CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

         Case No.309/16

Deepanshu Sapra

S/o Shri Ravi Kant Spara

R/o H.No.259, Near Old Post Office

Mohalla-Kot, Soniat, 131001. Hr.                                …..COMPLAINANT

Vs.

M/s Abacus Solution

G-32 First Floor, AF Enclave, Okhla,

New Delhi-110025.

M/s Apple India Pvt. Ltd.

Through its MD/Manager/AR

Office at 19^th floor, Concorde Tower-C,

UB City No.24

Vittal  Mallya Road,

Banglore-560001.

Mintkart India Pvt. Ltd.

(Formerly e-bay India Pvt. Ltd.)

Through its Manager/AR/MD/Director

1261, 6^th Floor Building No.12, Solitaire Corporate Park

No.167, Guru Hargobind Ji Marg, Andheri (East)

 Mumbai-400093.                                                                     …..RESPONDENTS

Date of Institution-07.10.2016

                   Date of Order-05.04.2024

O R D E R

RITU GARODIA-MEMBER

1.  The complaint pertains to deficiency of service on the part of OP in repudiating the claim of complainant.

2. The complainant purchased an Apple I Phone 5S-32GB-Gold from OP1, the seller, through OP3, E-bay, for Rs.23,990/- vide invoice dated 01.05.2016. The payment was made at the time of placing the order with OP3 which has been debited from the complainant’s bank account.

3. It is alleged that the phone was under original warranty of one year from the date of purchase and the seller had also given six months seller’s warranty. The handset started giving trouble within few months of purchase and was submitted in an authorized service center of OP2, the manufacture, on 07.09.2016 for defects such as heating and touch not working. The complainant was surprised to find that the device was out of warranty as per the job sheet report. The said report is as follows:
4.  

4. The complainant was further surprised to find that his gold handset was shown as a silver colored handset and was earlier sold in US. The complainant contacted the seller as well as manufacturer. He did not get any affirmative reply. Thereafter, he sent emails for refund of an entire amount to OPs. The complainant prays for compensation.

5. Notice was issued to OP1 but none appeared. OP1 was proceeded Ex-parte vide order dated 07.02.2017.

6. OP2 in its reply submits that the device in question is a second hand/ pre-owned in nature. When the handset was submitted to the service center on 07.09.2016, a standard diagnostic test was done. It was found that the handset was first sold in USA on 29.08.2014 and thereafter, was sold in India through an e-commerce website of OP3.

7. OP2 further submits that it provides one year limited warranty on its product when the product is used in accordance with the Apple’s User’s Manual. Hence, the said phone is out of warranty and OP2 is under no obligation to repair and service the said phone. OP2 further submits that warranty status of any handset could be checked by entering a serial number allotted to the product which is easily accessible on the settings option in the device. It is further stated that the said I-phone was never imported to India but was sold in India without authorization and knowledge of OP2.

8. OP3 in its reply submits that it is providing an online market place wherein independent third party sellers list, advertise and sell their products to the user buyer who visit the e-bay platform. OP-3 also submits that it falls under the definition of intermediary under Section 2(1)(w) of the Information Technology Act, 2000. It is further submitted that OP3 is protected under Section 79 of Information Technology Act, 2000. OP2 further submits that there is no privity of contract between the complainant and OP3 as the product was purchased from third party logistics service provider and OP3 has nothing to do with providing warranty of the product.

9. The complainant has filed the evidence by way of affidavit and exhibited the following documents:

1. Copy of order for purchase of Apple I phone is exhibited as Ex.CW-1.
2. Copy of Invoice and Bank Statement is exhibited as Ex.CW-2.
3. Copy of job sheet/Delivery Report is exhibited as Ex.CW-3.
4. Copy of order mail is exhibited as Ex.CW-4.

10. The OP-2 has filed the evidence by way of affidavit and exhibited the following documents:

1. Copy of Board Resolution is exhibited as Exhibit RW2/1.
2. Copy of letter of Authority is exhibited as Exhibit RW2/2.
3. Copy of warranty terms of the OP2 is exhibited as Exhibit RW2/3
4. Copy of service report and delivery report is exhibited as Exhibit RW2/4.
5. Copy of impugned iPhone’s repair report is exhibited as Exhibit RW2/5.

