BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 07/2012 Filed on 07.01.2012

ORDER DATED: 07.05.2018

Complainant:

Sanish. S, Saji Nivas, Chempakamangalam, Korani P.O, Thiruvananthapuram.

                                       (By Adv. C.S. Raj Mohan)               

Opposite parties:

1. Manager, Ebay India Pvt. Ltd., 14^th Floor, North Block, R.Tech Park, Worli Express Highway, Gurgaon (East), Mumbai-400 063.

2. Manager, Apple India Pvt. Ltd., 19^th Floor, Concorde Tower, UB City No. 24, Vittalmallaya Road, Bangalore-560 010.

This case having been heard on 09.02.2018, the Forum on 07.05.2018 delivered the following:

ORDER

SMT. LIJU B. NAIR: MEMBER

Case of the complainant is as follows:  Complainant placed an order with E-Bay for an Apple iPhone 4, 16 GB Black unlocked with Geevy Sim with box, price for the said phone was Rs. 26,399/- and an additional charge of Rs. 500/- was given for transportation.  Assurance was given by the 1^st opposite party over e-mail that it was brand new and the said iphone can be used worldwide.  Complainant ordered the said iphone believing the words of 1^st opposite party through their advertisement on E-bay site on 30.10.2011 warranty assurance was also given by 1^st opposite party for 1 year.  On 15.11.2011 complainant received the said iphone through bludart express courier as AWB 13305747663 and the complainant paid the entire amount of Rs. 26,899/-.  After receiving the said phone, complainant tried to activate it but to his utter shock it was not working.  As it was not working complainant made some queries to Redington through e-mail and sent all the details, regarding the said phone including serial number received by the complainant.  Redington is the authorized service centre of the apple iphone and the reply from the Redington was shocking to the complainant.  Redington reply through e-mail that this phone was used one which was purchased on 07.08.2010 moreover the redington e-mail revealed that the warranty assured by the 1^st opposite party was over.  1^st opposite party purposefully committed unfair trade practice with the connivance of the 2^nd opposite party who is the Manager.  1^st opposite party made believe the complainant through e-mail that the apple iphone is brand new one, which can be operated worldwide, and having warranty for one year.  Reply from Redington revealed that the said phone is a used and having no warranty, as warranty is over as time is lapsed.  Complainant immediately contacted the 1^st opposite party and 1^st opposite party assured that they will replace the old one with new one or reimburse the amount to the complainant.  Complainant immediately return the said iphone through blue dart courier.  It was sent to the address from which it was received.  1^st opposite party’s agent informed the complainant that the parcel was received.  But till this date opposite parties never reimbursed the value of the iphone to the complainant which he had already paid.  Act of opposite parties amounts to unfair trade practice and deficiency in service.  Opposite parties are liable to reimburse the amount of Rs. 26,899/- with interest from 30.10.2011 till realization of amount. 

1^st opposite party filed version contending as follows: It is submitted that the business of the 1^st opposite party is to provide an online market place through its portal www.ebay.in.  The eBay website is an online platform where buyers and sellers directly interact for sale-purchase of various items, thus the role of 1^st opposite party in such transactions is restricted to the facilitation of the purchase of goods through its website.  It is further submitted that the contract of sale and purchase of the items traded over the eBay website is strictly a bipartite contract between a registered seller and the winning bidder/buyer and both parties are bound by the terms of the user agreement upon registration.  Furthermore, it is explicitly and unambiguously clarified and enumerated in the user agreement that eBay is not responsible for any non-performance or breach of any contract entered into between users.  The eBay Guarantee Buyer Program provides the condition for replacement of product purchased.  It is pertinent to note that this service of eGBP claim redressal process provided by 1^st opposite party follows a two-step process where firstly a claim has to be registered with 1^st opposite party and secondly upon receipt of such complaint 1^st opposite party would process the same and look into the genuineness and/or validity of such a claim.  Under the eGBP 1^st opposite party interacts with the buyer and seller as per eGBP policy and process and tries to resolve the matter.  In the event seller agrees to replace the item/product or refund the amount to buyer, 1^st opposite party communicates this buyer and assist accordingly.  In case buyer and seller both are adamant, then this opposite party requests the buyer to provide necessary document to prove that item/product sold by the seller is deficient.  Accordingly this opposite party closes the complaint either in favour of buyer or seller.  This entire process is very transparent and as per the eGBP policy which both buyer and seller are aware about before transacting on eBay website.  This opposite party further reiterates that this is gratuitous service provided by the 1^st opposite party to assist the buyer and seller resolve their dispute.  Furthermore, as per the eGBP, there are certain stipulated non-eligible transactions, for instance-if the product, when received by the seller is found to be altered/repaired/refixed in any manner, then the buyer would not be eligible for protection under the GBP.  It is submitted that the 1^st opposite party is unrelated to the transaction in question.  It is submitted that the 1^st opposite party had no control over/or to determine or to advise upon the purchase or sale of the mobile set.  Hence it is vehemently denied that 1^st opposite party connived along with 2^nd opposite party in order to commit any unfair trade practice.  It is distressing to note that despite having registered the claim and continuous follow ups undertaken by the 1^st opposite party on the dispute settlement process, allegations of unfair trade are frivolous in nature.  In fact, 1^st opposite party had repeatedly intimated the complainant of the mandate of replacement/refund where a “SNAD” complaint was registered and the importance of receipt of the mobile phone by the seller in an unaltered condition.  Further, complainant failed to provide to this opposite party any proof or document to substantiate his claim that the mobile phone was defective. 

