DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 315 of 06.11.2007<br /> Decided on : 23-01-2008 <br /> <br /> Kulwant Singh Gill, Advocate, R/o Street No. 23B, Ajit Road, Bathinda. <br /> <br /> ... Complainant<br /> Versus<br /> <br /> 1.Carewell Enterprises, Opp. Canara Bank, The Mall, Bathinda through its Proprietor.<br /> 2.Onida TV Company Limited., Onida House, G-1, MIDC, Mahakali Caves Road, Andheri (East) Mumbai 400 093 through its Managing Director. ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. S.S. Gill, Advocate.<br /> For the Opposite parties : Sh. Jai Gopal Goyal, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Coloured T.V. 21”, make ONIDA 1200 Watts bearing Sl. No. 00098 was purchased by the complainant from opposite party No. 1 on 25.7.07 for consideration of Rs. 12,000/- against receipt No. 2900. It was causing problem and was not giving good performance. Opposite party No. 1 was informed. Technician was sent by it and he had changed some components. Despite this, there was no improvement in its functioning. Television was taken to opposite party No. 1 for removal of defects, but to no effect. It is alleged by the complainant that used Television was sold to him. Defects in its were pre-existing and he has been duped. Accordingly, there is deficiency in service on the part of the opposite parties. In these circumstances, complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') has been preferred by the complainant seeking direction from this Forum to the opposite parties to return him the price of the Television set i.e. Rs. 12,000/- alongwith interest @18% P.A. from the date of receipt till realisation ; pay Rs. 10,000/- as compensation for mental and physical agony and Rs. 5,000/- as litigation expenses.<br /> 2. Opposite parties filed their version taking legal objections that complainant is not consumer; complaint is not maintainable in the present form; since complainant is alleging breach of trust and cheating, this Forum has got no jurisdiction to entertain and try the complaint; complainant is blowing hot and cold in the same breath; he is estopped from filing the complaint by his act and complaint is false and frivolous. On merits, they admit that Television set was sold for Rs. 12,000/- on 25.7.07. On complaint by the complainant, Television set was set right by the Technician of opposite party No. 2 immediately to his (complainant's) satisfaction. It started working to his satisfaction. This fact can be verified by viewing its performance before this Forum. Complainant himself has brought the Television set at the shop of opposite party No. 2. Its price was demanded although Television is working properly. He was offered new Television set, but he did not accept it and insisted for return of the price of the television showing his influence as an Advocate saying that he can get desired relief from the court. Inability was expressed to return the price. They deny the remaining averments in the complaint.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of Retail Invoice (Ex. C-2), photocopy of legal notice (Ex. C-3), photocopies of postal receipts (Ex. C-4 & Ex. C-5).<br /> 4. In rebuttal, on behalf of the opposite parties affidavit of Sh. Gourav Bansal, Proprietor of opposite party No. 1 (Ex. R-1) and photocopy of Job Sheet (Ex. R-2) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant.<br /> 6. Some facts do not remain in dispute. They are that Colour T.V. 21” make Onida was purchased by the complainant from opposite party No. 1 vide retail invoice, copy of which is Ex. C-2, for a consideration of Rs. 12,000/-. Since there was some problem in its functioning, matter was reported to opposite party No. 1 which was attended to by its Technician.<br /> 7. Arguments pressed into service by the learned counsel for the complainants are that despite the fact that Technician of opposite party No. 1 had changed some components of the Television set, it is not functioning. This set was taken to opposite party No. 1 for removal of defects, but to no effect. He further argued that defects in the Television set sold by opposite party No. 1 to the complainant were pre-existing and complainant has been duped. Legal Notice, copy of which is Ex. C-3 was sent to the opposite parties but no relief has been given. He submitted that complainant is entitled to compensation of Rs. 10,000/- as well as refund of the price of the Television set alongwith interest as deficiency in service on the part of opposite party No. 1 is established.<br /> 8. Mr. Goyal, learned counsel for the opposite parties countered the arguments of the learned counsel for complainant by submitting that the evidence on record does not establish any deficiency in service or unfair trade practice on the part of the opposite parties and no relief can be provided to the complainant much less the refund of the price of the Television set.<br /> 9. We have considered the respective submissions.<br /> 10. Burden of proving the deficiency in service is upon the person who alleges it. In this case, complainant alleges deficiency in service on the part of the opposite parties. It being so, it is for him to prove it. In this view of the matter, we are fortified by the observations of their Lordships of the Hon'ble Supreme Court in the case of Ravneet Bagga Vs. M/s. K L M Royal Dutch Air Lines 2000(1) CLT 33.<br /> 11. In support of his version, there is bald affidavit of the complainant which stands amply bracketed with the affidavit Ex. R-1 of Sh. Gourav Bansal, Proprietor of opposite party No. 1. In our view, complaint does not disclose the specific defect in the Television set. In para No. 2 of the complaint, complainant alleges that Television had started giving problem and it was not working properly. That alleged problem has not been disclosed to the Forum as it has not been brought on record in black and white. It is not known which components of the Television Set were not in order. Again the allegation of the complainant is that after the Technician changed some components, it is not functioning and that the defects in it were pre-existing. Although complainant is alleging pre-existing defects in the Television set, yet they have not been brought to light. It being so, the allegation of pre-existing defects has not gone beyond the stage of allegation particularly when the complainant has not led any expert evidence on this aspect of the matter. If the Television set is giving problem and is defective one, complainant could get it examined from some expert and submit his report and affidavit. Evidence to this effect is lacking. It is worth mentioning that there is not an iota evidence that Television set purchased by the complainant is warranted and if so for how much period. In the absence of terms and conditions of warranty to the effect that in case of any defect in the Television set opposite party No. 1 is liable to refund the price, the prayer for refund of the price is not tenable. To the contrary Ex. R-2 is the copy of the Job Sheet according to which Television set of the complainant was found okay by the Service Engineer of opposite party No. 1. Contention of the learned counsel for the complainant that opposite parties have taken contradictory stand by pleading that Television set is functional and on the other hand they are offering to give a new Television set, does not carry conviction in the facts and circumstances of this case. At the risk of repetition , it is again mentioned that onus to prove the case is upon the complainant. It was for him to prove that the alleged defects in the Television set were pre-existing. He has failed to lead cogent and convincing evidence to establish it. Offer given by the opposite parties to provide new Television set in place of the set purchased by the complainant, cannot be termed malafide. This offer does not advance the cause of the complainant for refund of the price, especially in the absence of contract between the parties to this effect. <br /> 12. In the premises written above, crux of the matter is that complainant has failed to establish deficiency in service on the part of the opposite parties. Complaint being devoid of merits, is dismissed. Parties are left to bear their own costs. Copy of this order be sent to the parties concerned free of cost and file be consigned. <br /> Pronounced :<br /> 23-01-2008 <br /> (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br />