DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.
CC.No.159 of 16-04-2013
Decided on 10-09-2013
Raman Kumar aged about 25 years S/o Rohan Lal C/o Royal Telecom, Shop No.36, Fish Market, Near Railway Station, Bathinda.
........Complainant
Versus
1.Ebay India Pvt. Ltd., Regd. Office, 14th floor, North block, R-tech Park, Western Express Highway, Geregaon (East), Mumbai-400 063, Maharashtra (India), through its M.D/Chairman/Director.
2.Cart2India Online Retail Pvt. Ltd., 2nd floor, No.12 Sanjeevappa Layout, 10th E cross Nagvarapalya, Banglore-560 093, Karnataka, through its M.D/Chairman/Director.
3.Shri Ram Teleservices (Samsung Service Centre), SCF-62, Ist floor, near hotel Amsun Pride, Amrik Singh Road, Bathinda, through its Incharge/Partner/Prop./Manager.
4.Samsung India Electronics Pvt. Ltd., 7th & 8th floor, IFCI Tower, 61, Nehru Place, New Delhi-110 019, through its Managing Director/Chairman/Authorized Signatory.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt.Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.Sushil Kumar, counsel for the complainant.
For Opposite parties: Sh.R.D Goyal, counsel for opposite party No.1.
Sh.Kuljit Pal Sharma, counsel for opposite party Nos.3 & 4.
Opposite party No.2 ex-parte.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. Instant complaint has been filed under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that on the allurement of the opposite party No.1, he has purchased one mobile handset 001 Samsung Galaxy Note 2 N7 100 (Titanium Grey), manufactured by the opposite party No.4, marketed and invoiced by the opposite party No.2 from the opposite party No.1 on 2.2.2013 vide order ID No.149255. The opposite party No.2 has sent the mobile handset bearing serial/IMEI No.355251059461434 to the complainant vide invoice No.C21-246963-A dated 4.2.2013 for Rs.34,485/-, received on 6.2.2013 by Arun Bansal, a close friend of the complainant. On 7.2.2013, the complainant in the presence of Arun Bansal opened the parcel, containing the said mobile handset and tried to activate the same by inserting SIM. As there was a speaker problem and the said mobile handset was not working properly, the complainant requested his friend Arun Bansal to take the same to the opposite party No.3. Arun Bansal took the said mobile handset to the opposite party No.3 on 7.2.2013. The technical engineer of the opposite party Nos.3 and 4 diagnosed the mobile handset in question and found some manufacturing defect in its working and advised to get the said mobile handset sealed and seek a certificate 'Dead on Arrival' certificate and further advised to return the same to the opposite party No.2 within 7 days from the date of issuance of the aforesaid certificate. The opposite party No.3 has prepared 'Dead on Arrival Certificate' on 7.2.2013 and got it signed from Arun Bansal. At the time of putting the seals, the opposite party No.3 found that the required seals were not in its stock and conveyed Arun Bansal that it would call him on the receipt of the seals to collect the duly sealed handset from it alongwith certificate to return the same to the opposite party No.2. On 13.2.2013, the complainant received a telephone call from the opposite party No.3, asking him to collect the said mobile handset and certificate to send the same to the opposite party No.2. The complainant collected the said mobile handset and sent the same to the opposite party No.2 vide courier receipt No.13679733922 dated 15.2.2013 through Blue Dart Courier, the same was received by the opposite party No.2 on 18.2.2013. The opposite party No.2 instead of replacing the said mobile handset, has returned the same mobile handset to the complainant through courier. On asking of the complainant, the opposite party No.2 replied through e-mail dated 6.3.2013 'Please note that as per the Samsung DOA policy, the DOA certificate is valid only for a week. Hence the suppliers will not accept the DOA certificate and the process of the replacement. We request to contact the Samsung Service Centre for assistance'. Thereafter various online correspondences and conversation was made by the complainant with the opposite parties but nothing has been done. On 23.3.2013, the complainant again visited the opposite party No.3 but it kept on postponing the matter on one or the other pretext. The complainant also visited the opposite party No.3 on 25.3.2012 as 24.3.2012 was holiday i.e. Sunday, it after getting the signatures of the complainant on a printed paper without explaining the contents thereof, conveyed him that they will send the said mobile handset for repair but the complainant protested for the same and refused to repair his new mobile handset. The said mobile handset is still lying with the opposite party No.3. The complainant was in need of the mobile handset for his personal use, so under the compelled circumstances he purchased another mobile handset from Silverline vide bill No.2471 dated 6.4.2013 for Rs.36,700/- of the same company and model. Hence the present complaint filed by the complainant to seek the directions to the opposite parties to refund the price of the said mobile handset i.e. Rs.34,485/- alongwith interest, cost and compensation.
