Haryana

Ambala

CC/40/2015

Ganpati Association Company - Complainant(s)

Versus

Base-39,Mobile Communication - Opp.Party(s)

K.C.Jain

27 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

            Complaint Case No.      :  40 of 2015

Date of Institution         :  05.02.2015

            Date of Decision            :  27.05.2016

Ganpati Association Company Alias Ganpati Educational Trust, Jagadhri through its President Sh. Manish Bindra son of Sh. Harish Bindra R/o House No.1133, Sector 17, HUDA, Jagadhri, District Yamunanagar.

                                                                                       ……Complainant.

Versus

1.       Base-39, Mobile Communication, behind S.D. Girl Hostel, Gain Marg, Ambala Cantt through its Partner/Prop.

2.       Paramatrix Authorized Service Centre of Apple I-Phone, SCO No.112-113 Sector-34A, back side of Hotel Picadally, Chandigarh through its Prop/Manager.

3.       Apple India Pvt. Ltd., 19^th Floor, Concorde Tower-C,UB City, No.24 Vittal Mallya Road, Bangalore-560001 through its GM.

……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

CORAM:    SH. A.K. SARDANA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                                     

Present:       Sh. K.C. Jain, Adv. counsel for complainant.

                   Shri Varinder Meshi Adv. counsel for OP No.2.

                   Shri Rajiv Sachdeva, Adv. counsel for OP No.3.

                   OP No.1 exparte.

ORDER.

                    Brief facts of the present complaint are that the complainant purchased a Mobile Set Make Apple-I phone from OP No.1 vide receipt No.19573 dated 15.03.2014 in a sum of Rs.53500/-. After few days of its purchase, said mobile phone suffered hanging problem & automatically switch off without any reason. So, the complainant contacted OP No.1 who after checking and doing the needful, returned the set to him.  In the month of July 2014, the said problem again occurred in the mobile set, therefore, the complainant again lodged complaint to Op No.1 but after 3-4 days, Op No.1 returned the mobile set in question after its repair and since then, the set in question is not working properly. In this regard, many complaints were made to Ops orally as well as telephonically but of no use.  In the month of December 2014, the mobile set again got repaired by the OP No.1 and returned the same after a gap of one month but the defects could not be removed. Now, the Ops have flatly refused to repair or replace the defective mobile set which is a deficiency in service on the part of Ops. Hence, the present complaint seeking relief as per prayer clause has been preferred by the complainnat.

2.                OP No.1 did not appear despite served through registered notice. As such, OP No.1 proceeded against exparte vide order dated 30.07.2015. 

                   OP No.2 filed written statement raising preliminary objections qua no cause of action, no locus standi and complaint is  bad for misjoinder of parties. On merits, it has been stated that the matter relates to complainant & the OP No.1 since there is no allegation against the answering OP. Further it has been urged that the complainant has not mentioned in whole of the complaint that from which service centre, he  got repaired his mobile set. At any rate, the complainant never got repaired the said mobile set from the answering OP and thus prayed for dismissal of the complaint with costs.

                   OP No.3 filed its written statement raising preliminary objection qua non-maintainability of complaint under Consumer Protection Act. On merits, it has been urged that  the complainant purchased  the iphone in question  for commercial activities as such, there is no relationship of  complainant as ‘consumer’ with the answering OP and further submitted that  the said iphone night have been mishandled by complainant and got repaired from some unauthorized person.  Thus a prayer for  dismissal of complaint with costs has been made.

3.                To prove his version, complainant tendered his affidavit as Annexure CX alongwith document as Annexure C-1 and closed his evidence whereas on the other hand, counsel for Op No.2 tendered affidavit of one Sh. Vishal Gupta as Annexure RX and closed their evidence. Counsel for OP No.3 tendered  affidavit of Sh. Priyesh Povanna, Country Legal Counsel, Apple India Ltd. as Annexure RY alongwith documents as Annexures R-1 & R-2 and closed their evidence.

4.                     We have heard learned counsels for the parties and perused the record very minutely.  In order to prove his case, complainant has  tendered his affidavit as Annexure CX alongwith purchase bill of the mobile in question as Annexure C-1 wherefrom it is established that complainant has purchased the mobile in question from OP No.1 vide bill No.19573 dated 15.03.2014 in a sum of Rs.53500/- but no any document or job sheet has been placed on file by the complainant wherefrom it is proved that the mobile set in question was defective.  Further, counsel for OP No.2 vehemently argued that complainant has not got repaired the mobile set from their service centre, as such, they are not liable in any manner in the present case especially for the wrong doing of the complainant whereas Counsel for OP No.3 has argued that  the mobile phone in question was purchased by the complainant for commercial purpose as such, it does not fall within the definition of ‘consumer’ and  further the mobile phone was not having any manufacturing defect and for the sake arguments, if there was any manufacturing defect, in that eventuality, it  has to be proved by the complainant by submitting an expert evidence or by tendering a  report of a technical person of the relevant trade which the complainant has not produced and thus the case of complainant is not made out.

                        In view of the above discussed facts, we have come to the conclusion that the complainant has failed to show any document viz. expert report or job sheet etc. wherefrom it could be determined that the iphone in question was having any defects in it as alleged and further wherefrom the mobile set in question was got repaired by him. The arguments advanced by counsel for OP No.3 that where a complainant alleges ‘manufacturing defect’, the allegations have to be proved by complainant with some authentic evidence is appreciateable since as per provisions contained in Section 13(1) of Consumer Protection Act, the complainant was required to submit report of a technical person in this regard and for this purpose, he was also free to take any assistance of the Forum in order to prove his factum qua ‘manufacturing defect’ in the iphone in question but he has miserably failed to prove this factum. As such, we have no other option except to dismiss the present complaint. Accordingly, the complaint is dismissed with no order as to costs.  Copies of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

 

Announced: 27.05.2016                                                          Sd/-                   

                                                                                    (A.K. SARDANA)

                                                                                           PRESIDENT

                                                                                        Sd/-    

(PUSHPENDER KUMAR)                                     

                                                                                  MEMBER