State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No. 2680 of 2018
1- Reliance Retails Ltd., Shed no.77/80,
Indian Corporation Godown, Mankoli
Naka, Village Dapode, Tal, Bhiwandi,
Dist. Thane, Maharastra-421302
2- Reliance Retails Ltd., 237, Vibhuti Khand,
Gomti Nagar, Near R.K. timber,
Lucknow-226010
3- Reliance Jio Infocomm Limited,
GF, 1st & 2nd Floor Solitare, C-B Rafi
Ahmad Kidwai Nagar, Opp. Fun Republic
Mall, Gomti Nagar, Lucknow-226010
Uttar Pradesh. ….Appellants.
Versus
Avinash Dixit s/o Late Sri D.S. Dixit,
R/o C-35, H. Road, Mahanagar, Lucknow. ….Respondent.
Present:-
Hon’ble Justice Mr. Akhtar Husain Khan, President.
Mr. Abishek Bhatnagar, Advocate for Appellants.
Mr. Ram Gopal, Advocate for respondent.
Date: 28.6.2019
JUDGMENT
This is an appeal filed under section 15 of the Consumer Protection Act, 1986 against judgment and order dated 15.9.2018 passed by District Consumer Forum-II, Lucknow in complaint no.441 of 2017, Avinash Dixit vs. Reliance Retail Ltd. & ors., whereby District Consumer Forum has allowed complaint partially and passed order in Hindi which is extracted below:-
“परिवादी का परिवाद आशिंक रूप से स्वीकार किया जाता है। विपक्षीगण को संयुक्त एवं एकल रूप में आदेशित किया जाता है कि वह इस निर्णय की तिथि से चार सप्ताह के अन्दर परिवादी को विवादित मोबाइल की कीमत रू0 8000/- मय 9 (नौ) प्रतिशत साधारण वार्षिक ब्याज की दर के साथ वाद दाखिल करने की तिथि से वास्तविक भुगतान की तिथि तक अदा करें। इसके अतिरिक्त विपक्षीगण संयुक्त एवं एकल रूप में परिवादी को मानसिक कष्ट हेतु रू0 5000/- तथा रू0 5000/- वाद व्यय अदा करें। ऐसा न करने की दशा में विपक्षीगण को उक्त धनराशियों पर उक्त तिथि से ता अदायगी तक 12 (बारह) प्रतिशत साधारण वार्षिक ब्याज की दर के साथ देय यहोगा। उक्त धनराशि का चेक लेते समय परिवादी विपक्षी को प्रश्नगत मोबाइल मय ऐसेसरीज वापस करेगा।”
(2)
Feeling aggrieved by the order passed by District Consumer Forum, opposite parties of complaint have filed this appeal.
Ld. Counsel Mr. Abhishek Bhatnagar appeared for appellants. Ld. Counsel Mr. Ram Gopal appeared for respondent.
I have heard ld. Counsel for the parties and perused impugned judgment and order as well as records.
In brief, relevant facts for determination of appeal are that the respondent/complainant has filed complaint before District Consumer Forum against appellants/opposite parties wherein it has been stated that the respondent/complainant has purchased a Wind-5 mobile phone on 28.7.2016 for Rs.8,000.00 from Yogi Dot Com, Gomti Nagar, Lucknow. Warranty period of mobile set was one year and within warranty period respondent/complainant faced several problems in mobile set. Consequently, respondent/ complainant gave mobile set to the opposite party no.2 Reliance Retails Ltd. on 12.6.2017 for removing defects. The opposite party no.2 took mobile set and gave job sheet to respondent/ complainant. Thereafter, respondent/complainant went to opposite party no.2 next day and received his mobile set. Opposite party told him that defect of the mobile set has been removed but the defects were present in the mobile set. Therefore, respondent/complainant again went to said opposite party no.2 on 15.6.2017 and deposited the set with opposite party no.2 who returned the set to him next day saying that the defect has been removed. But the defect was still present. Therefore, respondent/complainant asked opposite party no.2 to replace the mobile if the defects are
(3)
not removed. Whereupon, opposite party no.2 told him that he has written to the manufacturing company for replacing the set. Respondent/complainant shall be intimated for this purpose but the opposite party no.2 did not sent any intimation to respondent/complainant. Consequently, feeling aggrieved, complainant has filed complaint before the District Consumer Forum for redressal of his grievance arising out of alleged deficiency in service committed by the opposite parties.
