Date of Filing: 30.07.2015

       Date of Order: 17.05.2016

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 17^TH DAY OF MAY 2016

PRESENT

SRI.SYED ANSER KHALEEM, B.SC., B.Ed.,LL.B.,PRESIDENT

SRI.H.JANARDHAN,B.A.L, LL.B., MEMBER

SMT.BHARATI.B.VIBHUTE, B.E(I.P.) LL.B., MEMBER

COMPLAINT NO.1410/2015

SRI Ranganthan Mathur,

S/o Sri M.R.V.Raghavan,

Flat 12, Tower 1,

Peeble Bay Apartments,

RMV 2^ND Stage,

Bangalore-560 094.                                 Complainant

V/s

1. EBAY INDIA PVT. LTD.

14^th Floor, North Block,

Western Expressway,

Goregaon (East),

Mumbai 400 063.

2. VANDANA GAUR/

GOTTAGOSHOPPING,

B-1225, Shanshtri Nagar,

New Delhi 110 052.                         Opposite Parties

ORDER

BY SMT.BHARATI.B.VIBHUTE, MEMBER

1.     The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of the O.Ps and prays for direction to the O.Ps to refund a sum of Rs.1668/- with interest at the rate of 16% p.a. from 15.5.2015 till its realization and further to pay a sum of Rs.25,000/- as damages along with 18% interest per annum from 15.5.2015 till the date of realization and also direct the O.Ps to pay the cost of proceedings.

2.   The brief facts of the complaint is that, the O.P.No.1 is the publically available information and internet/web based transaction enabling platform which acts as intermediary for bringing sale of goods to the prospective buyers to a virtual market place wherein the buyer pays for the goods through one of various forms of money transfer online.  The seller of the product on notification of such payment by E-bay ships the goods to the buyers.  In all its published materials, solicitations and transaction sites     E-bay advertises 100% guarantee of the delivered products sold through its web site. The complainant further submits that the seller, is the O.P.No.2 is a business based in Delhi and operating with a net ID “GOTTAGOSHOPPING” had advertised in the website of O.P.No.1 that there is discount for men cologne spray – Calvin Klien CK 200 Ml if the same is purchase on or before May 14^th 2015 vide item NO.281527873840 for a price of Rs.1,668/- inclusive of delivery charges to the buyers address.  The packaging as well as the selection of the courier service was entirely at the discretion of the seller. 

3.     The complainant further submits that, in response to the advertisement that, the complainant had purchased men cologne spray -Calvin Klien CK 200 ml item through a web transaction and made a payment of Rs.1,668/-. However, the complainant submits that, the O.P.No.1 on receipt of the payment made by the complainant has notified the seller O.P. to ship the goods.  Further on 22.5.2015 a package was delivered to his residence through courier. The complainant opened the package and found that, the outer carton was damp and on partial opening, the complainant could hear broken glass inside the bubble wrap.  The complainant further submits that, on receipt of the parcel he had called the seller O.P.No.2 on the very same day and informed him about the broken bottle and asked him to send a replacement.  The O.P. informed the complainant that the complainant needs to file a claim with O.P.No.1 and they will handle the claim.  Thereafter contacted the O.P.No.1 over telephone and sent the details about the broken glass and also other aspect by sending an email.  The O.P.No.1 sent a reply on 23.5.2015 assigning a claim No.1011628 and asked the questions by delivered package. The complainant submits that, on 24.5.2015 he responded to the email sent by the O.P.No.1 by providing answers to their questions and also sent the pictures of the package.   To the shock and surprise of the complainant he received an email on May 28^th 2015 from the O.P.No.1 stating that they had analysed and rejected the claim because the JPEG images were not received by 24.5.2015.  The complainant  further submits that he had contacted the O.P.No.2 on 26.5.2015 by phone and explained to him the situation at length and the O.P.No.2  asked the complainant to send the copies of all the correspondence with O.P.No.1 and also the photographs.  The complainant sent all the details to the O.P.No.2 by email.  The O.P.No.2 after having reviewed the documents and photos told that it is the fault of the O.P.No.1 that, the product in question was broken and as such they are responsible for the guarantee.

4.     The complainant further submits that, on 1.6.2015 he had contacted the O.P.No.1 and explained the history of the claim and requested them to reopen the claim of the complainant. O.P.No.1 given a advertisement in web site and through extensive media ads for public consumption that it offers a 100% satisfaction guarantee or refund/replace smacks of unfair trade practice and fraud. The  O.P. No 1 is required to fulfill its promises so widely made to the public without any limitations. The O.Ps have deliberately done these misdeeds with an intention to make unlawful gain. The O.Ps have played fraud on this complainant. The action of the O.ps in this matter nothing but its deficiency in service and the complainant is a consumer as defined under the Act.  The cause of action arose for this complaint on 15.5.2015 the date on which the complainant placed orders by paying Rs.1,668/- to the O.P. No.1.   Hence this complaint.

