BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.376 of 2017
Date of Instt. 04.10.2017
Date of Decision: 17.07.2018
Amit Prajapati aged about 24 years son Achhelal, resident of House No.102, Village Moti Gang, Distt. Gonda (UP) and presently studying and residing in Lovely Professional University, Chaheru, Distt. Jalandhar.
..........Complainant
Versus
1. Ebay India Private Limited, 14th Floor, North Block, R-Tech, Western Express High WA, Goregaon (East) Mumbai-400063 (Maharastra) through its Authorized Signatory.
2. DTDC Branch Office at Shop No.1, Basra Complex, Pathankot Bye Pass Chowk, Near KMV College, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. Tilak Singh, Adv Counsel for the Complainant.
OP No.1 and 2 exparte.
Order
Harvimal Dogra (Member)
1. This complaint is presented by the complainant Amit Prajapati under the 'Consumer Protection Act, 1986' against the OPs, on the allegations of deficiency in service and unfair trade practice with the prayer that the complaint of the complainant may be accepted and the OPs be directed to return the price of the said mobile phone Rs.27,599.08/-, which the OPs have already received along with interest @ 18% per annum from the day of receiving the amount till its refund and also to pay Rs.50,000/- as damages and Rs.1000/- as cost of the legal notice. The OPs may also be directed to pay Rs.20,000/- as litigation expenses to the complainant, in the interest of justice.
2. The brief facts of the complaint are that the complainant is studying and residing in Lovely Professional University, Chaheru, Distt. Jalandhar. That the OP No.1 is a company which is working under the name and style Ebay India Private Limited and is selling various items by booking the same on Online System through-out India. The OP's No.2 is the delivering agency of the OP No.1 for the goods sold by the OP No.1 and one of the office/business place of the OP No.2 is at Jalandhar City fully described above under the name and style DTDC and in this way both the OPs are liable and responsible for the act, business and services of each other. The complainant put an order for purchase of Mobile Phone Set make Samsung Galaxy, 7S edge-32-GB-Gold Smart Phone (122183049869) through On-Line system on 15.10.2016 and paid Rs.27,599.08 to ECOM262835 EBAY INDIA from his bank account No.7795000100008043of Punjab National Bank, Branch at Main Road, Dalpatpur (UP) and the price of the ordered Mobile Phone was transferred in the account of the OP No.1. The complainant make an order for purchase of Mobile Phone Set and the OP No.1 received the price of the ordered mobile set for selling the same to the complainant and the OP No.2 had to deliver the said Mobile phone set to the complainant. That the complainant got detail of the delivery of the ordered Mobile Phone through Internet on Online from the site of Ebay India Private Limited in which the courier name is mentioned as DTDC and Airway Bill number is mentioned as D36567891 and it is further mentioned that for more detail the complainant may call on OP No.2 on 08025365032 or click the above link, but in spite of that the complainant have not received the ordered Mobile Phone Set so far. The complainant started conversation and messages through online system with the OP No.1 time and again and the OP No.1 told the complainant to contact with the OP No.2 for the delivery of the ordered Mobile Phone set to the complainant. The photo copies of all the conversation are attached on the file. On email conversation on 12.12.2016 one official of the OP No.1 namely Richa made detailed conversation with the complainant to whom the complainant clearly told that he had not received the Mobile Phone Set till date and she told that the refund of the complainant have been approved on 08.12.2016 and it will take 6 to 8 working days for the amount to reflect in the bank account of the complainant. The said official also told the complainant that the refund amount is reversed to his original mode of payment. It was also told by the said official that the complainant need not to worry and his money is safe and secure with Ebay, but in spite of that no amount has been transferred in the bank account of the complainant. The complainant also approached the OP No.2 and who told that no consignment No.D36567891 has been traced and after that they blocked the said ID Number and in this way the OPs in connivance with each other indulged in unfair trade practice by not delivering the product ordered by the complainant even after receiving the payment in advance. That after the repeated conversation of the complainant with the OPs the complainant received a message on email that the claim of the complainant for refund of his money has been rejected and the OPs refused to refund back the amount of Rs.27,599.08 and refused to deliver the ordered Mobile Phone Set. The complainant then got issued a legal notice through his counsel on 19.08.2017, but all in vain. Hence, this complaint.
3. After the formal admission of the complaint, notice was issued to the OPs, but despite service both the OPs did not come present and ultimately, both the OPs were proceeded against exparte.
4. In order to prove his exparte claim, the complainant himself tendered into evidence his duly sworn affidavit Ex.CW1/A along with some documents Ex.C-1 to Ex.C-16 and then closed the evidence.
5. We have heard the complainant in person and also examined the entire material on record and have given thoughtful consideration to the arguments advanced before us by the learned counsel for the complainant.
6. The main issue for consideration in the present case is whether the mobile handset was delivered to the complainant or not and whether there has been any deficiency in service on the part of the OPs. The story set up by the complainant is that he has purchased one mobile phone set make Samsung Galaxy, 7S edge-32-GB-Gold Smart Phone (122183049869) through online on 15.10.2016 and paid Rs.27,599.08/- to ECOM262835 EBAY INDIA and the amount was transferred to the account of OP No.1, but the mobile handset was not received by the complainant. The complainant further started conversation and send number of messages through email, but all of them prove fatal. The complainant even contacted OP No.2 for the delivery of mobile set, but they also showed their inability and told that no consignment has been received by them. The complainant contacted OP No.1 through online system and photocopies of the letter of conversation are Ex.C-4 and Ex.C-5 in which the complainant requested OP No.1 to deliver the ordered mobile phone or refund back the price of the mobile. Many letters were also sent to the complainant and reply to these letters are Ex.C-7 to Ex.C-10. The OP No.2 also wrote a letter Ex.C-11 to OP No.1 to know the details of consignment. On 12.12.2016, official of the OP No.1 made detailed conversation Ex.C-13 with the complainant and assured that the amount of the mobile handset will be refunded and it will take 6-8 working days for amount to reflect in complainant's bank. On 18.12.2016, complainant received the information through online system Ex.C-12, wherein it was mentioned that “We regret to inform you that we are closing the escalation from grievance and my best advice you to solve your matter with seller amicably”. The complainant received one message online Ex.C-14, wherein it was stated that the claim of the complainant for refund of money has been rejected and OPs has refused to refund the amount of Rs.27,599.08 and also refused to deliver the mobile handset. Complainant also issue a legal notice on 19.08.2017, which is Ex.C-15.
7. After considering the whole case, it has become crystal clear that mobile handset might have lost in transit and as such, the matter is clear that mobile handset never reached with the complainant. Both the OPs are held responsible for loss, destruction, damage and for non delivery of mobile handset. The evidence adduced by the complainant before us has gone un-challenged and un-rebutted as OPs did not bother to appear and contest the complaint before us.
8. Moreover, OPs have failed to bring on record any evidence to show that the said non-delivery of mobile handset was not on account of default on the part of its employee. So, in the given facts and circumstances of the case, we find force in the contention of the complainant and find deficiency in service and unfair trade practice on the part of the OPs and held that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainant is partly accepted and OPs are directed to refund the cost of mobile handset i.e. Rs.27,599.08 and OPs are further directed to pay Rs.15,000/- as compensation for mental tension and harassment and OPs are also directed to pay Rs.3000/- as litigation expenses. The aforesaid compliance be made within one month from the date of receipt of the copy of order, failing which the OPs will be liable to pay 12% interest on the amount from the date of filing complaint, till realization. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
17.07.2018 Member President
