eBay India Pvt Ltd V/S Rajesh Kumar - Consumer Court Case

Haryana

Ambala

CC/130/2019

Rajesh Kumar - Complainant(s)

Versus

eBay India Pvt Ltd - Opp.Party(s)

In Person

11 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case No. : 130 of 2019.

Date of Institution : 23.04.2019.

Date of decision : 11.02.2021.

Rajesh Kumar, MT Section Office Police Line, Ambala City, District Ambala-9416112165.

……. Complainant.

Versus

eBay India Private Limited, 14^th Floor, North Block, R-TECH Park, Western Express Highway, Goregaon (East) Mumbai-400063 India (Through its Chairman/Managing Director/Manager).
Isha Wadhwani 6 Jawahar Nagar, Opposite Karbala Maidan, Indore-452001(MP).
Apple India Private Limited Headquarters, 19^th Floor, Concorde Tower C, UB City No.24, Vittal Mallya Road Bangalore 560001 India (Through its M.D).

….…. Opposite Parties.

Before: Smt. Neena Sandhu, President.

Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.

Present: None for the complainant.

OPs No.1& 2 ex parte.

Shri Rajeev Sachdeva, Advocate, counsel for the OP No.3.

ORDER: SH. VINOD KUMAR SHARMA, MEMBER.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

To replace the mobile in question with new one upgraded model amounting Rs.17,990/- alongwith interest @18% per annum from the date of its purchase till its realisation.
To pay Rs.30,000/- as compensation for the mental agony and physical harassment suffered by him.
To pay Rs.3,000/- as litigation expenses.

Any other relief which this Hon’ble Commission may deem fit.

Brief facts of the complaint are that the OP No.1 is selling its product through Online mode at different places in India and Op No.2 is sending the product and responsible for all queries regarding the items like mobile. The OP No.3 is the manufacturer of the mobile phone. On 04.06.2018, complainant purchased Apple iphone 6 64 GB MIX Colours 4G LTE(152899666466) online order through OP No.1 and on 09.06.2018, received the same phone from OP No.2 vide Bill No.16814 dated 04.06.2018 for Rs.17,990/- (on 12 instalments). On 24.06.2018, the said mobile giving problem like automatic Switch Off & hang big problem the mother board of the mobile has not working properly and on the same day, he told the same problem to the OP No.2. The OP No.2 advised the complainant to send the same mobile through courier. On 28.07.2018, he sent the said phone to OP No.2 through Overnite Express Courier Company Limited. After that the OP No.2 asked the complainant to intimate the phone lock and Phone ID, he told the same to OP No.2. The complainant did not received any reply/feedback from OP No.2, despite phone calls as well as email. Thereafter the complainant told all the problem to OP No.1 through e-mail ID

2. Separate registered notices were issued to OPs No.1 & 2, but none has turned up on their behalf, accordingly they were proceeded against ex parte vide order dated 12.06.2019.

Upon notice, OP No.3 appeared through counsel and filed written version, raising preliminary objections regarding concealment of material facts, maintainability, jurisdiction and clean hands etc. On merits, it is stated that the OP No.3 is the manufacturer of the ipone purchased by the complainant is not true. As per the shipping details document produced by the complainant clearly mentions the particular of the iphone as “Apple iPhone 6 64 GB MIX colour 4 LTE use REFURBISH. From the shipping details that the device is refurbished and not the original product sold by OP No.3. On 04.06.2018, complainant had placed online product from OP No.1 and same was delivered by OP No.2. After purchase of the device, the complainant had issued the device and to cure the issues the device was sent to OP No.2, through courier. Complainant has not purchased the device from OP No.3 but has purchased the device which is a second hand/refurbished product. Therefore, he is not the customer of OP No.3. The complainant has not made proper enquiry regarding the genuineness of the product at the time of purchase of the product or regarding the originality of the product. It’s not a product sold by OP No.3 hence it should have been the duty of the complainant to ascertain if the product was genuine. The complainant is not the customer of OP No.3 as the device purchased by the complainant is the refurbished product. There is no privity of contract between the complainant and OP No.3. OP No.3 has also referred a separate application is filed for dismissal of complainant against OP No.3. There is no deficiency on the part of OP No.3 and the complaint filed by the complainant against it, may be dismissed.

3. Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C1 to C7 and closed the evidence. On the other hand, the learned counsel for the OP No.3 tendered affidavit Shri Priyesh Poovanna, Country Legal Counsel, Apple India Pvt. Ltd., 19^th Floor, Concorde Tower C, UB City No.24, Vittal Mallya Road, Bengaluru as Annexure OP3/A alongwith documents as Annexure OP3/1 & OP3/6 and closed the evidence on behalf of the OP No.3.

4. From the perusal of previous orders dated 14.01.2021, 22.01.2021 and 08.02.2021, the complainant did not appear before this Commission for addressing the arguments on his behalf. We have heard the learned counsel for the OP No.3 carefully gone through the case file.

6. Admittedly, complainant purchased Apple iphone 6 64 GB MIX Colours 4G LTE(152899666466) online order through OP No.1 and on 09.06.2018, received the same phone from OP No.2 vide Bill No.16814 dated 04.06.2018 for Rs.17,990/- (Annexure C-1). On 24.06.2018, the said phone started giving problem like automatic Switch Off & hang big problem the mother board of the mobile has not working properly and on the same day, he told the same problem to the OP No.2. The OP No.2 advised the complainant to send the same mobile through courier. Perusal of the document as Annexure C-5, it is evident that on 28.07.2018, complainant sent the said phone to OP No.2 through Overnite Express Courier Company Limited. After that the OP No.2 asked the complainant to intimate the phone lock and Phone ID, he told the same to OP No.2. From the copy of email dated 14.02.2019 as Annexure C-6, it is evident that complainant communicated the entire problem to OP No.1, but no reply was given till date by OP No.1. Despite registered notices the OPs No.1 and 2 failed to appear before this Commission to rebut the version of the complainant. The contentions of the complainant have gone unrebutted, as the OPs No.1 and 2 preferred not to appear before this Commission and they were proceeded against exparte. Thus, we have no option but to accept the version of the complainant, which is duly supported by his affidavit and other supporting documents. The OPs No.1 and 2 is also liable to compensate the complainant for the mental agony and physical harassment caused to him alongwith litigation charges.

7. Learned counsel for OP No.3 has argued that on 04.06.2018, complainant had placed online product from OP No.1 and same was delivered by OP No.2. After purchase of the device, complainant had issued the device and to cure the issues the device was sent to OP No.2, through courier. It is further argued that the product has not been manufactured by OP No.3. Complainant has not purchased the device from OP No.3 but has purchased the device which is a second hand/refurbished product. Therefore, he is not the customer of OP No.3, as the device purchased by the complainant is the refurbished product. There is no privity of contract between the complainant and OP No.3. In support of its case, the OP No.3 produced copy of minutes of the board meeting of Apple India Private Limited as Annexure OP3/1, foreign trade policy as Annexure OP3/2 and copy of warranty version as Annexure OP3/4. We have perused the application for dismissal of the complaint filed by OP No.3 as well as reply to the said application filed by the complainant.

8. From the above mentioned facts and circumstances, it is clearly established that the complainant failed to rebut the contention of the OP No.3. Thus, the OP No.3 is not deficient in providing the service as neither the complainant had purchased the device from the OP No.3 nor he is not consumer of the OP No.3. Since, there is no specific allegation against the OP No.3 and even no role has been played by OP No.3 in the matter in dispute, therefore, complaint against OP No.3 deserves to be dismissed. Simultaneously, the application of the OP No.3 for dismissal of the complaint is disposed off accordingly.

9. In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.3 and allow the same against OPs No.1 and 2. OPs No.1 and 2 are directed in the following manner:-