5.      Upon issuance of notice, O.Ps did not appear in order to contest the case and hence the O.Ps. are placed ex-parte.

6.     To substantiate the above case, the complainant has filed the affidavit evidence along with documents.  We have heard the arguments.

7.     On the basis of pleadings of the complainant, the following points will arise for our considerations are:-

                                (A)    Whether the complainant has proved

                       deficiency in service on the part of the O.Ps?

(B)    Whether the complainant is entitled to the

         relief prayed for in the complaint?

(C)    What order?

8.     Our answers to the above points are:-

POINT (A):  In the Affirmative.

POINT (B) :  In the Affirmative.

POINT (C):  As per the final order

for the following:

REASONS

POINT  No (A):-

9.     On perusal of the averments made in the complaint, it is the specific allegation made in the complaint is that, lured by the advertisement given by the O.P.No.1 and the complainant placed the order in order to purchase the men cologne spray-Calvin Klien CK 200 Ml vide item NO.281527873840 for a price of Rs.1,668/- on 15.5.2015 and on 22.5.2015 the complainant received the said item against the payment of Rs.1,668/-.  The grievance of the complainant is that when he opened sealed pack and found that, the outer carton was damp and on partial opening, the complainant also heard broken glass inside the bubble wrap.  The complainant further submits that, on receipt of the parcel he had called the seller O.P.No.2 on the very same day and informed him about the broken bottle and asked him to send a replacement.

10.   On perusal of the Doc.No.1 it reveals that against the placing of the order by the complainant and the O.P.No.1 by confirming the order intimated to the complainant. On perusing the copies of photographs it also discloses that the product in question broken out and the complainant rightly intimated to the O.P.No.2 and corresponded with the both the O.Ps. Ultimately, both the O.Ps did not made any efforts to replace the product in question and O.P.No.2 contended that O.P.No.1 is responsible for the said broken out item in question. 

11.   It is worth note to that, in a modern world, the         E-Commerce is  emerging rapidly and spreading out  to the nook and corner of the entire world.  As per the advertisement made in the different website by the different companies and as per requirements of the products the customers are placing the order physical verification of the products and its genuinety.  Hence, it is the foremost duty of the O.Ps to look after the genuinety of the product and to give  better services to its customers.  On the basis of the available evidence on record the placing of the order is not in dispute and also the photographs produced by the complainant clearly depicts that the broken item of the product in question. If the small customer like complainant by filing the complaint fighting his grievances against the big company, the company should come forward to settle the grievances of its customers.  When the O.Ps did not turn to settle the dispute the complainant being the last resort approached this Forum with this complaint.  It is worth to note that, the Forums functioning in order to avoid malpractices, deficiency in service by the service providers and to avoid oppressions over the customers and to give speedy justice to the aggrieved customers.  In these back drop of facts when the complaint is lodged, when the Forum notice is served on the O.Ps but the O.Ps not only negligent in attending the grievance of the complainant and also neglected to appear before the Forum to answer the claim made by the complainant.  In the attendance circumstances of the case when the allegations made in the complaint remained unchallenged and on the basis of available material evidence available on record  we have no hesitation to hold  the O.Ps are  not only deficient in their service and also they have adopted unfair trade practice. Accordingly, we answer Point No.(A) in the affirmative.

POINT  No (B):-

12.   The complainant sought for replacement of the product in question or alternatively claiming refund of the amount and cost of proceedings and the claim is justifiable one. Under the circumstances, we deem it just and proper to direct the O.Ps are jointly and severally liable to replace the product in question with a new good conditioned product of the same model or alternatively pay a sum of Rs.1,668/- along with the cost of Rs.2,000/- to the complainant. Also directed the O.Ps to pay a sum of Rs.5,000/- towards punitive damages and it shall be paid to the Consumer Legal Aid Account of this Forum and it will meet the ends of justice. Accordingly, we answer the Point No.(B) in the affirmative.

POINT (C):

13.   Based on the findings given on the point No.(A) and (B) and in the result we proceed to pass the following:

ORDER

1. The complaint is allowed in part with cost.
2. The O.P No 1 and 2 are hereby directed to replace the Item i.e. men cologne spray – Calvin Klien CK 200 Ml with new good conditioned product of the same model or alternatively pay a sum of Rs.1,668/-.

3. Further O.Ps. are jointly and severally liable to pay Rs.2,000/- towards cost of the proceedings to the complainant and also directed the O.Ps to pay a sum of Rs.5,000/- towards punitive damages and same is to be paid to the Consumer Legal Aid Account of this Forum.

4. The O.Ps is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this forum within 45 days from the date of receipt of this order.

5. Send a copy of this order to both parties free of cost.

 (Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 17^th Day of May 2016)

MEMBER                 MEMBER                PRESIDENT

*Rak