CONSUMER DISPUTES REDRESSAL FORUM,PALAKKAD
Dated this the 30th March, 2016
PRESENT : SMT. SHINY.P.R, PRESIDENT
: SMT. SUMA. K.P, MEMBER
: SRI. V.P.ANANTHA NARAYANAN Date of filing : 7/03/2014
CC /34/2014
Ummer Farook
“Ishan”, A-17-A,
New Civil Nagar,
Palakkad – 678 001 : Complainant
(By Adv.C.Madhavankutty)
Vs
1. The Managing Director.
eBay, Inc e Bay India Pvt.Ltd, : Opposite parties
14th Floor, North block,
R-Tech Park,
Western Express Highway,
Goregaon East, Mumbai
Pin- 400 063
(By Adv.Saju Abraham.T)
2. Sushil Kumar Nagpai,
Block-s, House No.93,
Gurgaon, HR 122001
O R D E R
By Smt. Suma. K.P, Member,
The complainant for his personal use in his house had made an online purchase from the opposite parties website eBay for a Samsung 46 inch UA 46 f6 400 3D LED TV with 1 year SERVPRO India onsight warranty on 20th August 2013 at 2.47 IST. Accordingly the complainant had effected entire payment for the product to the tune of Rs.72,368/- through his credit card charged in 12 equal monthly installments and additional amount of Rs.5,788/- towards convenience charge (including service charge) this additional amount is also charged in 12 equal installments. The monthly installment amount will appear in the credit card statements of the complainant. The customer item I.D for tracking the purchase from the opposite party is /20952835711. As per the terms of the contract of purchase displayed on the opposite parties website, after confirming and purchasing the item, the opposite parties are bounded to ship the item on or before 27th August 2013 . But inspite of several messages and emails on the part of the complainant the opposite parties did not ship the item. Instead on 26th August 2013 had send a message that the opposite party is unable to ship the item by 27th August 2013 and had initiated refund infavour of the complainant. On the same day the opposite parties also sent another message “Please Don’t give negative feed back Government Policy Changed”. The complainant believes that the act on the part of the opposite parties after receiving entire payment displayed and demanded on the website they have purposefully deviated from the contract for reasons which the opposite party has not disclosed to in full, amounts to violation non performance and default of contract on the part of the opposite parties because of which the complainant had sustained huge financial loss and also mental agony for which the opposite party is liable to compensate.
The complainant made the onetime purchase through the website of the opposite parties, only because of the promise made by the opposite party that they will supply the above mentioned Samsung TV for Rs. 72,358/-. Moreover the complainant had made a credit card purchase and he is liable to pay interest to his bank for the purchase made, that to without getting the product from the opposite party. The opposite parties has not cared for the refund of the amount eventhough they had promised for the same. The act on the part of the opposite parties amounts to deficiency of service and unfair trade practice for which they are liable to compensate for all the mental agony stress and strain suffered by the complainant.
If the complainant needs to purchase the same model TV from a retail outlet he needs to pay a higher and more sizeable amount which is again a great loss for him. Therefore the complainant had approached before this forum seeking an order directing the opposite parties to deliver the Samsung model TV with one year warranty or in default to pay Rs.78,156/- with interest @ 14% p.a. along with Rs.16,000/- towards compensation for the mental agony and Rs.5,000/- towards the cost of this litigation.
Notice was issued for to the opposite party for appearance. Opposite parties entered appearance and filed version denying all the allegations in the complaint.
It is submitted that the opposite party is a company registered under the Companies Act, 1956 having its registered office at 14th Floor North Block, R-Tech Park, Western Express Highway, Goregaon (East), Mumbai – 400063. It is submitted that the business of the opposite party is to provide an online-market place through its website www.ebay.in (hereinafter referred to as the “eBay Website”). The eBay Website is an online platform where buyers and sellers directly interact for sale-purchase of various items, thus the role of the opposite party in such transactions is restricted to the facilitation of the purchase of goods through its website.
The opposite party states that the eBay Website is an online market place which is internet based platform and an intermediary, as defined in the Information Technology Act, 2000 as amended from time to time and that eBay Website merely facilitate to other persons for receiving, storing or transmitting records/information. It is submitted that the ‘intermediary’ status of eBay has been upheld by the Hon’ble Supreme Court of India. It is explicitly and unambiguously stated that the eBay Website neither sells the items, nor does it possess, inspect, or guarantee the condition/delivery of the item. It was further submitted that the goods sold or purchased on the eBay Website are owned by the respective third parties sellers and buyers and thus the property of respective sellers and buyers and the eBay Website is merely an intermediary. It is stated that the role of eBay Website is to act as an objective facilitator. The products and services listed on the eBay Website belong to the sellers and during the course of entire transaction title of the goods and services remains with the respective registered sellers and buyers.
It was also 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.
It was further submitted that the eBay Guarantee Program(“eGP”) provides the terms and condition for registering a claim for the replacement/refund of product purchased. It is pertinent to note that this service of Buyers-Seller protection is a gratuitous service provided by the opposite party. The claim redressal process that the opposite party follows with each of its buyers and sellers is a two-step process where firstly a claim has to be registered with the opposite party and secondly upon receipt of such claim/complaint, where required, the opposite party coordinate with the respective buyer and seller and thereafter, the opposite party would look into the genuineness and/or validity of such a claim and process accordingly. It is submitted that this program forms an integral part of the User Agreement which the Buyer and Seller are bound by from the time of registration. It is submitted that the Buyer is bound by the User Agreement from the point of commencement of the transaction and/or when the Buyer agrees to purchase the product. Consequently, the complainant is bound by the terms of the program.
