PER:

Varinder Pal Singh Saini, Member

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite party on the allegations that the opposite party is dealing in sale and purchase of old and new mobile sets and running his business under the name and style of “Gagan Telecom” at Bibo Shah Market, Tehsil Bazar Tarn Taran. The opposite party also deals in sale and purchase of Apple I-phones and other material at his shop. On 15.2.2022, the complainant Avtar Singh approached to the opposite party and asked for purchasing Apple I-phone 13-Pro made in USA. The complainant specifically asked the opposite party that he wants to purchase Apple I-phone 13 Pro made in USA. On this the opposite party sold Apple I-phone 13-Pro bearing IMEI No. 356942286171221 to opposite party by stating that it is made in USA for that sale consideration of Rs. 1,06,000/- vide bill No. 1286 dated 15.2.2022. On coming back to home, the opposite party removed the seal and open the box of the above said I-phone but the utter surprise, the complainant saw that the above said I phone was made in Japan. On this the complainant went back to opposite party and disclosed the above said fact that the said phone is made in Japan instead of Made in USA and requested the opposite party to change the said phone with the phone made in USA. But the opposite party flatly refused to entertain the request of complainant.  By above said act, the opposite party committed fraud with the complainant and opposite party has extracted money from the complainant by falsely representing him that the said I-phone was made in USA. Thereafter, the complainant many times approached the opposite party but the opposite party is lingering on the matter on one pretext or the other by taking lame excuses and the opposite party has failed to change the above said mobile to the complainant so far. The complainant sent a legal notice dated 21.4.2022 through registered post to the opposite party through registered post to the opposite party through its proprietor with regard to change the above said I-phone of the complainant and gave him brand new I-phone 13-pro made in USA within the period of 15 days from the date of receipt of present legal notice but the opposite party did not give any proper reply to the above said legal notice. The complainant prayed that the opposite party may kindly be directed to return the whole amount of Rs. 1,06,000/- immediately to the complainant and also prayed Rs. 20,000/- as compensation and Rs. 10,000/- as litigation expenses. Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, Self attested copy of Bill dated 15.2.2022 Ex. C-2, Self attested copy of legal notice dated 21.4.2022 Ex. C-3, Self attested copy of postal receipt dated 21.4.2022 Ex. C-4, Self attested copy of Adhar Card of complainant Ex.C-5.

2        Notice of this complaint was sent to the opposite party and opposite party appeared through counsel and filed written version by interalia pleadings that on 15.2.2022 the complainant purchased Mobile Apple I Phone Model 13 Pro from the opposite party. The complainant has no complaint regarding function of mobile and mobile is functioning properly. The complainant made complaint that he demanded Phone of USA country but Phone of Japan country is given to him. The complainant made this complaint after 4 months from the purchase of phone then the complainant was told that the complainant demanded I Phone model 13 pro of Apple company and there was no conversation regarding country and that conversation was to be made at the time of purchasing the phone but the same was not done and now in order to harass the opposite party, the complainant has filed the present false complaint. The complainant is also harassing the opposite party by making false complaint to the police and prayed that the present complaint may be dismissed. Alongwith the complaint, the opposite party has placed on record affidavit of Gagandeep Singh Ex. OP/1.

3        We have heard the Ld. counsel for the complainant and opposite party and has carefully gone through the record placed on the file.

4        The combined and harmonious reading of the documents and pleadings on record is going to prove that the complainant has purchased a Apple I-phone 13-Pro made in USA, as the complainant specifically asked the opposite party to purchase Apple I-phone 13 Pro made in USA. The complainant purchased the said I phone after paying the sale consideration of Rs. 1,06,000/-vide bill No. 1286 dated 15.2.2022. Further the complainant contended that as and when he removed the seal and opened the box, to the the utter surprise, the said I phone was made in Japan. Upon, this, the complainant went back to opposite party and disclosed the above said fact that the said phone is made in Japan instead of made in USA and requested the opposite party to change the said phone with the phone made in USA. But the opposite party flatly refused to entertain the request of complainant.  Thereafter, the complainant approached the opposite party many a times, but the opposite party has not changed the above said mobile. The complainant also sent a legal notice dated 21.4.2022, but the opposite party has not replied to this legal notice. As such, the complainant requested to return the whole amount of Rs. 1,06,000/-.

5        On the other hands Ld. counsel for the opposite party contended that on 15.2.2022 the complainant purchased mobile apple I Phone 13 Pro from the opposite party. The complainant has no complaint regarding functioning of mobile as mobile is functioning properly. The complainant made this complaint after four months the date of its purchase. It is further contended that  there is no conversation regarding country at the time of purchasing the said mobile phone. The complainant has filed the complaint just to harass the opposite party. The complainant has also filed a false complaint with police authorities.

6        In the present case it is not disputed that the complainant has purchased one Apple I-phone 13-Pro from the opposite party on 15.2.2022. The main controversy in the present complaint is that according to complainant he purchased the above said mobile phone of USA make but the opposite party has delivered the said mobile of Japan made. The complainant has stated in his complaint that immediately he went to the opposite party to return the same. But as per the version of the opposite party the complainant made the complaint after the lapse of 4 months. However, from the legal notice dated 21.4.2022 which was sent by the complainant to the opposite party, it reveals that the complainant might have not approached the opposite party immediately. The complainant has not made any complaint regarding the performance of the said mobile phone. As such, there is no deficiency in service on the part of the opposite party. During the course of arguments, the opposite party has placed on record two quotations of Harman Electronics dated 17.5.2023 and Brother Computers dated 18.5.2023 which clearly reveals that the cost of Japan Made phone is more than U.S.A. Made. Now the question arises that whether the opposite party has delivered the said phone of USA made or Japan made. The complainant has also not placed on record any cogent evidence on record which shows that he was delivered the phone with USA made or Japan made. Till date, the complainant has not placed the said mobile before this commission to ascertain that the above said phone is a Japan made.  The complainant has miserably failed to prove on record that how he has suffered the loss due to the act of the opposite party. The ibid quotations placed on record clearly shows that the price of the Japan made is more than the U.S.A made. The complainant has also miserably failed to prove on record that he has suffered any financial loss due to supply of Japan made instead of USA made phone.  Moreover, the complainant should have made the complaint with the opposite party immediately, but there is no document on record which proves that the complainant has immediately approached the opposite party. Further more, on the bill which was issued by the opposite party it is clearly written in the brackets U.S.A but the complainant has not proved on record that this is same mobile set which was delivered by the opposite party and the same is not USA made. Mobile set as well as its box was never brought before this commission to ascertain the make of said product. It was the bounded duty of the complainant to prove his allegations made in complaint by placing cogent record and evidence which clearly proves that the above said phone was of Japan made instead of U.S.A. made. As such, the compliant has failed to prove on record any deficiency in service and unfair trade practice on the part of the opposite party.  

7        In view of the above discussion, we do not find any merit in the complaint and the same is hereby dismissed. The parties are left to bear their own costs.  Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.

Announced in Open Commission.

13.07.2023