Date of Filling:      18.01.2018

                                                                                                                       Date of Disposal:  18.01.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

THIRU.  J. JUSTIN DAVID, M.A., M.L.                                         .…. PRESIDENT

TMT.      K. PRAMEELA, M.Com.                                                  ….. MEMBER-I

THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.                          ..… MEMBER-2

CC.No.07/2018

Friday the 18^th  DAY OF JANUARY 2019

M.Sundararajan,

S/o.A.Madhavan,

New No.13, Old No.3 F2, First Floor,

Pritivipakkam Main Road,

Ambatture Chennai -53,

Ambattur Taluk,

 Tiruvallur District,

Tamil Nadu.                                                                  …..Complainant.

                                             //Vs//

1.Paypal India Private limited,

   Rep.by its Branch Manager,

   No.334, Futura It park Block A,

   Old Mahabalipuram Road,

    Sholinganallur, Chennai,

   Tamil Nadu,

2.Mintkart India Private limited,

   Formerly eBay India Private limited

Represented by Mr.Shabeer Mohamedappa,

   No1261, 6^th Floor,

   Building No. 12, Solitaire corporate part,

   No.167, Guru Hargovindji Marg,

   Andheri east, Mumbai -400 093,

  Maharashtra, India.

3.Mohammed wasim,

   38/1/1, Mominpore Road,

   Kolkata-700 023, West Bengal.                                 …..Opposite parties.

This Complaint is coming on for final hearing before us on 21.12.2018 in the presence of M/s. K.M.Damodaran, counsel for complainant, opposite party called absent for non appearance and set ex-parte, perused complainant’s side documents, and hearing the arguments on the side of the complainant, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU. J. JUSTIN DAVID,  PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite parties seeking direction to return a sum of Rs.22,786/-and to pay a sum of Rs.2,00,000/-towards compensation for mental agony  to the deficiency in service and Rs.50,000/-towards cost.

2.The brief  facts of the complaint are as follows:-

 The 1^st opposite party is the authorized dealers of the 2^nd opposite party in the name of Paypal India private limited in and around at Tamil Nadu.  The 2^nd opposite party is marketing and shipping of Mobile Phones and its accessories in the name of Mintkart India private limited in and around at India.  The 3^rd opposite party is the seller of the Mobile Phones and its accessories and selling the I-phone 5S in e-bay online shopping portal through courier.   The complainant has placed order in online portal through the 1^st opposite party to the 2^nd opposite party for purchasing of I-phone 5S Mobile.  The 2^nd opposite party sent a e-mail to the complainant for the order confirmation vide confirmation of the ebay order on 05.10.2016 and the cost for I-phone 5S Mobile is Rs.22,786.00/- by way of cash at the time of delivery and sent a e-mail to the complainant on 07.10.2016 for the product Apple i-phone 5S has been shipped through the Blue Dart Courier with Airway Bill.  On 13.10.2016 again the 2^nd opposite party sent an e-mail for the delivery status to the complainant.  The complainant received the apple I-phone 5S Mobile through courier and its details are claim ID No.2349005 paisa pay ID No.43825373530, item No.112125163996, SR. No.1-118741430502, Seller IDPhoju-jwhnqi, date claim opened on 25.10.2016.  After receipt of courier, the complainant opened the parcel and shocking due to the ordered product is absolute duplicate  fake mobile. Immediately the complainant has to inform to the 2^nd opposite party sent an e-mail for further action has been requested on ebay Guarantee claim 2439005 and on 31.10.2016 against the 2^nd opposite party sent an e-mail for the complainant’s query.  On 21^st June 2017, the complainant received a mail from Mr.Pravin Wagh and the opposite party denies the complainant’s claim and sent the opposite party’s seller contact details i.e. the seller name Mr.Mohammed Wasim, e-mail ID.phone , phone 7278346476.  On basis of the contact details on 27^th June 2017 the complainant has sent a mail to Mr.Pravin Wagh.  The complainant’s continues calling to the 3^rd opposite party was not responding any phone calls.  On 31^st July 2017 Mr.Subhaprakash has sent a reply for the complainant’s complaint, that the 2^nd opposite party review of the complainant’s escalation, the 2^nd opposite party has found that this escalation is out or our eligibility criteria and the 2^nd opposite party deny the escalation. On repeated demand and communications through e-mail, the opposite parties are not solved the complainant’s claim. Hence the complainant served a legal notice to the 2^nd opposite party, which was received by the 2^nd opposite party and he was refused to the complainant’s claim. Hence this complaint is filed.

3. In spite of notice duly served to the opposite party from this Forum, the opposite parties neither appeared nor represent through counsel though sufficient opportunity is given.  Hence the opposite parties were set ex-parte.

4. On the side of the complainant, the complainant filed proof Affidavit in order to substantiate his case and Exhibit A1 to A18 are marked on his side. Written arguments filed and oral arguments also adduced on the side of complainant.

5. In such circumstances, this Forum decided to conclude this matter fully on merits with available evidence and documents putforth before this Forum though the opposite parties were set Ex-parte.

