, liable to be dismissed under section 26 of the Act. The complainant had concealed the material and necessary information that the obligation of this OP was to set right the mobile hand set by repairing or replacing the defective parts only. The performance of the mobile phone depends upon the handling of the product and downloading of various mobile applications, games and virus threat from internet usage. No ground was made out in favour of the complainant for replacement of the mobile hand set because he has not alleged any specific manufacturing defect and inferior quality of the specific part and there was no expert evidence to prove the defect. There was no deficiency in services on the part of this OP and that the complainant had not annexed the warranty card bearing stamp of seller and as per exclusion clause No. 1 printed at the back of warranty card, if the warranty card was not filled up and mailed back/submitted to the nearest authorized service centre of the complaint within two weeks of the purchase, the warranty condition in such circumstances were not applicable. On merits, it was denied for want of knowledge that the complainant had placed online order for the purchase of mobile phone Samsung Galaxy S-2 GT-19100 and made the payment of Rs. 15699/-. They were not in the knowledge that OP No. 1 had assured the complainant that the ordered item shall be received on or before 15.10.2013 and in case, it was not received then he had right to get the refund. It was First Appeal No.1002 of 2014 7 denied for want of knowledge that he had no knowledge whether the hand set was received through OP No. 4 on 17.10.2013. It was also denied that the complainant sent the email on 17.10.2013 and protested for the delivery of old and defective product and claimed refund of Rs. 15699/-. It was also denied that the complainant received mail from OP No. 3 to send back the aforesaid hand set to OP NO. 4. It was also denied for want of knowledge that OP No. 4 sought proof regarding claim of the complainant or that the complainant had scanned photographs to OP No. 1. Other facts as stated in the complaint were also denied for want of knowledge. It was denied that the complainant had suffered any mental tension, agony, loss on account of non refund of the amount of hand set as alleged by him. The complainant against this OP was without merit and it be dismissed.
7. OPs No. 3 & 4 were proceeded ex-parte.
8. Parties adduced evidence in support of their contentions. Complainant tendered into evidence his affidavit Ex. C-1 and documents Ex. C-2 photocopy of letter, Ex. C-3 photocopy of declaration, Ex. C-4 to Ex. C-11 photocopies of messages, Ex. C-12 photocopies of photographs, Ex. C-13 to Ex. C-17 photocopy of messages, Ex. C-18 to Ex. C-19 photocopy of emails, Ex. C-20 affidavit of Parvesh Garg, Ex. C-21 photocopy of account statement, Ex. C-22 photocopy of email, Ex. C-23 photocopy of pay rules and policies containing page No. 1 to 8, Ex. C-24 photocopy of how fees work containing page No. 1 to 4 and closed the evidence. On the other hand OP No. 1 tendered into evidence Ex. OP-1/1 affidavit of Ashish Kumar, Ex. OP-1/2 photocopy of User Agreement, Ex. OP-1/3 photocopy of I.D. Guarantee, Ex. OP-1/4 photocopy of gazette of India extraordinary page 21 and closed the evidence. OP No. 2 tendered into evidence Ex. OP-2/1 First Appeal No.1002 of 2014 8 affidavit of Shriniwas Joshi, Sr. Manager dated 20.02.2014 Ex. OP-2/2, photocopy of warranty condition Ex. OP-2/2 and closed the evidence.
9. After going through the allegations as alleged in the complaint, written reply filed by OPs, evidence and documents on the record, the learned District Forum accepted the complaint in terms as stated above.
10. Aggrieved with the impugned order, the present appeal has been filed by the OP No. 1/appellant.
11. We have heard the arguments of the learned counsel for the parties and have perused the record.
12. It has been contended by the counsel for the appellant/OP No. 1 that the District Forum has failed to appreciate the contentions raised by the complainant in the complaint. The District Forum has also failed to accept the intermediary status of the OP No. 1 as OP No. 1 is only an online market place and as per the Information Technology Act 2000, it is virtually a platform that merely facilitates independent buyers and sellers for their respective transactions, whereas the appellant had no control on the actual delivery/condition of the products returned by the seller. Therefore, the penalty was wrongly fixed upon OP No. 1 alongwith OPs No. 2 and 3.