2. Notice was sent to the opposite parties. The opposite party No.1 after appearing before this Forum has filed its separate written statement and pleaded that it merely facilitates the transactions between the members of the website by providing a platform to them to enter into the transactions of sale and purchase of items without any claim against it. The website is merely an online marketplace and acts as an intermediater, as defined under Information Technology Act, 2000 as amended from time to time that provides an opportunity to the individuals to register on the website as a seller and/or buyer to list, sell and buy items using this online platform provided by the website. The contract of sale and purchase of items over the website is strictly a bipartite contract between the seller and willing bidder/buyer, for this the registered users agree by accepting the terms of the User Agreement on the website during the registration process. The complainant opted to purchase the mobile handset 001 Samsung Galaxy Note 2 N7 100 (Titanium Grey), manufactured by the opposite party No.4, marketed and invoiced by the opposite party No.2. The online order for the purchase of the aforesaid mobile handset on 2.2.2013 vide order ID No.149255 was given to the opposite party No.2 by using the website, managed and operated by the opposite party No.1. The complainant paid the amount of Rs.34,485/- for the item with Paisa Pay ID No.149255. Paisa Pay is an integrated online payment facility available to the independent buyers, therein buyers may choose Paisa Pay to make the payment for the product(s) or services purchased by them from independent seller(s), it list their products on the website by using the Paisa Pay facility. No fees or charges of any nature are levied by the opposite party No.1 on buyers that choose to use the Paisa Pay payment facility, the transaction amount remains in the Paisa Pay Nodal bank account, managed by the Nodal Bank. The opposite party No.1 does not earn any interest on the said deposits. The said amount was to be paid to the seller on the delivery of the item to the buyer. The complainant did not fulfill the conditions of the eBay Guarantee program, therefore the price of the item/mobile handset was not refunded to him. The opposite party No.1 denied that Arun Bansal took the said mobile handset to the opposite party No.3 on 7.2.2013 and on checking, the opposite party No.3 conveyed him that there is manufacturing defect in it. The opposite party No.1 denied all other averments of the complainant.
3. The opposite party Nos.3 & 4 after appearing before this Forum have filed their joint written statement and pleaded that under the warranty, their obligation is to set right the said mobile handset by repairing or replacing the defective parts only. The performance of the said mobile handset depends upon the handling of the product, various mobile applications being downloaded and used by the complainant. No assurance to replace the said mobile handset was given by the opposite party Nos.3 and 4 under the terms of the warranty and the complainant cannot claim more than he has agreed to. The complainant approached the service centre of the opposite party Nos.3 and 4 and reported the problem relating to speaker. The service engineer inspected the said mobile handset and found that the problem occurred due to the mishandling and negligence of the complainant or during the transportation of the said mobile handset from the opposite party No.1 to the complainant, as such there is no fault of the manufacturer company or service centre. There is no hardware problem in the said mobile handset. However, as a goodwill gesture the opposite party Nos.3 & 4 are still ready to render the service with regard to the said mobile handset, if required. The complainant has neither alleged any specific irreparable manufacturing defect or inferior quality of any specific part of the product nor filed any documentary evidence i.e. authenticated report of an expert and qualified person of central Approved Laboratories in support of his allegations.
4. The opposite party No.2 despite service of summons has failed to appear before this Forum. Hence ex-parte proceedings are taken against the opposite party No.2.
5. The parties have led their evidence in support of their respective pleadings.
6. Arguments heard. The record alongwith written submissions submitted by the parties perused.
7. Admitted facts of the parties are that the complainant has placed online order for the purchase of the mobile handset 001 Samsung Galaxy Note 2 N7 100 (Titanium Grey), manufactured by the opposite party No.4, marketed and invoiced by the opposite party No.2 from the opposite party No.1 on 2.2.2013 vide order ID No.149255. The opposite party No.2 has sent the mobile handset bearing serial/IMEI No.355251059461434 to the complainant vide invoice No.C21-246963-A dated 4.2.2013 for Rs.34,485/-, received on 6.2.2013 by Arun Bansal, a friend of the complainant sitting at his shop.
