BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.529 of 2015

Date of Instt. 17.12.2015

Date of Decision: 18.04.2017

Hardev Singh Chalotra s/o Sh. Baldev Singh Chalotra r/o H.No.221, Ward No.5, Kasba Mohalla, Dasuya, Distt. Hoshiarpur.

..........Complainant

Versus

Empire Office Systems, Shop No.11, Isherpuri Market, near Dulhan Palace, Urban Estate Phase-II, Jalandhar, Through its Proprietor.

.........Opposite party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh. Parminder Sharma (Member)

Present: Sh. Sunil Dogra, Adv. Counsel for complainant.

Sh. Neeraj, Adv and Sh. Rajiv Garg, Adv Counsel for OP.

Order

Karnail Singh (President)

1. The instant complaint filed by the complainant with the submissions that the complainant had purchased electronic goods from the OP, worth total sum of Rs.1,69,450/- vide two different bills dated 06.10.2014 and 28.12.2014. It is clearly mentioned on the said bills regarding guarantee/warranty period of 5-1/2 years. At the time of selling the said items the OP assured the complainant that if there will be any defect, then the OP will be responsible for the same and will remove the defect in the electronic items. When the complainant tried to use the said items, there were major defects in all the electronic items. The complainant contacted the OP various time telephonically and by personal visits but the OP earlier assured the complainant to visit the house of the complainant to check the defect but ultimately a day before yesterday the OP flatly refused either to remove the defects or to return the said items. Due to illegal act and conduct of the OP, the complainant has suffered a great mental tension, physical pain, harassment and torture. Even the complainant got served a legal notice upon the OP requested him to remove the defect in the electronic items or to return the same and to return the amount of the complainant within a period of 15 days from the date of receipt of the legal notice but the OP refused to receive the said legal notice, as he was having full knowledge about the contents of the said legal notice and intentionally refused to receive the same. Copy of the notice, postal receipt and returned envelop are attached. Even the complainant after receipt of the returned notice approached the OP and requested him to either remove the defect or to return the amount of the complainant a day before yesterday but he flatly refused to admit the claim of the complainant. Hence the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OP be directed to remove the defect in the electronic items or to return the same and to return the amount of complainant i.e. Rs.1,69,450/- alongwith interest @ 24% per annum from the date of purchase of items till the realization of the amount and damages to the tune of Rs.50,000/- for causing harassment, mental tension, torture, physical pain and financial loss, to the complainant, alongwith costs of the complaint.

2. Notice of the complaint was given to the opposite party who filed a reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form against the answering OP, as such, the same is liable to be dismissed. It is further submitted that the complainant has no locus standi to file the present complaint, as such, the present complaint is liable to be dismissed. It is further averred that no cause of action has arisen to the complainant against the answering OP, as such, the present complaint against the answering OP, is liable to be dismissed and further submitted that the answering OP is only a retailer of the goods in question and has got no concern with the manufacturing of the goods, as such, the answering OP cannot be held responsible. The present complaint of the complainant is bad for non-joinder of necessary party i.e. manufacturing company and further alleged that the complainant has suppressed the material facts from this Forum as the complainant is having electrical shop and deal in the same product in retail at main market, Dasuya. On merits, the factum in regard to purchase of the electronic goods is admitted but the remaining allegations made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.

3. In order to prove the case of the complainant, complainant himself tendered into evidence his affidavit Ex.CW1/A alongwith documents Ex. CA1 to Ex.CA6 and then complainant also tendered into evidence an affidavit of Pardeep Chalotra, wife of complainant Hardev Singh as Ex.CW2/A and then closed the evidence.

4. Similarly, counsel for the OP tendered into evidence affidavit Ex.O-1 and closed the evidence of the OP.

5. We have heard the learned counsel for the respective party and also gone through the case file very minutely.

6. After considering the over all factum as put before us by both the counsel for the party as well as elaborated in the pleadings, we find that the factum in regard to purchase of electronic goods as mentioned in the bill Ex.CA1 and Ex.CA2 is admitted by the OP but the question remains whether there is any defect in the said article, for that purpose, the complainant has to bring on the file any cogent and convincing evidence to show which of the product is having what type of defect but the complainant has made general allegation in the complaint that the electrical article so purchased by him are defective one but these allegations are not sufficient to prove that the electrical goods so purchased by the complainant is having any defect or not. For that purpose, the complainant has who got check the said article from any expert person but the complainant has not did so for the best known reason, but we find that except a expert person/mechanical person no one can say or adjudge whether there is any defect in said electrical goods or not, no doubt the complainant himself appeared in the witness box and tendered his affidavit Ex.CW1/A and also examined his wife whose affidavit is Ex.CW2/A but both are not mechanical or expert person. So, under these circumstances it is not established on the file whether the goods so purchased by the complainant having any defect and moreover simply giving a message through WhatsApp and producing its copy on the file Ex.CA-3, is not sufficient to establish the defect in the goods. So, under these observations, we find that the complainant miserable failed to establish the charges made against the OP.

7. Apart from above, there is an other legal lacuna in this complaint which go to the roots of the complaint. For that purpose, we like to refer the plea taken by OP in the written statement in preliminary objection No.5 that the complainant is having electrical shop and deal in the same product in retail at main market, Dasuya but this plea of the OP is not controverted by the complainant in his own affidavit or in the affidavit of his wife. So, it means that the complainant is also running an electrical shop and electronic goods might have been purchased for resale in his shop and these factum is further confirmed from the pleading of the complaint wherein the complainant very tactfully does not mention whether he purchased electronic goods from the OP in such a huge quantity for the use in his house or for some other purpose, if virtually he purchased the said electronic goods for using in his house then he has to mention in the complaint but these factum is missing in the complaint and further more the factum concealed by the complainant in regard to running a electrical shop is Lime Light from the WhtsApp message Ex.C3 wherein at the top the word is mentioned “Vishal Light Jdr”. It means the message is given by Vishal Light to the OP and this word is scribed on each page of the message. So from this word i.e. Vishal Light JDR, it has become clear that the complainant has purchased the said electronic goods in a huge quantity for resale and as per settled law when any goods purchased for resale then the complainant is not consumer, if so then the instant complaint of the complainant is not maintainable.

8. As an upshot of our above detailed discussion, we find that the complaint of the complainant fails and the same is dismissed. Complaint could not be decided within stipulated time frame due to rush of work.

9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

18.04.2017 Member President