Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant  has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that he purchased a Samsung A-20 Mobile IMEI No.3583581032 79899 from op vide Memo No. 2933 on 12.08.2019. Further alleges that the Mobile Set in question became defective in the month of July, 2020 when it was under warranty. In this regard, the complainant approached the Opposite Party who took the said Mobile Set in question from the complainant  on 31.07.2020 and thereafter, the complainant went to Opposite Party to collect the Mobile Set in question, but the Opposite Party charged Rs.400/- illegally when it was under warranty. Said Mobile Set in question had been gifted by the complainant to her sister, but due to the aforesaid reason, the complainant  suffered mental harassment. Thereafter, the complainant made requests to the Opposite Party to  replace the mobile set  and also to pay Rs.2,000/- for causing her mental tension and harassment, but to no affect and hence, there is deficiency in service on the part of the Opposite Party.  Vide instant complaint, the complainant has sought the following reliefs.

a)       The Opposite Party may be directed to replace the Mobile Set in question and also to pay Rs.2,000/- as compensation for causing him mental tension and harassment.

Hence, the Complainant has filed the present complaint for the redressal of her grievances. 

2.       Opposite Party appeared through their counsel  and contested the complaint by filing  the written version taking preliminary objections therein inter alia that  the present complaint is not maintainable and is liable to be dismissed as there is no deficiency in service on the part of the Opposite Party as there is nothing on record what was the defect in the Mobile Set in question and there is no expert report placed by the complainant to prove any defect in the Mobile Set in question. Actual facts are that a recovery of Rs.4000/- is due against the husband of the complainant as he has purchased mobile accessory from the shop of the Opposite Party and when the Opposite Party raised the demand of said amount, then the complainant filed the instant complaint. Moreover, the complainant never approached the Opposite Party as alleged on 31.07.2022 neither any amount of Rs.400/- ever charged by the Opposite Party from the complainant. Further, if the Mobile Set in question was having any manufacturing defect under the warranty period, then the manufacturing company is liable for the same, but said mobile company has not been impleaded in the present complaint and hence, there is no deficiency in service on the part of the Opposite Party.     On merits, Opposite Party taken up almost the same and similar pleas as taken by them in the preliminary objections and it was prayed that the complaint may be dismissed with costs.    

3.       In order to  prove  her  case, the complainant has tendered into evidence her affidavit Ex.C1 alongwith copies of documents Ex.C1 to Ex.C7  and closed the evidence on behalf of the complainant.

4.       On the other hand, Opposite Party also tendered into evidence  the affidavit  of Ashok Kumar Bajaj Ex.OP1/A and closed the evidence on behalf of Opposite Party.

5.       We have heard the complainant as well as ld.counsel for the Opposite Party and also   gone through the documents placed  on record.

6.       During the course of arguments, the complainant as well as ld.counsel for Opposite Parties have  mainly reiterated the facts as narrated in the complaint as well as written reply respectively. We have perused the rival contentions of the parties and also gone through the record on file. First of all, the allegation of the complainant is that the Mobile Set in question became defective in the month of July, 2020 when it was under warranty and for this, she  approached the Opposite Party who took the said Mobile Set in question from the complainant  on 31.07.2020 and thereafter, the complainant went to Opposite Party to collect the Mobile Set in question, but the Opposite Party charged Rs.400/- illegally when it was under warranty. To prove such assertion, the complainant has not placed any iota of evidence i.e. any copy of job sheet or any other document, if any, issued by the Opposite Party at the time of depositing the Mobile Set in question from the complainant for its repair and any such receipt of payment of Rs.400/- allegedly charged from the complainant. The further contention of the complainant is that there is some defect in the mobile set in question and she wants to replace the same, but the complainant has not impleaded the manufacturing company as necessary party. Moreover, the complainant has failed to  produce on record any report of some expert of the field  to prove that the Mobile Set in question is having inherent manufacturing defect. In the absence of any such report of some expert,  Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Sukhvinder Singh Vs. Classic Automobile & Anr. decided on 6 November, 2012 has held that  the report of expert is essential or some other evidence showing manufacturing defect should have been adduced. The mere fact that the vehicle was taken to the service station for one or two times does not ipso fact prove the manufacturing defect. Due to lack of evidence, the value of the petitioners case evanesces.”  Not only this, on the same line, Hon’ble National Commission, New Delhi in case titled as Maruti Udyog Limited vs Hasmukh Lakshmichand  decided on 26 May, 2009 also held so. Hence, we hold that  the complainant has failed to prove any manufacturing defect in the Mobile Set in question  

7.       In view of the aforesaid facts and circumstances of the case, we find no deficiency in service on the part of the Opposite Party and hence, the instant complaint stands dismissed.  Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

8.       Reason for delay in deciding the complaint.

          This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated:07.06.2022.