8. The disputed facts are that the the complainant has opened the parcel of the said mobile handset on 7.2.2013 and tried to activate the same by inserting the SIM but there was a speaker problem and the said mobile handset was not working properly, the complainant requested his friend Arun Bansal to take the same to the opposite party No.3. After taking the said mobile handset, the opposite party No.3 conveyed Arun Bansal that there is some manufacturing defect in it. The technical engineer of the opposite party Nos.3 and 4 diagnosed the mobile handset in question and advised to get the said mobile handset sealed and seek a certificate 'Dead on Arrival' and further advised him to return the said mobile handset to the opposite party No.2 within 7 days from the date of issuance of the aforesaid certificate. The opposite party No.3 has prepared 'Dead on Arrival Certificate' on 7.2.2013 itself and got it signed from Arun Bansal. At the time of putting the seals, the opposite party No.3 found that the required seals are not in its stock and conveyed Arun Bansal to approach it whenever he be called by it. On 13.2.2013, the complainant received a telephone call from the opposite party No.3, asked him to collect the said mobile handset with seals and the said certificate. The complainant alongwith his friend collected the said mobile handset and sent the same to the opposite party No.2 vide courier receipt No.13679733922 dated 15.2.2013 through Blue Dart Courier, received on 18.2.2013 by the opposite party No.2. The opposite party No.2 sent the same mobile handset to the complainant through courier on the pretext that as per the Samsung DOA policy, the DOA certificate is valid only for a week. The suppliers would not accept the DOA certificate and process of the replacement. So asked him to contact the Samsung Service Centre for assistance. Thereafter various online correspondences and conversation was made by the complainant with the opposite parties but no fruitful result was given by them. The complainant again visited the opposite party No.3 on 23.3.2013 but it kept on postponing the matter on one or the other pretext. The complainant also visited the opposite party No.3 on 25.3.2012, it after getting the signatures on a printed paper without explaining its contents, conveyed him that they will send the said mobile handset for repair but the complainant protested for the same and refused to get his new mobile handset repaired. The said mobile handset is still lying with the opposite party No.3. The complainant was in need of the mobile handset for his personal use, so under the compelled circumstances he purchased another mobile handset from Silverline vide bill No.2471 dated 6.4.2013 for Rs.36,700/- of the same company and model.
9. On the other hand the opposite party No.1 submitted that it acts as an intermediater only, as defined under Information Technology Act, 2000 as amended from time to time that provides an opportunity to the individuals to register on the website as a seller and/or buyer to list, sell and buy items using this online platform provided by the website. Thus the contract of the opposite party No.1 is to facilitate the sale and purchase transactions through its website. The contract of sale and purchase of items over the website is strictly a bipartite contract between the seller and willing bidder/buyer, for this the registered users agree by accepting the terms of the User Agreement on the website during the registration process. The product was manufactured by the opposite party No.4, marketed and invoiced by the opposite party No.2. The online order was placed with the opposite party No.2 and the amount of Rs.34,485/- was paid for the item with Paisa Pay ID No.149255, thus there is no liability of the opposite party No.1.
10. The opposite party No.2 in order to shed its liability has not appeared before this Forum as the whole transaction has been made by it and the product was marketed and invoiced by the opposite party No.2.
11. The opposite party Nos.3 and 4 submitted that the defect, if any, has occurred due to the mishandling on the part of the complainant. Moreover the complainant has neither alleged any specific irreparable manufacturing defect or inferior quality of any specific part of the product nor filed any documentary evidence. A parcel containing the said mobile handset was received by the complainant from the opposite party No.2 on 6.2.2013 vide Paisa Pay payment. The complainant opened the parcel of the said mobile handset on 7.2.2013 and found that there was problem in the speaker of the said mobile handset and the same was not working properly. The complainant asked his friend to approach the opposite party No.3 on 7.2.2013. In para No.5, the opposite party Nos.3 and 4 have specifically denied that on checking the opposite party No.3 conveyed the complainant that there is manufacturing defect in the said mobile handset or their technical engineer advised him to get the same seal and take 'Dead on Arrival' certificate to return the same to the opposite party No.2 within 7 days from the issuance of the said certificate.
12. A perusal of documents placed on file shows that vide Ex.C3, the opposite party No.3 has issued the DOA certificate on dated 7.2.2013, the defect reported by customer:-Loudspeaker audio issue, defect diagnosed by engineer:-DOA Speaker problem and the remarks has been given as 'DOA'. The complainant has sent this certificate alongwith the mobile handset in question to the opposite party No.2 on 15.2.2013 at 16:45 and the weight of the parcel/courier was 612 gms and he has received an e-mail from the opposite party No.2 vide Ex.C6, in which it has been specifically mentioned that 'Please note that as per the Samsung DOA policy, the DOA certificate is valid only for a week. Hence the suppliers will not accept the DOA certificate and process the replacement. We request to contact the Samsung Service Centre for assistance'. Thereafter the complainant has received an another e-mail on dated 31.3.2013 at 4:13 PM vide Ex.C7. The relevant portion of this e-mail is reproduced:-
“.......With reference to your mail and as per our conference call with you and service centre (Mr.Ashish-9803114356) related with DOA certificate issue and regarding the replacement of your mobile phone. We would like to inform you that as confirmed by service centre, they have already spoken to their head office and they require some more time to get this issue resolved.