2^nd opposite party filed version contending as follows: 1^st opposite party is not an authorized reseller of 2^nd opposite party and both the opposite parties have no relationship of whatsoever nature between them which binds the 2^nd opposite party for the alleged actions of 1^st opposite party.  Further the complainant did not have any dealing with 2^nd opposite party except that the iphone is manufactured by 2^nd opposite party.  It is an admitted fact that the complainant purchased the iphone through eBay which is an online market place where any individual can buy and sell any product.  In fact, eBay is principally used by persons who wish to sell second hand products.  It is pertinent to mention that eBay is not an authorized reseller appointed by 2^nd opposite party to sell its products.  Hence there is no legal binding relationship between 2^nd opposite party and the complainant and 2^nd opposite party cannot be held liable for the alleged sale of the used iphone to the complainant by relevant seller on the 1^st opposite party’s website.  The buyer on eBay chooses the product from the product list before they buy.  As per the eBay buyer protection policy, eBay has a process for resolution of a dispute when a buyer claims that his item was not received on the item he received was different from what was described in the listing.  It is further submitted that the parent company of 2^nd opposite party is a reputed, internationally acclaimed manufacturer of cell phones, computers and ipods with all the necessary processes in place to address and redress the queries of its customers as well as to provide all necessary assistance to its customers.  If the product were under warranty, the 2^nd opposite party would have repaired or replaced the product as per its warranty policies.  Since the product is out of warranty, the 2^nd opposite party will repair or replace the product on a non-warranty basis, that is, only upon necessary payment by the complainant.  The complainant has not requested the 2^nd opposite party to repair or replace the product on a non-warranty basis or committed to paying the applicable fees in relation to the same.  The question of any deficiency of service by 2^nd opposite party against the complainant does not arise and the complainant is not entitled for any reliefs under the Act before this Forum.  

Issues:

1. Whether the deficiency on the part of the opposite parties is proved?
2. If so, reliefs and costs if any?

Issues (i) & (ii):- Complainant and opposite party filed affidavit.  Exts. P1 to P5 were marked from the side of the complainant.  No documentary evidence is there for the opposite parties.  Complainant purchased the said phone believing the assurance given by 1^st opposite party.  Opposite party assured to give a brand new phone with 1 year warranty.  1^st opposite party submitted that the seller of the phone is ‘M/s New Mobile Gallery’ but complainant has not made dealing with New Mobile Gallery and the booking was made with 1^st opposite party and the amount was also transferred to 1^st opposite party.  Product was received with the cover of 1^st opposite party.  Phone which was sent by the opposite party was not working and it was a used phone with expired warranty.  When the phone condition was informed to the 1^st opposite party, they accepted it and agreed to reimburse the amount or agreed to give a new phone.  Believing it complainant sent back the old phone to 1^st opposite party.  After receiving the phone, till this date they neither refunded the amount nor gave a new phone.   Opposite party have sold a used phone to the complainant, after assuring him of a brand new phone of Rs. 26,399/-.  It amounts to deficiency in service and unfair trade practice.  So the complainant is eligible to get refund of the purchase price, i.e; Rs. 26,399/-.  Since the purpose for which the phone was purchased was not served, he is eligible for compensation also which we fix as Rs. 5,000/-.

In the result, complaint is allowed.  Opposite parties are jointly and severally ordered to pay the complainant Rs. 26,399/- (Rupees Twenty Six Thousand Three Hundred and Ninety Nine only) along with Rs. 5,000/- (Rupees Five Thousand only) as compensation within 2 months of receipt of this order, failing which the entire amount of Rs. 31,399/- (Rs. 26,399/- + Rs. 5,000/-) will carry interest at the rate of 9% from the date of default till the date of realization.  No order on cost.      

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 7^th day of May 2018.

Sd/-

LIJU B. NAIR                        : MEMBER

 Sd/-

P. SUDHIR                            : PRESIDENT

Sd/-

                        R. SATHI                               : MEMBER

jb

C.C. No. 07/2012 

APPENDIX

  I      COMPLAINANT’S WITNESS:

                             NIL

 II      COMPLAINANT’S DOCUMENTS:

P1     - E-mail copy of order booking dated 30.10.2011.

P2     - E-mail copy of Redington showing no warranty and purchase date

P3     - Copy of e-mail showing warranty

P4     - e-mail copy showing assurance of refund

P5     - Air way return bill copy

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

NIL

                                                                                                      Sd/-

PRESIDENT

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