11. OP3 has filed the evidence by way of affidavit but has not exhibited any documents.

12. Commission has considered the material and documents on record. The retail invoice dated 01.05.2016 shows that complainant has purchased one iPhone 5S 32GB (Gold) IMCE- 352000067922116 for Rs.23,990/-. The terms and conditions in this invoice are as follows: -

“1. Goods once sold will not be taken back.

3. Subject to ‘Delhi’ jurisdiction only.”

13. The job sheet/ delivery report dated 07.09.2016 is as follows:
14.  
14. It is apparent from the job sheet that the handset was bought in the USA and subsequently resold in India without authorization, rendering it out of warranty. The invoice from the OP1 seller explicitly states that OP1 offers a six-month seller warranty. The device was purchased on 01.05.2016, and the issue arose on 07.09.2016, falling within the six-month warranty period. Consequently, OP1, the seller, is obligated to reimburse the cost of the faulty handset sold under false pretexts. Additionally, OP1 has engaged in deceptive trade practices by failing to disclose to the complainant that the phone was originally purchased in the USA and by unauthorizedly selling it to the complainant.

15. It is unequivocally evident that OP3 is actively engaged in the business of furnishing services through its online platform, for the purpose of facilitating interactions between prospective buyers and sellers. OP3 serves as a conduit for communication between these parties, thereby facilitating the establishment of contracts for the sale and purchase of movable goods. Given that this represents OP's declared business interest, it is impermissible for OP3 to assert that it renders a service purely gratuitously, devoid of any corresponding consideration.

16. OP has relied on Section 79 of Information Technology Act 2000 which exempts the liability of any intermediary. OP has not disputed the delivery and pick-up of the product in question. OP has not disputed communication with the complainant. Irrespective of the terms and conditions of the vendor/seller, an Agreement between OP and seller casts an inherent responsibility on the part of OP, who being a facilitator, to provide all necessary support services expected by the customers. These services encompasses logistical assistance and payment facilitation to ensure customer satisfaction and effective resolution of the concerns raised by the complainant consumer and the user of e-commerce platform of OP. The consumer/user/complainant purchases through online portal trusting the services of OP and the complainant customer has no direct interaction or privity of contract with the seller. The present case is not about the product liability or defect in product but liability for the product which was sold unauthorisedly in India.

17. Hon’ble National Commission in Rediff.Com India Limited vs Ms. Urmil Munjal 2013(3)CLT79(NC) has observed that:

We find that the view taken by the fora below is completely in line with the admitted position of the RP/OP. In para 2 of its written response before the District Forum, it is clearly stated that the respondent company is engaged in business of providing services through its internet portal (www.rediff.com) to interested buyers and sellers by acting as a means of communication between them and bringing into existence contracts of sale and purchase of movable goods. If this is the declared business interest of the RP/OP it cannot be permitted to claim that it is providing purely gratuitous service to its customers, without any consideration. It is certainly not the case of RP/OP that it is a charitable organisation involved in e-commerce, with no business returns for itself. We therefore, reject the contention of the revision petitioner that the respondent/Complainant is not a consumer of the revision petitioner within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986.

18. In light of the preceding discussion, it is evident that OP3, the online platform, falls squarely within the purview of the Consumer Protection Act. OP3 acknowledges that the product was procured from a third-party logistics service provider. However, OP3 has not submitted any documents or correspondence demonstrating the measures taken to address the complaint of its own customer, the complainant in this case, and any action taken against the seller, namely the third-party logistics service provider.

19. Hence, we find OP1 guilty of deceptive trade practices and direct OP1 to refund the cost of the Mobile phone- Rs.23,990/- with 9% interest from date of purchase till payment. We also direct OP1 to pay Rs.10,000/- as compensation and mental harassment and physical inconvenience.

20. We also conclude that OP3 is culpable of providing inadequate service by neglecting to address the grievances of its customer on its online marketplace. The complainant was unaware of the third-party seller responsible for selling the device in question. Nevertheless, OP3's marketplace is expected to conduct due diligence on the sellers operating on its platform. However, OP3 made no endeavours to resolve the dispute between the complainant and the seller. Consequently, we find OP3 guilty of providing inadequate service and order it to compensate the complainant with Rs. 10,000/- for the distress and harassment caused.

21. Order to be uploaded on website. File be consigned to record room.