Delhi

New Delhi

CC/440/2018

JIHOSUYA JENA DIRECTOR (INDIAN NEW LIFE SOCIETY) - Complainant(s)

Versus

CROMA RETAIL STORES - Opp.Party(s)

23 May 2022

ORDER

 

 

                                   DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

                                  DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC/440/2018

 

IN THE MATTER OF:

 

Jihosuya Jena

Director (Indian New Life Society)

A-250, Pandara Road, New Delhi-110003

Mobile: +91-7751972333                                                      COMPLAINANT

 

VERSUS

Croma Retail Stores

Ground Floor, Odeon Cine Complex,

D block Connaught Place

New Delhi-110001                                                             OPPOSITY PARTY                                                    

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                                                                    Dated of Institution: 19.11.2018

                                                                                                                      Date of Order         :   23.05.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 hereinafter referred to as the CP Act. Briefly stated the facts of the case are that the complainant is purchased a mobile Phone Manufactured by ( 1 plus 6) for Rupees 37,198/- (Rupees Thirty Seven Thousands one Hundred Ninety Eight Only) on 26^th may, 2018 under the name of my NGO” Indian New Life Society”.
2. The mobile phone was purchased from Croma Retail Stores Connaught Place, New Delhi-110001. It is further stated that on 28^th May, 2018 the mobile started showing faults and finally shut down. The complainant personally went on 31^st May 2018 to the concerned Croma Store from where the mobile phone was purchased and filed a complaint and deposited the mobile phone vide complaint number GAN No. DEL310518WS00557. It is also stated on 02.06.2018 complainant received a Email from Croma Stores stating that the faulty phone was repaired and was working and should be collected from the store within next 4 days.
3. It is also alleged that on 6^th June, 2018, a online interaction with the customer Care Department of Manufacturer of the mobile phone and complainant was told about the manufacture’s policy that in case of any fault in a new mobile phone the phone should be replaced with a new one rather than repairing it within 10 days of its purchase. It is also alleged that representative of manufacturer also informed that Croma Store from where the mobile phone was purchased was not the authorized store of the manufacturer’s goods and they could have illegally sold duplicate devise.
4. It is also alleged that complainant conveyed the matter to the croma store via email dated 2^nd June 2018, and made it clear that the Croma Stores should give him a new device against the faulty device as per the Manufacturer Policy. The faulty devise is lying in croma store.
5. It is prayed that complainant be compensated by OP “Croma Store” with Rupees 19,00,000/- ( Nineteen Lakhs) compensation from the day of purchase of the mobile phone and a brand new mobile phone be given in lieu of the defected phone, till date which is lying with them.
6. OP contested the case. Written statement was filed taking objection that the complaint is misconceived. It was further stated that no case was made out as complainant as he had no cause of action against the OP. It was further stated that OP was known for its services OP cannot be held responsible for any defect in manufacturing. In case of manufacturing defect, the manufacturer  of the goods is liable to pay the loss to the consumer. The OP functions through its retail stores. It was further stated that the complaint was bad for misjoinder of parties, as OP is not responsible for manufacturing defect, the responsibility of manufacturing defect is of one plus.
7. It was also stated the complainant was informed of the warranty of the product being 12 months from the date of purchase. It was further stated that the product was received by OP and sent to the manufacturer’s service centre. The service centre found that there some software was to be updated after the updating of software complainant was informed that the product was in working condition and the same be collected.  It was also stated that there was no deficiency in service on part of OP. It was also stated that OP cannot be held liable. It was prayed that the complaint be dismissed.
8. We have heard the Ld. Counsel for OP. Vide order dated 25.04.2022, the opportunity to file CE was closed as complainant failed to file the same despite several opportunities being granted.
9. Complainant has file the present complaint alleging deficiency in service but evidence was not led by complainant. The onus of proof that there was deficiency in service was on the complainant, after complainant was able to discharge its initial onus the burden would shift on OP.
10.  It has been held by Hon’ble Supreme Court in Civil appeal no. 5759/2009 SGS India Ltd. Vs. Dolphin international decided on 06.10.2021 that the initial burden of proof of deficiency in service was on complainant. The burden would not shift on OP.

It is also to be noted that Hon’ble State Commission also held in Indigo Airlines Vs. Kalpana Rani Debbarma and others (2020) 9 SCC 424 that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the compliant. Further heed:-

“28. In our opinion, the approach of the Consumer For a is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondent. That has not been discharged by them. The Consumer For a, however, went on to unjustly shift the onus on the appellants because of their failure to produced any evidence. in law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

For the foregoing reasons we are of the view that complainant failed to prove that there was deficiency of service on part of OP. the complaint stands dismissed. No order as to costs.

The copy of order be uploaded on the website of the Commission.

File be consigned to record room alongwith a copy of the order.

 

 

 

POONAM CHAUDH

(PRESIDENT)  

 

BARIQ AHMAD                                                                                                    ADARSH NAIN

             (MEMBER)                                                                                                                   (MEMBER)