DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 187 of 04-03-2014

Decided on 20-05-2014

Vinod Chowdhary aged about 30 years, S/o Sh. Bhagat Ram Arora, R/o Street No. 1, Bibi Wala Road, Bathinda, Tehsil & District Bathinda.

…...Complainant

Versus

Ebay India Pvt. Limited, 14th Floor, North Block, B-Tech Park, Western Express Highway Goregaon (East), Mumbai, though is Authorized Signatory

HTC Global Services India Pvt. Ltd., Unit 25, SDF II, Phase II, MEPZ, Tambaran Sanatorium, Chennai 600 045, Tamil Nadu.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Smt.Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

For the Complainant : Sh. Rohit Sharma, counsel for the complainant.

For the opposite parties : Exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

The instant complaint has been filed by the complainant 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 19-5-2013, the complainant ordered a smartphone new HTC Sensation XL 16 GB 3G 1.5 GHz 4.7” S-LCD Android V4/0 8 MP Smartphone ; Item – 350798231864 ; Sale price - $ 207.50; Quantity -1; Sale Date – May 19,2013, 19:57:37 PDT; Seller – Cellphoneforever, with opposite party No. 1 website for online shopping, manufactured by opposite party No. 2 . On 30-5-2013, the complainant paid US$ 222.50 i.e. an amount of Rs. 13,037.62, through online payment using his credit Card. The complainant alleged that he received the said phone on 17-6-2013 through Indian Postal Mail and he was asked to pay Rs. 2122/- more as custom duty whereas the same has to be paid by opposite party No. 1. However, the complainant paid the said amount to the delivery man of Indian Postal Mail. The complainant alleged that after receipt of mobile phone in question, when he inserted the SIM card in the same, he found that the mike/speaker of the mobile phone was not working. Accordingly, the complainant intimated, the opposite party No. 1 regarding the defect as at the time of ordering/selling the product, authorized/empanelled seller of opposite party No. 1, Cellphoneforever of Hongkong assured the complainant that in case any fault is found in the product in question, the same would be replaced with new one. The authorized/empanelled seller of opposite party No. 1, Cellphoneforever of Hongkong asked the complainant to return the product in question and the refund of entire money spent by the complainant will be made to him. On 19-7-2013, the complainant sent back the aforesaid product to authorized/empanelled seller of opposite party No. 1 through DTDC courier service. The complainant alleged that on 31-06-2013, he received a e-mail from the authorized/empanelled seller of opposite party No. 1 vide which it was informed to him that the entire amount of the product will be refunded on receipt of product. The complainant on 31-6-2013, sent proof of delivery of the said product and to the authorized/empanelled seller of opposite party No. 1 and it agreed to pay US$ 245.5 to the complainant. The complainant further alleged that the authorized/empanelled seller of opposite party No. 1 informed the complainant that it is only liable to pay US$ 245.5 instead of US$290, as the custom duty, shipping charges will be deducted. The complainant further alleged that he agreed for the refund of US$ 245.5 but thereafter the authorized/empanelled seller of opposite party No. 1 neither sent reply to the e-mail of the complainant nor paid single penny to him. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to refund the cost of mobile phone in question with shipping and custom duty charges paid by him and pay him compensation and cost.

Registered A.D. Notices of the complaint were sent to the opposite parties. None appeared on behalf of opposite party No. 1 despite service of notice and the notice sent to opposite party No. 2 was received back undelivered with the refused remark of the postal authorities. Thus, both the opposite parties were proceeded against exparte.

The complainant led exparte evidence in support of his pleadings.

Arguments advanced by the learned counsel for the complainant heard at length. Record alongwith written submissions submitted by the complainant perused minutely.

The submission of the learned counsel for the complainant is that the opposite party No. 1 empanels the seller/vendor and all the sellers are very much in its control. The opposite party No. 1 regularly sends mails to many/numerous persons and assure 100% ebay guarantee/satisfaction/replacement/refund. The learned counsel for the complainant submitted that the opposite parties in connivance with each and other misled the complainant by making false commitments as firstly they sent the defective product to him and thereafter failed to refund the amount as per promise.

A perusal of file reveals that vide Ex. C-2 & Ex. C-3 on 30-5-2013, the complainant ordered online with opposite party No.1 for New HTC Sensation XL 16GB 3 GB 3 G GHz 4.7”, S-LCD Android V-4.0 8 MP Smartphone, Item No. 350798231864, a product of opposite party No.2 and paid US$ 222.50 i.e. Rs. 13,037.62 through MasterCard credit card ...xxx 2914. The complaint in his affidavit Ex. C-1 has deposed that after receipt of the mobile in question, when he inserted the SIM card in it, he found that mike/speaker of the mobile hand set was not working. The complainant gave intimation in this regard to the opposite parties and vide Ex. C-4, cellphoneforever, the vendor of the opposite parties sent e-mail to the complainant that the amount will be refunded to him on return on phone in question. The complainant sent back the mobile phone in question to the opposite parties through DTDC courier on 19-7-2013 vide Ex. C-11. Ex. C-9 is the proof of delivery which shows that on 27-7-2014 the product in question has been delivered at Hongkong. A perusal of evidence placed on file by the complainant reveals that complainant repeatedly requested the opposite parties to refund $ 207.5 + 18 + 20 = $ 245.5, but the opposite parties refused to refund the shipping charges on the ground that shipping fee was charged to post office. The opposite party No. 1 despite service of notice did not appear before this Forum and opposite party No. 2 refused to receive the notice. Thus, this act of the opposite parties show that they intentionally evaded the service of notice. In such circumstances, the evidence of the complainant remained un-rebutted. As the opposite parties were fully aware of the fact that the product sent to the complainant was defective one, thus intentionally not appeared before this Forum just to run away from their liabilities.

Thus, keeping in view the facts, circumstances and the evidence placed on file by the complainant, this Forum is of the considered opinion that there is deficiency in service on the part of the opposite parties firstly in sending the defective product to the complainant and thereafter not refunding the price of the mobile in question to him. The complainant has not placed on file any evidence to show that when he ordered the product in question, shipping charges were to be borne by the opposite parties. Ex. C-3 placed on file by the complainant reveals that the complainant paid US$ 207.50 as cost of the mobile hand set to the opposite parties, thus, he is entitled for the refund of the said amount.

In view of what has been discussed above, this complaint is accepted with Rs. 5,000/- as compensation and cost against the opposite parties. The opposite parties are directed to refund the price of the mobile hand set in question in Indian Rupees equivalent to US$ 207.50 considering the rate of US$ on the date of this order.

The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.

In case of non-compliance within the stipulated period, the amount payable to the complainant will yield interest @ 9% p.a. till its realization.

A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced in open Forum

20-05-2014

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh )

Member