6. At this juncture, the points for determination before this Forum are as follows:-

1. Whether there is any deficiency in service on the side of the opposite party as alleged in the complaint?

2. Whether the complainant is entitled for compensation for mental agony and loss of work?

3.   3.To what other reliefs, the complainant is entitled

7.Point No:1and2:-

The complainant in the complaint and in the proof affidavit alleged that the complainant placed an order in online for purchase of I-phone 5S mobile from the 2^nd opposite party through the 1^st opposite party on 05.10.2016, that the complainant received the apple I-phone 5S mobile through courier service on 25.10.2016, when the complainant opened the parcel and found a duplicate mobile and in turn the complainant has informed the same to the 2^nd opposite party and the 2^nd opposite party through e-mail directed the complainant to contact the 3^rd opposite party.  But the 3^rd opposite party was not responding any phone calls and therefore the complainant sent e-mail to the 2^nd opposite party grievances officer.  But they have not solved the complainant problem.  There was no response from the opposite parties and thereby caused mental agony and hardships to the complainant which clearly amounts of deficiency in service.

8. It goes without saying that, it is bounden duty of the complainant to prove the allegations made in the complaint against the opposite parties by means of relevant evidence though the opposite parties were remained set ex-parte. The complainant has filed Ex.A1 to Ex.A18 to prove the allegations stated in the complaint.  Ex.A1 is the COD ebay and Ex.A2 is the order statement issued by the ebay and Ex.A3 is the confirmation order issued by the ebay.  The complainant has paid Rs.22,786/- for purchase of apple 5S smart I-phone mobile on 05.10.2016.  The above document proved the same.

9. The complainant has received a Mobile Phone on 25.10.2016 through courier service.  Ex.A5 shows that the phone has been delivered to the courier service on 13.10.2016 and the complainant received the same on 25.102016.  The complainant alleged that on opening the parcel the complainant found the duplicate Mobile Phone and the complainant has sent an e-mail on 25.10.2016.  Ex.A7 is the copy of the e-mail dated on 25.10.2016 and Ex.A8 is the guarantee claim letter issued by the ebay dated 29.10.2016.  In Ex.A8 the opposite party has written as follows:

As per our telephonic conversation on 29.10.2016, we have registered your claim and we understand that you have received this item which is not as described/not working.  For the resolution of your claim, we request you to provide clear images of the product that you have received.  Please ensure that the size of images is less than 5MB size so that it reaches us without any difficulty From the above document this forum came to know that the complainant has proved that the mobile phone received through courier and it was not working from the date of receipt of the product and therefore the complainant has raised the dispute in respect of sending the defective product.

10. Thereafter the complainant issued repeated e-mail to the 2^nd opposite party and the 2^nd opposite party directed the complainant to approach the 3^rd opposite party.  But 3^rd opposite party was not responded and therefore the complainant issued legal notice to the 2^nd opposite party which is marked as Ex.A15, in which the complainant counsel has stated as follows:-

On 1^st August2017, my client sent a mail to Mr.Subhaprakash insellerverification   ebay.com, , and Customershop for the same and the following reasons my client has decide to moving in the legal proceeding as against to your firm

1) Seller was not response in my call.

2) My client did not have any direct dealing with sellers.

3) My client made complaint with the timeline.

 4) My client received good did not matched as imaged or classified product in ebay website because of my client receive as duplicate  or dummy I-phone.

 5) Already 9 months is gone in my client’s complaint.

 While that being too so, you are called upon to hand over the original I-phone 5S to my client’s hand, in a week’s time from the receipt of this notice, failing which, my client will be compelled to file a suit against you for the enforcement of the same, and you will be held liable for all the cost incidental thereto.

11. In such circumstances, from the evidence of the complainant it is crystal clear that the complainant has proved the allegations made in the complainant against the opposite parties by means of acceptable and reliable documents.  Whereas, in spite of Ex.A15 legal notice sent to the 2^nd opposite party, the opposite parties kept silent and not come forward to comply the demand of the complainant nor to sent any reply in order to deny the allegations made in Ex.A15.  Moreover, after filing of this complaint before this Forum, though the notice sent from this Forum to the opposite parties they are not chosen neither to appear before this forum nor to represent through any person and therefore they were set ex-parte.  From the non appearance of the opposite parties it can be clearly understand that the opposite parties has no valid reason to rebut the claim of the complainant. Hence there is deficiency in service on the part of the opposite parties. Because of the deficiency in service the complainant has sustained mental agony therefore the complainant is entitled for compensation.  The complainant is not entitled for refund of the cost of mobile but the opposite parties are liable to rectify the defects in the iphone.  Thus the point No.1 and 2 are answered accordingly.

12. Point No.3:-

In the result, this complaint is allowed in part.  Accordingly, the opposite parties 1to3 are jointly and severally directed to rectify the defect in I-phone 5S mobile on free of cost, directed to pay a sum of Rs.20,000/-(Rupees twenty thousand only) towards compensation to the complainant for causing mental agony and hardships due to the deficiency of service on the part of the opposite parties and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards cost of litigation to the complainant.  Regarding other relief sought in the complaint is dismissed.

The above  amount shall be payable with two months from the date of receipt of the copy of this order, failing which, this said amount shall carry interest at the rate of 9 percent per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 18.01.2019.

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MEMBER-II                         MEMBER-I                                         PRESIDENT

List of document filed by the complainant:-

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     MEMBER-II                          MEMBER-I                                        PRESIDENT