Opposite parties have filed written statement before the District Consumer Forum wherein it has been stated that complainant has no cause of action to file complaint. He has filed complaint with false allegations. In written statement, it has been further stated that complaint is bad for mis-joinder of parties. The Forum has no jurisdiction to entertain complaint.
In written statement, it has been stated that the respondent/complainant has visited the opposite party no.2 for the first time on 12.6.2017 after 10.5 months from the date of purchase and the set was returned to respondent/ complainant after necessary repairs. Thereafter, respondent/ complainant come again on 15.6.2017 to opposite party no.2 but could not show any defect or problem in the mobile set. The set was returned to him.
In written statement, appellants/opposite parties have referred judgment of Hon’ble National Commission rendered in the case of Sushila Automobiles vs. Dr. Birendra Narian & ors., 3(2010) CPJ-130 (NC) wherein it has been observed by Hon’ble National Commission that the complainant has to prove by cogent, credible and adequate evidence supported
(4)
by opinion of an expert automobile/mechanical engineer that the vehicle suffers from inherent manufacturing defect.
After having gone through pleadings of parties, District Forum has allowed complaint partially and passed order extracted above.
It is contended by ld. Counsel for appellant that impugned judgment and order passed by District Consumer Forum is against fact as well as law.
It is further contended by ld. Counsel for appellants that there is no expert report to suggest that the set was having manufacturing defect. It is contended by ld. Counsel for appellant that complainant has no cause of action to file complaint. Complaint has been filed with false and frivolous facts.
Ld. Counsel for respondent/complainant submitted that impugned judgment and order passed by District Consumer Forum is correct and there appears no sufficient ground for any interference in the judgment passed by District Forum. Appeal has no merit and is liable to be dismissed.
I have considered the submissions made by ld. Counsel for the parties.
During course of argument learned counsel for respondent/complainant submitted that the respondent/ complainant has deposited set with opposite party no.2 but appellant/opposite parties have denied version of respondent/ complainant.
In complaint, it has not been averred that the respondent/complainant deposited mobile set with opposite party no.2 for replacement with new set. In complaint, it has also not been mentioned as to on what date respondent/
(5)
complainant went to opposite party no.2 and asked him to replace mobile set. Receipt or job sheet for depositing mobile set has not been produced. There is no report on record to show that the mobile set has manufacturing defect. Expert report about manufacturing defect is necessary for proper determination.
In view of above, judgment and order passed by District Forum is erroneous and is not sustainable in the eyes of law.
Respondent/complainant has filed complaint for redressal of his grievance arising out alleged manufacturing defect. Therefore, it is not correct to say that respondent/ complainant has no cause of action to file complaint.
In view of discussion made above, appeal is allowed. Impugned judgment and order passed by District Forum is set a side and the case is remanded back to District Forum for passing fresh judgment and order after opportunity of evidence and hearing to both parties.
District Forum shall decide issue of custody of mobile set and direct party in whose custody mobile set is found to produce set before District Forum. Thereafter, District Forum shall obtain report of expert person under section 13(4) of the Consumer Protection Act, 1986 about alleged manufacturing defect and pass fresh judgment and order in accordance with law after affording opportunity of evidence and hearing to both parties.
(Justice Akhtar Husain Khan)
President
Jafri PA II
Court No.1
Appeal No. 2680/2018
Reliance Retails Ltd. & ors. vs. Avinash Dixit
.6.2019
Judgment delivered on separate sheets.
Appeal is allowed.
Certified copy of this judgment be made available to the parties in accordance with law.
(Justice Akhtar Husain Khan)
President
Jafri PA II
Court No.1
