KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No 409.2006

JUDGMENT DATED: 24.09.2010

Vinodkumar,SBT, Region II,Zonal Office,Ernakulam

Vs.

1. Shoeb Merchant, 13 Nakhuda Street, Madina Manzil,
2nd Floor, Pydhonie Mumbai – 400 003.

2. Chairman & Director, Ebay India (P) Ltd.,
202, “B” Wing, IInd Floor, Phoenix Mills Compound,
462, S.B. Marg, Lower Parel, Mumbai – 400 013.

This appeal prefers from the order passed by the CDRF, Ernakulam in the file of C.C. No. 572/05. The appellant is the complainant and the respondents are the opposite parties. This appeal prefers from the order passed by the CDRF. In the above case dismissed the complaint.

2. In short, on 30.07.2005 the complainant purchased a camera mobile hand set through the website of the second respondent by paying an amount Rs. 6,500/- by way of Demand Draft on 4.8.2005. Thereafter the set was supplied. The set showed defects from the second day itself and the battery was also used one. The complainant informed this matter immediately were opened a new mobile phone namely Sony Ericsson was replaced with the above said hand set by making the complaint. The additional amount of Rs. 800/- towards the total cost of Rs. 7,500/- that was paid on 16.6.2005. The seller advertised that the set was having the USB port facility. But this was also a defected set. Again the complainant requested to replace another phone. It was also stated that the another mobile set namely Sendo X Smart phone had the facility like Blue Tooth, Infra red, MP3 player, radio etc. The complainant was also asked to pay an additional amount of Rs. 1,300/- being the excess value. On receipt of the new phone it was noticed that said set was also defective one. All of the facts were also informed by the complainant to the seller. On the first opposite party expressed his inability to replace the set, but stated nothing with regard to the complaint mentioned by the complainant. He also contented that he may be able to provide a new battery as and when he gets the same. These facts were brought to the notice to the second opposite party who washed its hands by stating that they are not liable to any transaction after 2 months of the same based on the above facts a total amount of Rs. 25,000/- was claimed for the above acts which amount to a deficiency in service on the part of the opposite parties.

3. After receiving the notice the first opposite party did not appear and he was said Ex-party the second opposite party entered appearance and filed version and stated that the complaint has not availed any service for considerations from it. And hence he is not a customer. It was also contented that there is no liability for the second opposite party to replace the hand set or to compensate the complainant.

4. The evidence consisted of Ext. A1 to A4 from the part of the complainant and there is no evidence adduced on side of opposite parties. In spite of the same, the Forum below dismissed the complaint stating that the complainant has not proved his case by adducing expert evidence. The liability of the second opposite party, it was found that there is no evidence to show that it had collected any amount actually from the complainant he cannot be said to be a consumer of the second opposite party and hence he is not liable to compensate the complainant. As a result the forum below dismissed the complaint.

5. On this side this appeal came before this Commission for final hearing. The counsel for the appellant is present and there is no representation for the respondent/opposite parties. The counsel for the appellant argued the appeal on the ground of the appeal memorandum that the order passed by the Forum below is not accordance with the provisions of the social benefit legislation, the Consumer Protection Act. He submitted that the Forum ought to have been found that since there is no contrary evidence hence allegation meet to dispute contention of the complainant, allegations ought to have been upheld with the Forum. He argued that the second opposite party is dishonesty from the liability for the deficiency in service solely based his version and they gone in to the contents of the documents produced and brought by the complainant. It is submitted that the letter communications and reply sent by the opposite party is conveniently given by the Forum to dismiss the claim of the complainant. He contented that Ext. A1 document is a copy of the E mail communication between the parties and that the opposite parties have admitted the defect in this set. Hence the finding that the complainant has not proved the defect in the mobile hand set is highly preface more so without the defective set brought by the Emails that are issued by the opposite party to the complainant it stands admitted and the Forum below fundamentally to look in to the conditions of the documents which are produced and brought by the complainant for making a finding as against the complainant so as to dismiss the complaint. For this reason and so the order is liable to be set aside.

6. This Commission heard the Counsel for the appellant and the respondents are absent and there is no representation. Perused the entire case records available from the case bundle. It is seeing that it is a E-purchase done by the complainant. Almost all the countries the new generation is purely depending upon the e- transactions for their day to day life. But unfortunately in the state both the E-systems and manual systems are jointly going on. The defect of this parallel systems, the object of the modernization of the entire systems are not fulfilled up to the target. In certain cases both collided each other. In certain circumstances it is not possible to say which is reliable. It is quiet unfortunate. We have want either a fully modernization or parallel manual system. In a developed country likeIndia, e- Mail is a legal communication as per the Cyber Acts. As per the Ext. A1 to A3, it is showing that the defects of the Mobile set supplied by the opposite parties is correct and admitted. In these circumstances it cannot be say that the complainant must be taken any steps to appoint an expert to examine the set.

7. In this case, there is no expert evidence to prove the defect of the mobile set. The first opposite party was absent both in the Forum and in this Commission. At the time of hearing this appeal also the respondent have some burden production to prove that the mobile set supplied by the opposite parties without any defect. It is their burden in this case the burden of proof is shifting from the part of the appellant to the part of the respondent/opposite parties. It is the principle of “Onusproband” as per the Indian Evidence Act. We are seeing some apparent error in the order passed by the Forum below. The Forum below did not appreciate the evidence of the complainant, even though there was no evidence adduced by the opposite parties. Thus the complaint was filed as per the provisions of the Consumer Protection Act. It is par from a Civil Court. But there is no necessary to discuss any compound question of law. No doubt that the Consumer Protection Act. is a socially benefited legislation passed by the Parliament for the protection of the right and interest of the consumers of our country. We are having an opinion that the Forum did not consider the spirit of the legislation at the time of dismissing the complaint.

In the result, this appeal is allowed in part and set aside the order passed by the Forum below. We direct the opposite parties to replace the hand set of the complainant which was sold by the opposite party otherwise the opposite parties are direct to pay Rs. 7,500/- the total cost of the mobile set to the complainant and also direct the complainant to produce the impugned mobile set to the first opposite party within 15 days for the comply of the judgment after the receipt of the copy of judgment. . If the opposite party will be failed to obey the order applied the order within 15 days after the receipt of the copy of this judgment. They are also to pay an interest @ 15% from the date of the complaint to the appellant/complainant. Apart from this order we this Commission direct the opposite party to pay cost of Rs. 500/- to the complainant as an expenses of this appeal. The points of the appeal answered accordingly.

Sri.M.V.VISWANATHAN
PRESIDING MEMBER

SRI.M.K.ABDULLA SONA
Member

Reproduced under Section 52(q)(iv) of Indian Copyright Act 1957)