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State Consumer Disputes Redressal Commission

Ebay India Private Ltd. vs Pushkar Pradeep Deshpande on 5 May, 2016

                                   1                   F.A.No.:660/2014




                                Date of filing :10.10.2014
                                Date of order :05.05.2016
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.

FIRST APPEAL NO. :660 OF 2014
IN COMPLAINT CASE NO.: 321 OF 2013
DISTRICT CONSUMER FORUM :AURANGABAD.

eBay India Private Limited,
14th floor, North Block, R-Tech Park,
Western Express Highway,
Goregaon(East),
Mumbai 400063.                                 ...APPELLANT


VERSUS


1.    Pushkar Pradeep Deshpande,
      Plot No.12, Deep Jyoti,
      Near Apulaki Apartments,
      Opp.Jawahar Nagar Police Station,
      Garkheda,
      Aurangabad, Maharashtra.

2.    Unicorn Exports,
      Through Manager Anuraj Jain,
      A-13, Sector 2 Vaishali,
      Near P.N.B.Bank,
      Gaziabad, Uttar Pradesh.                 ...RESPONDENTS


            CORAM :     Mr.S.M.Shembole, Hon`ble Presiding Judicial
                        Member.

Smt.Uma S.Bora, Hon`ble Member.

Present : Adv.Shyam Jawale for appellant, Adv.P.B.Gawali for respondent No.1.

O R A L JUDGMENT (Delivered on 05th May 2016) Per Mrs.Uma S.Bora, Hon`ble Member.

1. eBay India Pvt.Ltd. preferred this appeal challenging judgment and order passed by District Consumer Forum Aurangabad on 16.7.2014 allowing complainant's case No.321/2013.

2. Facts in nutshell are as under.

Complainant Pushkar Deshpande resident of Aurangabad filed consumer complaint against present appellant and respondent No.2 Unicorn Export, Gaziabad, Utter Pradesh. Appellant is a company who offered opportunity to some companies for promoting their business online through its website www.eBay.in. From that website complainant purchased the mobile of Apple iphone 4, 32 GB factory unlocked sealed packed on 16.7.2013 by making online payment of Rs.24,999/-. Respondent No.2 Unicorn Exports supplied mobile by DTDC Courier on 30.7.2013. After opening box of courier it was revealed by complainant that charger which was supplied with the mobile was not of Apple but it was of Abble. It is also found that USB cable attached with mobile is broken. IMEI code was different from mobile software and mobile chip. Therefore complainant immediately asked respondents 1 & 2 to replace the mobile but request of complainant was not responded by both the respondents. Therefore complainant approached to Forum with the grievance of unfair trade practice on the part of present appellant and respondent No.2. Complainant claimed refund of price of mobile with Rs.50,000/- for mental agony and Rs.6000/- for cost of the complaint.

3. Opponent No.1/present appellant appeared before the Forum and resisted the complaint straightway on the ground that they are only making available on their website for promoting the business and for advertise purpose. They are not seller or supplier. There is no contract between complainant and appellant. Therefore complainant is not their consumer.

4. Respondent No.2 though duly served did not appear before the Forum, therefore complaint proceeded exparte against it.

5. After hearing both the parties District Consumer Forum directed appellant to pay Rs.24,999/- with 10% interest from 16.7.2013 and Rs.25,000/- for mental agony.

6. Adv.Amit Yadkikar appeared for appellant and Adv.P.B.Gawali appeared for respondent No.1. It is submitted by Adv.Yadakikar that complainant is not consumer of the appellant as there is no privity of contract between complainant and present appellant. Appellant is providing online internet based platform for marketing and intermediary as defined U/s 2(f) of Information Technology Act 2000. It is further submitted by Adv.Yadakikar that complainant did not pay single pai to the appellant. Services provided on the website of the appellant are absolutely free for the purchaser and therefore complainant is not consumer of the appellant. But District Consumer Forum by ignoring said fact allowed the complaint. Hence appeal be allowed by quashing and setting aside the impugned order. In support of his contention he relied on decision in case of eBay India Pvt.Ltd. -Vs- Nikhil Vakil , appeal No.91/2013 decided by this Commission on 4.2.2015. Adv.Yadakikar referred several documents, according to which eBay India Pvt.Ltd. is not at all liable in respect of any complaint about the goods. He also drawn our attention to the order passed by Hon'ble Apex Court wherein it is held by Apex Court that eBay India Pvt.Ltd. is only intermediary within the definition of Section 2(w) of the Information Technology Act 2000, intermediary is exempted from any liability arising out of material that is put up on the website.

7. Adv.P.B.Gawali for respondent/complainant submitted that invoice receipts were issued by eBay India Pvt.Ltd. and goods were booked through eBay only and therefore eBay India Pvt.Ltd. is vicariously liable for the act of Unicorn Exports. Liability is joint and severally of both respondents. District Consumer Forum rightly appreciated the facts and evidence while allowing complaint. Hence 4 F.A.No.:660/2014 appeal be dismissed by upholding order passed by the District Consumer Forum.

8. We heard both the counsel and perused the record. It is seen from the record that complainant ordered mobile phone online and it was sold by Unicorn Exports. eBay India Pvt.Ltd. is website which is only making available platform to some of the companies to promote their business and it is not seller. There is no privity of contract between complainant and present appellant. In our view appellant did not obtain single pai in respect of any services making available to the complainant. Therefore there is no relationship as consumer and service provider between complainant and present appellant. In our view District Consumer Forum committed error by allowing complaint without considering legal provision. Therefore order passed by Forum is required to be quashed and set aside by allowing appeal. Hence the following order.

                               O   R   D     E   R


     1. Appeal is allowed.
     2. The impugned           judgment and order passed by District

Consumer Forum is hereby quashed and set aside.

3. Complaint stands dismissed.

4. No order as to cost.

5. Copies of the judgment be supplied to both the parties.

       Sd/-                                            Sd/-
Uma S.Bora,                                       S.M.Shembole,
 Member                                    Presiding Judicial Member


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