| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA. Consumer Complaint No. 317 of 16.8.2017 Decided on: 13.06.2018 M/s Baba Dittu Ji Transport Company # SCO-11, SST Nagar, Patiala through its Partner Sh.Kirpal Singh …………...Complainant Versus 1. M/s Electrowaves, Sirhind Road, Patiala through its Proprieitor/Partner. 2. M/s Sankalp Electronics, Near National Insurance, Ist Goal Chakkar, Factory Area, Patiala-147001 through its Proprietor/Partner …………Opposite Parties Complaint under Section 12 of the Consumer Protection Act, 1986. QUORUM Smt. Neelam Gupta, Member Sh.Kanwaljeet Singh, Member ARGUED BY: Sh.M.P.S.Sahi,Advocate, counsel for complainant. Opposite Parties ex-parte. ORDER SH. KANWALJEET SINGH, MEMBER - Sh.Kirpal Singh, partner of M/s Baba Dittu Ji Transport Company (hereinafter referred to as complainant) has filed the present complaint against M/s Electrowaves & others (herein after referred to as OP(s) .
- The brief facts of the complaint are that the complainant has purchased one Sony Handset Xperia XA Ultra DS Black mobile set, bearing IMEI No.356060071196061 from Op No.1 against invoice No.RT/2279 dated 18.8.2016 for a sum of Rs.27,500/-. At the time of purchase of the above said mobile set,it has disclosed by OP no.1 that there is one year guarantee/warrantee on the mobile set and in case any defect occurs during first week then the set will be replaced free of cost or any defect which is curable then the set will be immediately rectified.On the assurance of OP no.1, the complainant has purchased the above said mobile set for personal use.That about two days after the purchase of the mobile set, it started giving problems. Complainant approached OP No.1 on 26.8.2016, 9.9.2016, 3.11.2016, 8.11.2016, 23.11.2016, regarding mobile in question giving battery problem, hanging over, heating during its usage, slow volume pass from Mic, restarting problem. At this the OP swapped the defective set with new one having IMEI No.356060073258182. This set was also not able to make or receive calls and was giving call connecting problem.That when ever the Op repaired the mobile set, same was giving some problem. The complainant again took the mobile set to OP No.2 on 3.12.2016 . It kept the mobile set and issued stand by mobile set.That thereafter OP No.2 disclosed that the mobile set is having manufacturing problem and told the complainant to choose another mobile set. At this complainant chose mobile set for which the complainant was asked to give demand draft of Rs.18000/-.The complainant deposited a sum of Rs.18000/- through demand draft No.006242 dated 31.12.2016 and returned the stand by mobile set issued by Op no.1.The complainant requested the OPs to deliver the mobile set within seven days as the complainant was suffering from lot of hardships and he was not having any other mobile set but the OPs did not provide the new mobile set. The complainant purchased another mobile set and asked the OPs to return the amount of the mobile set but the OPs only returned the amount of Rs.18000/-to the complainant and kept the above said mobile set of the complainant with them. After a gap of almost 18 months, the OPs have sent a letter whereby they have asked the complainant to collect unrepaired mobile set. It is prayed that the complaint may be accepted and order may be given to the OPs to return the amount of Rs.27500/-, the price of the mobile set, alongwith interest @9% per annum or in the alternative the complainant may be given new mobile set free from manufacturing defect and also to pay Rs.50,000/- as compensation on account of mental torture ,harassment, loss of valuable time, loss of business, caused to him by the OPs. The OPs may also be directed to pay litigation expenses of Rs.5000/- and also prayed that any other relief which this Forum may deem fit may also be granted.
- Notice of the complaint was given to the OPs but despite service the OPs did not come present and ultimately OPs were proceeded against exparte.
- In order to prove the case, the ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Ex.C1 to Ex.C8 and closed the evidence of the complainant.
- We have heard the ld. counsel for the complainant and with his valuable assistance also gone through the complaint filed very carefully and examined all the documentary evidence on record.
- The contention of the ld. counsel for the complainant is similar to the pleadings so we do not repeat the same. As per paras No.8,10 and 16 of the complaint, complainant mentioned in his pleadings that OP no.2 told the complainant that mobile set is having manufacturing defect.Onus to prove that the mobile in question is having any manufacturing defect is on the complainant. Complainant neither examine any expert evidence nor rely upon any evidence to prove that mobile set is having manufacturing defect; problem in the mobile set is in existence. Further counsel for the complainant more focused on document Annexur-H, which is Ex.C8, request for collection of his unrepaired mobile set. In the case of Sundeep Polymere Pvt. Ltd. and another Vs. Mercedes Benz India Pvt. Ltd. III(2009)CPJ 389 (NC), it was held that the onus of prove inherent manufacturing defect is on the complainant” . Resultantly, we partly allow this complaint with a direction to OP no.2 to replace/repair the defective parts of the mobile set in question, free of cost and also to pay compensation to the tune of Rs.3000/- to the complainant. Entire compliance of the order be made by OP no.2 within a period of 30 days from the date of the receipt of the certified copies of this order. Certified copies of this order be sent to the parties free of cost under the Rules.Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED DATED:13/06/2018 NEELAM GUPTA MEMBER KANWALJEET SINGH MEMBER | |
