This complaint coming up before us for hearing on 25-03-14 in the presence of Sri G.Ram Babu, advocate for complainant and of                           Sri B.S.R.Krishna Prasad, Advocate for opposite party upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Smt. T.SUNEETHA , MEMBER

            The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking directions on the opposite party to pay an amount of Rs.20,909/- towards cost of the Tablet along with interest @ 24% p.a and Rs.75,000/- towards mental agony to the complainant. 

2.   In brief the averments of the complaint are these:

          The complainant purchased Samsung Galaxy handset bearing model No.Tab3 T3118 tablet, item ID 300945652278 on 9^th August, 2013 for Rs.20,909/- basing on the offer of the opposite party through online.  The opposite party received the amount by way of EMI credit card option No.5242160000679562 (Tatinum Edge).  The opposite party sent shipping details to the complainant on 16-08-13 for paisa pay ID NO.34255100735 (courier name Blue dart and AWB No.43571724851).  The complainant did not receive the Tablet.  The complainant sent mail to the opposite party on 21^st & 24^th of August, 2013 but the item was not received.  The opposite party noted the complainant’s request under e-bay. The complainant requested the opposite party to send the amount, but in vain.  The opposite party is the authorized dealer of the Samsung phones.

The opposite party collected Rs.20,909/- from the complainant.  But failed to send the phone or refund the paid amount.  The complainant send legal notice after which the opposite party informed that they would return the amount but nothing has been done.  Thus there is deficiency of service on the part of opposite party and they are liable to compensate the complainant for the mental agony suffered.  Hence the complaint. 

3.      Version filed by the opposite party which is in brief as follows: 

        The business of the opposite party is to provide online market place through its website: www.ebay.in where buyers and sellers directly interact for sale purchase of various items thus the roll of the opposite party in such transactions is restricted to the facilitation of purchase of goods through its website.  The e-mail website facilitate the persons for receiving, storing, transforming records/information.  The intermediary status of e-bay has been upheld by the Hon’ble Supreme Court of India, exemption of liability of intermediaries U/s.79 of Information Technology Act,2000 has also been championed in favour of E-bay India by Hon’ble District Consumer Forum, Mysore and Bathinda Consumer Forum recognized the opposite party status as intermediary in Pradeep bansal Vs e-bay India that no liability can be fixed on the opposite party as per Sec.2(W) of the I.T.Act,2000.  In the user agreement of the opposite party it was stated that e-bay is not and cannot be a party to or control in any manner any transaction between two users of the e-bay website and it does not sell the items or possess, inspect, guarantee the condition/delivery of the item.  The refund of the cost of the item Rs.20,909/- has been processed on           05-10-13 to the complainant and the receipt of such amount was confirmed by the complainant.  Therefore, the Forum may be pleased to dismiss the complaint with costs.

4.      The complainant and opposite parties filed their respective affidavits. Exs.A-1 to A-3 was marked on behalf of the complainant and   Ex.B-1 to B-3 are marked on behalf of opposite party .

5.   Now the points that arose for consideration in this complaint are:

1. Whether the complainant approached the Forum with clean hands?

1. Whether there is any deficiency of service on the part of opposite party and to what relief ?

6.      POINT NO.1: -

          The allegation of the complainant is that the complainant did not receive the Tablet, Samsung Galaxy he purchased through online for Rs,20,909/-  from the opposite party,s public offer .  The complainant further alleged that inspite of several reminders and requests the opposite party neither send the item nor refunded the cost  paid ,to the complainant.

          In 3(b) of the complaint dated 07-10-13 the complainant stated that “the complainant requested the opposite party on 28-08-2013 i.e., item not received refunds. But in vain .

The opposite party is the authorized provider to the Samsung Phones.  Subsequently, the complainant login to the opposite party website for solving this problem, for opposite party did not choose to refund the money in time and postponing the same of one pretext or the other. 

        The complainant in his affidavit dated 05-12-13 in para No.5 prayed the Hon’ble Forum ,to order the opposite party to pay the amount Rs.20,909/- to me, order for compensation as mentioned in the complaint.  Interest @24% p.a on claim amount from the date of operations (from 09-08-13 to 04-10-13). For costs of the complaint; and to pass such other necessary orders that the Hon’ble Forum deems fit and proper under the circumstances of the complainant in the interest of justice.

        The opposite party stated in its version that they have send the cheque for an amount of Rs.20,909/- to the complainant on 05-10-13 and the receipt of cheque was confirmed over the telephone call by the complainant and there by the grievance of the complainant been addressed. The complainant filed memo on 12-03-14 stating that the  the complainant received the amount which was refunded by e-Bay India  private ltd on 07-10-2013. But the complaint prays that the Hon’ble Forum to pleased  to order  for compensation and pass  such other necessary orders in the interest of justice. 

        From the above matter it is learnt that the complainant received amount for Rs.20,909/- towards item cost from the opposite party on 07-10-13. Having received the amount from the opposite party the complainant suppressed the fact and filed complaint on the same day before the Forum with false allegation that the opposite party neither send the tablet nor refund the amount. The complainant ought to have disclosed the receipt of the amount from the opposite party and should have prayed for ordering the compensation and costs of the complaint.  It is clear that the complainant approached the Form with unclean hands.

    National Consumer Disputes Reddressal Commission in Tata Motors Ltd & Anr  Vs Hasoor Maharaja Baba & Anr (2o13(4)cpr272(NC) held, One who does not come to Court with out clean hands and with holds vital documents  in order to get advantage of other side he  would be guilty of playing fraud on Court and has no right to approach Court”.

        In these circumstances ,the Forum opines that the complainant did not approach the forum with clean hands . Therefore he is not entitled to any relief from the opposite party.

7.      POINT NO.2&3:    Since the complainant approached the Forum with false allegations, suppressing the facts ascertaining deficiency of the opposite party is not proper and the  complainant is not entitled to any relief from the opposite party.

8.     In the result, the complaint is dismissed without costs. 

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 2^nd day of April, 2014.

Sd/- XXX                                       Sd/- XXX                                            Sd/- XXX

     MEMBER                                      MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:   

                                                                                                      Sd/- XXX

                                                                                      PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.