Without prejudice, it is stated that post investigation of the claim filed by the complainant under eGP, the refund if cost of the item, i.e.INR72,358/- has been processed to the complainant on August 28,2013, as per the records of the opposite party. Therefore complainant grievance has already been redressed. Given this, the present complaint is liable to be dismissed forthwith. It was also submitted that no consideration was taken by the opposite party at the time of the transaction in question for participating in the transactions or otherwise using the services of the eBay Website. The online automated platform provided by the opposite party was provided to the complainant free of charge and therefore cannot be held to be ‘service’ as defined under Section 2 (o) of the Consumer Protection Act, 1986.
Without prejudice to the aforementioned preliminary objections and submissions, at the outset, it is submitted that the purchase of the item was made by the complainant upon an offer made by the Seller of the item and not the opposite party. The delivery of the item was to be concluded by the Seller since the User Agreement clearly states that only the Buyer and the Seller share a contractual relationship under the Agreement. It is submitted that the seller is an independent seller selling product(s) on the opposite party’s website. Thus, the transaction in question is between the complainant/Buyer and the seller, and the opposite party is unrelated to the transaction.
It was submitted that the complainant in his complaint has alleged non-delivery of the item. Being aggrieved he sought to get a refund through the opposite party from the seller. It is reiterated that this refund of INR 72,358/- has been processed and consequently the present complaint is but an afterthought and a strategy to unduly extract money out of the opposite party. Moreover, the Seller of the product has not been duly impleaded by the complainant. The seller in the instant case is a necessary and proper party in the present proceedings. Clearly, the present case is that of misjoinder of party since the necessary party with whom the complainant transacted i.e. the Seller has not been impleaded by the complainant. It is submitted that no cause of action arose against the opposite party as the product in question was purchased by the complainant from the seller. All the services provided by the opposite party to the present complainant was free of cost and there has been no deficiency because eBay Website was functioning properly and the complainant’s eGP claim was handled as per the pre notified policy of eBay Website which was agreed and accepted by the complainant. Consequently, the present complainant deserves to be dismissed in limine on this ground alone.
Complainant filed application to implead seller as supplemental 2nd opposite party as per the version of the opposite party and for consequential amendmend. Application was allowed and notice was issued to supplemental 2nd opposite party. Notice against supplemental 2nd opposite party returned. Hence complainant filed application for substituted service. Application was allowed and complainant produced paper publication against 2nd opposite party. 2nd opposite party was called absent and set exparte. Complainant filed chief affidavit. 1st opposite party filed application for cross examination of complainant. Application was allowed but complainant was not present for cross examination.
Ext.A1series was marked from the part of the complainant . Ext.B1 and B2 was marked from the part of opposite party. Evidence was closed and the matter was heard.
The following issues are to be considered.
- Whether there is any deficiency of service on the part of the opposite party?
- If so, what are the reliefs and cost?
ISSUES 1 & 2
We had perused the documents as well as affidavit produced before the forum. In the affidavit filed by the complainant he had admitted that he received the refund of the cost of the item of Rs.72,358/- from the opposite party. His only grievance is that he had received the amount only after a lapse of 3 months that too without any interest. If he had to purchase the same model TV again from retail outlet he needs to pay a higher and more sizeable amount which will create a great loss for him. OP1 has contented that since he is only an intermediary he had to be exonerated from the liability. 2nd opposite party remains absent. The complainant submits that he had made a credit card purchase and he is liable to pay interest to his bank for the purchase made without getting the product from the opposite parties. In the above circumstances we direct supplemental 2nd opposite party to pay 6% interest for the afore said amount of Rs.72,358/- for 3 years (From 2013 August onwards) . 1st opposite party is exonerated from the liability. We direct the supplemental 2nd opposite party to pay Rs.13,000/- (Rupees Thirteen thousand only) as interest for the aforesaid amount of Rs.72,358/- (Rupees Seventy Two thousand three hundred and fifty eight only) for 3 years along with Rs.2,000/-(Rupees One thousand only) as compensation for the mental agony suffered by the complainant along with Rs.1000/- (Rupees One thousand only) as cost of this litigation. The aforesaid amount shall be paid within one month from the date of receipt of this order failing which complainant is entitled to get 9% interest for the whole amount from the date of order till realization.
Pronounced in the open court on this the 30th day of March, 2016.
Sd/-
Shiny.P.R
President
Sd/- Suma. K.P
Member
Sd/-
V.P. Anantha Narayanan
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1 series –Copy of Regd.notice and ack.card is sent by Adv.C.Madhavankutty to the op dtd.13/09/2013
Witness marked on the side of complainant
Nil
Exhibits marked on the side of opposite party
Ext.B1 - Attested copy of User agreement 10 pages
Ext.B2-Attested copy of eBay Guarantee 5 pages
Witness examined on the side of opposite party
Nil
Cost Allowed
Rs.1000/- as cost.