13. In case, we go through the facts of the case, the complainant had opted to purchase online mobile phone Samsung Galaxy S2-GT-19100 which is being run by OP No. 1. It is alleged that OP No. 2 is the manufacturer and marketed this product. When the order was placed and the payment was made to OP No. 1 by the complainant, he received the product on 17.10.2013 but it was not a new product and it was a defective product. Accordingly, the complaint was allowed against OPs No. 1 to 3. OPs No. 2 & 3 have not come up with the appeal, certainly they are manufacturer and the sellers of the product. We are here to determine the liability of OP No. 1 First Appeal No.1002 of 2014 9 vis-a-vis OPs No. 2 & 3. The most of the correspondence of the complainant was with OP No. 1. The payment was made by the complainant to OP No. 1. The documents placed on the record by the complainant are his own affidavit Ex. C-1, Ex. C-2 is the invoice issued in favour of the complainant issued by OP NO. 3, Ex. C-3 is the declaration which was given at the time of sending the hand set, Ex. C-4 is the e-mail vide which the complainant had sent his request to OP No. 1 stating that he has got the product but it was not in the same condition as shown in detail and he wanted his money back after taking back the product gave his money back. Ex. C-5 is the email by OP No. 1 to the complainant in which his PaisaPay ID 34739521695 number was given and the order was confirmed and once the order is shipped, they will send an e-mail with the courier name and the tracking number, Ex. C-6 is another e-mail from OP No. 1 to the complainant wherein it has been stated that the order should reach latest by 15.10.2013 and they may track shipment through Paisapay or directly on the courier site and in case he had not received the item by 15.10.2013 he can request for refund of the amount, Ex. C-7 is again an e-mail from OP No. 1 vide which it was to be confirmed whether the complainant had received the product , Ex. C-8 is another e-mail vide which it was mentioned that the seller was notified about the claim and they will shortly update him on the status. Ex. C-9 is another e-mail vide which the complainant was asked to send the parcel on the following address:-
Anik Sarkar, Manisha Apartments (Top floor) Near athletic club, 3 No Chandigarh, MadhyaMarg Kolkatta-700130, Ex. C-10 is another e-mail vide which the complainant was asked to provide proof that item was not as described, Ex. C-13 is the mail vide which it was asked that in case the item is not as described during the purchase, then visit PaisaPay Resolution First Appeal No.1002 of 2014 10 Centre. Ex. C-14 is another mail vide which the purchaser was asked to return shipment, Ex. C-15 is mail vide which the purchaser was asked to send the phone back and he will get refund of full amount, vide Ex. C-16 the purchaser was asked to provide proof of Return Shipment, Ex. C-17 is another mail vide which the claim was closed as the purchaser failed to give the proof of return shipment, Ex. C-18 the mail vide which the complainant made a request to OP No. 1 to refund the amount. In view of this correspondence, it is clear that OP No. 1 has admitted that after having consultation with the seller, the issue was resolved and it was resolved to refund the purchase amount to the purchaser/complainant subject to condition that he will give the proof of return shipment. In the complaint, the complainant has contended that the complainant was not given the information to whom the shipment was to be addressed. According to Ex. C-9 it was to send back to the following address:-
Anik Sarkar, Manisha Apartments (Top floor) Near athletic club, 3 No Chandigarh, MadhyaMarg Kolkatta-700130 However in the complaint the address of seller is a different address, therefore, the complainant had not sent back the parcel, so that it may not be sent to wrong person. Otherwise, in the complaint, it has been contended by the complainant that the said mobile hand set is still lying with him in the same condition and he is ready to return the same subject to condition that the amount so paid is returned to him. The mobile hand set was not new one as promised, that is the reason that the OPs had settled to refund the money after taking back the hand set. Now the question arises what was the First Appeal No.1002 of 2014 11 liability of OP No. 1. As stated above, OPs No. 2 & 3 have not filed any appeal which shows that they are admitting their liability. The contention of OP No. 1 is that his role is just as an intermediary and he had not sold any product and in case there was any defect in the product then he was not liable for the same. However the entire correspondence on the record is between the complainant and OP No. 1 what was the understanding between OP No. 1 and OPs No. 2 & 3 has not come up on the record. The agreement vide which the online services were provided by OP No. 1 on behalf of OPs No. 2 & 3 have not come on the record to fix the liability of OP No. 1. The District Forum has not fixed the liability of OP No. 1 exclusively but it is joint and severally. Counsel of OP No. 1 has relied upon the definition of intermediary as given in the Information Technology Act, 2000 which is reproduced as under:-
"Intermediary" with respect to any particular electronic message means any person who on behalf of another person receives stores and transmits that message or provides any service with respect to that message;
But we have to see what was the role of OP No. 1. As the role of intermediary is just to pass the electronic message, but here the role of OP No. 1 is more than that. It is not restricted to online shopping but he has taken the entire case on behalf of manufacturer and seller with the purchaser. Therefore, the role of OP No. 1 cannot be restricted only to be intermediary. Even the warranty has been placed on the record as Ex. OP-1/3 according to which in case if the purchaser is not satisfied with the product, then he has an option to report his concern by using an online request form to register a dispute within 30 days of item delivery if the item does not concern as per the order. In the present case, the complaint was lodged within the statutory First Appeal No.1002 of 2014 12 period as per the warranty. It cannot be said that OP No. 1 had no role to play, therefore, the District Forum has rightly observed the deficiency in service on the part of OPs No. 1 to 3. So, the findings so recorded by District Forum are correct and we affirm the same.
14. In view of the above discussion, we are of the opinion that there is no merit in the appeal and the same is hereby dismissed. The order of the District Forum is correct and the same is upheld.
15. The appellant had deposited amount of Rs. 12,850/- with this Commission at the time of filing the appeal. The amount of Rs. 12,850/- with interest accrued thereon, if any, be remitted by the registry to respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the date of sending the certified copies of the order to the parties subject to stay, if any, by the higher Fora/Court.
16. Remaining amount shall be paid by the appellant and OPs No. 2&3 to respondent/complainant within 30 days from the receipt of the copy of the order.
17. The arguments in this appeal were heard on 18.05.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (MRS. SURINDER PAL KAUR) MEMBER June 1, 2015.
Rupinder First Appeal No.1002 of 2014 13