DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.394 of 2016
Date of institution: 28.06.2016 Date of decision : 21.08.2017
Manvir Singh son of Randeep Singh resident of House No.312, Ward No.11, Morinda, District Ropar, Punjab and also at Spice Digital Limited, D-91, Phase-VII, Industrial Area, Mohali.
……..Complainant
Versus
1. E-bay India Private Limited, 14th Floor, North Block, R-Tech Park, Western Express Highway, Goregaon (East), Mumbai 400063 through its Managing Director.
2. Amit Basak M/s. MCS, 30-B, D Neog Path, ABC, GS Road, Guwahati Assam 781005.
3. Apple India Private Limited, 19th Floor, Concorde Tower C, UB City No.24, Vittal Mallya Road, Bangalore through its Managing Director/Director.
2nd Address
Apple Store, SCO No.112-113, Sector 34-A, Chandigarh.
………. Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President
Mrs. Natasha Chopra, Member.
Present: Complainant in person.
OP No.1 and 2 ex-parte.
Shri Vikas Gupta, counsel for OP No.3
ORDER
By Ajit Pal Singh Rajput, President
Complainant Manvir Singh has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. OP No.1 Company is dealing in online sales. It had floated a scheme for sale of HTC One M8 Gold mobile through website www.ebay.in. On 31.03.2016 the complainant booked the mobile phone with OP No.1 for Rs.13,500/- in installments for six months with HDFC Bank Credit Card. The complainant received the courier on 04.04.2016 through DTDC Courier and after opening the wrapper found the damaged Chinese phone in the box. The invoice received by the complainant was also on the name of one person namely Sriram M and there was no detail of the complainant. The complainant immediately made a complaint to OP No.1 through e-mail on 04.04.2016 followed by another e-mail. In response to these e-mails, OP No.1 through e-mail realized their mistake and assured that they are trying to sort out the matter. OP No.1 contacted OP No.2 on 05.04.2016 as the complainant received e-mail from OP No.2 wherein OP No.2 admitted the mistake and also assured that confirmation is being sought from the official concerned but refused to replace the said mobile. Thereafter, the complainant has been in regular touch with OP No.1 and every time he was informed that the matter will be resolved but till date the complainant never received any call from OP No.1. The complainant contacted OP No.3 who stated that the phone ordered by the complainant was sold off at China and the same has been replaced with another phone which is out of warranty and have storage of 16 GB instead of 64 GB. OP No.1 refused to entertain the claim of the complainant as they are not responding to e-mails or calls of the complainant. Hence this complaint for giving directions to the OPs to either replace the mobile phone or to refund the actual amount of the mobile set; to pay him Rs.1,00,000/- for harassment and mental torture and Rs.22,000/- as litigation expenses.
3. As per the India Post Tracking Report notice was delivered upon OP No.1 and 2 on 07.09.2016 and 08.09.2016 respectively, however, none appeared for them. Hence both these OPs were proceeded against ex-parte vide order dated 03.11.2016.
4. OP No.3 filed reply in which it has pleaded in the preliminary objections that the phone in question was initially sold at a store in China with IMEI No.358767057560395 which was replaced by a new phone with IMEI No.358777058579021. The mobile with IMEI No.358767057560395 has been sold through OP No.1 to the complainant and OP No.3 has no contribution in this transaction. On merits, it is pleaded that the dispute of the present complaint relates to OP No.1. OP No.3 is not liable to any act done by OP No.1 and 2. Thus, denying any deficiency in service on its part, OP No.3 has sought dismissal of the complaint.
5. In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of order confirmation Ex.C-1; tracking details Ex.C-2; receiving detail Ex.C-3; invoice Ex.C-4; e-mails Ex.C-5 and C-6; reply Ex.C-7; seller reply Ex.C-8 and E-mail Ex.C-9. In rebuttal counsel for OP No.3 tendered in evidence affidavit of Priyesh Poovanna, its Country Legal Counsel Ex.OP-3/1 and copies of Policy and limited warranty Ex.OP-1.
6. It has been argued by the complainant that despite exchange of repeated e-mails with the complainant and OP No.1 and 2 the matter has not been resolved. He has booked the mobile for himself and has been facing lot of harassment as the phone which was delivered to him by the OP No.1 and 2 was broken and the invoice was on the name of some other persons. The complainant has thus prayed that his complaint may be allowed and the amount which he has paid to the OP No.1 be got refunded alongwith compensation for harassment and mental agony and litigation expenses.
7. On the other hand, the learned counsel for the OP No.3 has contended that it has been un-necessarily dragged in the controversy as OP No.3 has no role in the entire transaction. Learned counsel for OP No.3 has further argued that there is no deficiency in service on the part of OP No.3 and the complaint may be dismissed against OP No.3.
8. We have gone through the pleadings, evidence and heard the oral submissions addressed by the complainant and learned counsel for OP No.3. The complainant had booked the mobile with OP No.1 vide order dated 31.03.2016 Ex.C-1 for Rs.12,509.10. The complainant received the courier vide Ex.C-3 and on opening the packet found that the invoice was on the name of one Sriram M of Bangalore and the mobile phone was also broken. The complainant immediately wrote e-mail to the OP No.1 who took up the matter with OP No.2 i.e. the seller. The complainant was informed through various e-mails that the matter would be resolved and ultimately vide e-mail dated 28.05.2016 refused to entertain the claim of the complainant. Earlier to it vide e-mail dated 04.04.2016 Ex.C-7 and e-mail dated 05.04.2016 Ex.C-8 the OP No. 1 and 2 have admitted the lapse on their part and assuring the complainant that the matter would be resolved. OP No.1 and 2 have not appeared in the person despite receipt of notice from this Forum. Their non appearance shows that they have nothing to say in support of their case and the averments made by the complainant have remained unrebutted. Thus, we hold that the complainant has been successful in proving the case of deficiency in service on the part of OP No.1 and 2 only as we found that OP No.3 has no role in the entire transaction. The mobile was booked with OP No.1 and it was delivered to the complainant by OP No.2. As such we find no deficiency in service on the part of OP No.3.
8. Accordingly, in view of our aforesaid discussion, we direct OP No.1 and 2 to refund to the complainant Rs.12,509.10 (Rs. Twelve thousand five hundred nine and paise ten only) i.e. the sale consideration of the mobile phone alongwith interest @ 12% per annum from 31.03.2016 till the date of actual refund. We also find that complainant is entitled to a lump sum compensation of Rs.10,000/- (Rs. Ten thousand only) on account of mental agony, harassment and litigation cost The present complaint stands allowed accordingly.
The OP No.1 and 2 further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realisation.
The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 21.08.2017
(A.P.S.Rajput)
President
(Mrs. Natasha Chopra)
Member