Therefore, we request you kindly coordinate with the service centre in this regard, if in case, you face any inconvenience you can contact us again, we will be happy to assist you in the best way possible.”
The opposite party No.3 has placed on file DOA certificate dated 7.2.2013 Ex.OP3/1 in which the same description has given that is mentioned in Ex.C6 but the opposite party Nos.3 and 4 have denied this 'Dead on Arrival' certificate in their reply, whereas they themselves have placed on file the 'Dead on Arrival' certificate vide Ex.OP3/1. The 'Dead on Arrival' certificate Ex.C6 and Ex.OP3/1 is contradictory with the reply of the opposite party Nos.3 and 4, thus it is sufficient to prove that in order to shed their liability, the opposite party Nos.3 and 4 are not accepting the factum that they have issued the 'Dead on Arrival' certificate to the complainant and the mobile handset has been sealed with delay.
13. Thus from the facts, circumstances and evidence placed on file it has been proved that the complainant has received the said mobile handset with the problem of speaker not working, the opposite party No.3 issued the DOA certificate to the complainant and sealed the mobile handset in question but no record has been placed on file by the opposite parties to show that the seals were not available on 7.2.2013, rather they have intentionally delayed the matter and sealed the mobile handset with delay in order to run away from their liability as the replacement was to given by the opposite party No.4 through the opposite party No.2. If the said mobile handset would have been sealed on 7.2.2013 and has been handed over to the complainant alongwith 'Dead on Arrival' certificate, there arose no question of not sending the same to the opposite party No.2 by the complainant on 7.2.2013 itself. Moreover the complainant has purchased the said mobile handset on the assurance of the opposite party No.2 through the website of the opposite party No.1 that the said mobile handset would be defect free but on arrival, the same was found defected. The complainant has not used the said mobile handset even for a single day, the complainant has returned it to the opposite party No.2 on 15.2.2013 i.e. as soon as the complainant received the mobile handset duly sealed from the opposite party No.3 on dated 13.2.2013 as per the Samsung DOA policy, alongwith Dead on Arrival
certificate. The said mobile handset was duly sent within 7 days as per the policy of the opposite party No.2, thus it became the duty of the opposite party No.2 to get the same replaced with new one as it is not expected from any distributor or seller to send a defective item to any of it customers. The non appearance of the opposite party No.2 confirms their negligence and deficiency in service as the defective mobile handset has been delivered to the complainant. There is also deficiency in service on the part of the opposite party No.3 that has issued the certificate on 7.2.2013 but has sealed the mobile handset on 13.2.2013 which shows the malafide intention of the opposite party No.3 to delay the replacement of the said mobile handset in time. Moreover the mobile handset was sent back to the complainant by the opposite party No.2, the complainant approached the opposite party No.3 to seek necessary help but it kept the mobile handset in question for repair and got signed the job sheet from the complainant. The complainant refused to get the same rectified/repaired and since then it is lying with the opposite party No.3. There is no question of mishandling on the part of the complainant as the defect, if any, has occurred, is either due to the transportation or the opposite party No.2 has sent the defective product to the complainant. In both cases the opposite party No.2 is sole liable to replace or refund the amount of the said mobile handset. The opposite party No.1 only provides a platform to the parties to enter into an agreement.
14. Therefore in view of what has been discussed above there is deficiency in service on the part of the opposite party Nos.2, 3 and 4. Hence this complaint is accepted with Rs.10,000/- as cost and compensation against the opposite party No.2 and with Rs.3000/- as cost and compensation against the opposite party Nos.3 and 4 and dismissed qua the opposite party No.1. The opposite party No.2 is directed to refund the amount of Rs.34,485/- to the complainant and at the same time the opposite party No.3 will send the mobile handset of the complainant (already in its possession) to the opposite party No.2.
15. Thus the opposite party Nos.2, 3 and 4 are directed to do as under:-
1) The opposite party No.2 is directed to pay the cost and compensation to the tune of Rs.10,000/- and to refund Rs.34,485/- to the complainant;
2) The opposite party Nos.3 and 4 will pay the cost and compensation of Rs.3000/- to the complainant;
3) The opposite party No.3 will send the mobile handset of the complainant already lying with it to the opposite party No.2 within 15 days from the date of receipt of the copy of this order.
16. The compliance of this order as whole be done within 30 days from the date of receipt of the copy of this order.
17. In case of non-compliance the amount of Rs.34,485/- will carry interest @ 9% per annum till realization.
18. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Pronounced in open Forum
10-09-2013
(Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
