MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the complainant against order dated 21.8.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 1136 of 2009.

2.            Briefly stated the facts of the case are that on 10.4.2008 the complainant purchased a Sony Eric. Mobile set, Model K530 having IMEI No.359019018541729 for a sum of Rs.7800/- vide bill/invoice No.146 from OP No.1. It was submitted by the complainant that from the very inception of the purchase of the said mobile set, the mobile set was not working properly and caused many problems. The complainant visited OP No.2 on 6.4.2009 for removal of the defects in the mobile and job sheet was prepared vide its No.12156 dated 6.4.2009 but the mobile set was handed over to the complainant without any repair with an assurance that the defects have been removed from the mobile set. But thereafter again the mobile set started giving problems and complainant again visited OP No.2 but despite checking, the mobile set was returned back to the complainant with an assurance that the fault as mentioned in job sheet has been removed. Inspite of the repeated visits, the OPs failed to rectify the defects in the mobile set, which was under warranty. Finally, when the OP No.2 failed to remove the defect, a legal notice dated 29.5.2009 was sent to the OPs to which although the OP No.1 had given reply but nothing has been done by the OP No.1 for removing the defect in the mobile set. When the complainant was left with no other alternative, the complainant filed a complaint before the learned District Forum for the redressal of his grievances.

3.         The complainant led his evidence in support of his contentions.

4.         The learned District Forum dismissed the complaint in limini as there is no merit in the complaint.  

5.            Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant.  Sh.P.B.Sharma, Advocate has appeared on behalf of respondent No.1, none has appeared on behalf of appellant as well as respondent No.2.

6.         In appeal, it was contended by the appellant/complainant that while dismissing the complaint in limini the learned District Forum has failed to consider that there is a continuous cause of action in favour of the complainant which continuously arose in favour of the complainant for rectification of the defects in the set, as the mobile set was handed over for rectification of defects in the mobile set on 6.4.2009 which was retained by the OPs till 5.5.2009 and on 5.5.2009 the OPs handed over the mobile set with assurance that the same will function properly and all the defects have been removed. On the assurance of OP No.2 the complainant received the set after handing over the job sheet issued by OP No.2 against the mobile set on 6.4.2009 but on that very date, the complainant found that the mobile set is not working properly and thus finding no other alternative, the complainant again approached the OP No.2 and complained about the defect in the mobile set. The OP No.2 retained the set and till date the set is in custody of OP No.2 but these facts have been ignored by the learned District Forum and reached to the conclusion that the set is without any warranty. The learned District Forum further of its own has come to the conclusion that the writing as noted down upon Annexure C-2 are imaginary and not of OP No.2 as the same can be narrated by only OP No.2 after issuance of notice but the learned District Forum without considering these facts of its own reached to a conclusion that the writing upon the job sheet is not of service centre and came to the conclusion that the writing cannot be relied upon. The learned District Forum failed to consider that the complainant is bona fide purchaser and has no intention to drag himself into litigation. The OPs failed to redress the grievances of the complainant and a great mental tension, agony has been caused to the complainant due to the act of the OPs but the learned District Forum failed to consider these facts that the set is in possession of the OPs and OPs have not done the needful till date. The learned District Forum failed to consider the fact on record that the complainant served a legal notice and nowhere in the reply to the notice, the OPs have refused the facts of the complainant. The learned District Forum passed the impugned order in a haste without considering these facts, which are sufficient for the issuance of notice to the OPs. It is, therefore, respectfully prayed that appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

7.         We have heard the learned counsel for the respondent No.1 who has also placed on record the written arguments on behalf of respondent No.1 i.e. Paras Enterprises as none appeared on behalf of appellant as well as respondent No.2.

8.         We have heard the learned counsel for respondent No.1 and we have gone through the complaint, appeal and other documents also.  It is admitted fact that appellant had purchased a Sony Eric. K530 Mobile for a sum of Rs.7800/- from respondent No.1 vide bill dated 10.4.2008. As per the contention of the appellant that soon after the purchase, the said mobile set started giving problems for which the appellant visited respondent No.2 many times but the defect in the mobile could not be removed. Finally, the appellant sent a legal notice to the respondents when nothing was done, the appellant filed a complaint before the learned District Forum.  On the date of preliminary hearing i.e. 19.8.2009 the bench put a query regarding the job sheet dated 6.4.2009 and on the point of limitation. The learned counsel for the appellant sought adjournment, which was granted for 21.8.2009. It is pertinent to mention here that the counsel for the appellant was given adequate opportunity to explain his point of view on the issue sought to be clarified but the learned counsel for the was appellant neither able to satisfy the bench on the point of limitation nor was able to place on record even the photocopy of the job sheet dated 6.4.2009. Moreover the allegation made by the appellant that the service centre i.e. respondent No.2 on 6.4.2009 had handed over the above said mobile set to the appellant without any repair, the complainant had failed to prove this allegation by filing any cogent evidence, meaning thereby in the absence of any document which shows that the complainant took his defective mobile set for repair to the respondent No.2 on 6.4.2009 and the respondent No.2 had returned the same without removing the defects could not be believed. It is pertinent to mention here that there is only one job sheet i.e. of dated 5.5.2009 which is placed on file by the appellant for the mobile set purchased by the appellant on 10.4.2008, meaning thereby that the complainant never took this mobile set to the service station for repair on 6.4.2009.  Rather the complainant took this set to the service centre for repair first time on 5.5.2009 when its warranty had already expired on 8.4.2009. This fact that the mobile set was never taken to the respondents on 6.4.2009 is further confirmed from the legal notice on 29.5.2009. If the appellant had taken the above said mobile set to the respondents on 6.4.2009 then the appellant would have mention this fact in the said notice but there is nothing mentioned about this fact in the legal notice. As regards the contention made by the complainant in appeal that the learned District Forum has wrongly concluded that the writing upon the job sheet i.e. Annexure X is not of a service centre. The perusal of Annexure X shows that no doubt that on the top there is certain hand written note but in the absence of signature of any authorized person of the service centre and also in the absence of any stamp of the service centre, this contention of the appellant seems to be baseless. Rather it creates a doubt in our mind that the writing upon the job sheet has been done by the complainant just to bring the defective mobile set within a limitation period. Had the complainant taken his mobile set for repair to the service centre on 6.4.2009 then the service centre employee must have issued a job sheet and handed over the same to the complainant but the complainant had even failed to show the photocopy of the same to prove his bona fide that the complainant had deposited the said defective mobile set with the service centre on 16.4.2009. Hence, the learned District Forum while dismissing the complaint in limini has rightly concluded that the above said mobile set is out of warranty.

9.         With the foregoing discussion, the appeal filed by the complainant is dismissed as devoid of merit and the order passed by the learned District Forum is upheld. The parties are left to bear their own costs. 

10.       Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                           

13^th December, 2010.