BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No. 38 of 2017.
Date of Instt.:09.02 .2017.
Date of Decision: 15.11 .2017.
Harmeet Singh son of Kuljit Singh, resident of Fatehabad, Tehsil and District Fatehabad.
..Complainant
Versus
1.M/s Top Shop Near Guru Nanak Kitab Ghar, Palika Bazar, Fatehabad, Tehsil and District Fatehabad, through its Proprietor/Partner.
2.M/s Chugh Telecom near M.C. Market, Shop No.81, 82, 83, Sirsa District Sirsa through its Proprietor.
3.Sony Private Limited, A-31, Mohan Cooperative Industrial Estate, Mathura Road, Delhi-11004 through its Manager/Authorized Signatory.
..Respondents/OPs
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh.R.K.Verma, Adv.for the complainant.
Sh. Dinesh Gera, Adv. for the OPs.
Order
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OPs with the averments that he purchased mobile of Sony Company, Model XP-C4-E5363 for an amount of Rs.24,000/- vide Bill No.7249 dated 23.10.2015 from Op No.1. OP No.1 had also assured to the complainant that there was a warranty of one year on the mobile and during this period in case of any manufacturing defect is found in that eventuality the mobile will be replaced with one of the same model. It is further submitted that the OP No.2 is Authorized Service Centre and OP no.3 is manufacturer of the mobile. Therefore the complainant is the consumer of OPs as defined in the Consumer Protection Act, 1986. It is further stated that after some time the complainant noticed that there is automatic restart and touch problems in the above said mobile. Therefore the complainant contacted the OP No.1 and handset was repaired temporarily by him for 5-6 times and every time the OP No.1 told the complainant that now no problem of any kind in the functioning of mobile will be occurred. It is further stated that in the month of July, 2016 the said mobile became dead and the complainant approached to Op No.1 who gave the address of OP No.2 and as such the complainant approached to Op No.2. The OP No.2 kept the mobile with him but did not issue any job-sheet to the complainant on the ground that the internet is not working. Thereafter the complainant approached to Op No.1 several times but the matter was delayed by him on one pretext or the other and finally in the month of August, 2016 OP No.2 returned the said mobile to the complainant stating that the mobile was water damaged and the same cannot be repaired or replaced. It is further stated that thereafter the complainant served a legal notice dated 21.09.2016 to the OPs for retuning the original cost of the mobile amounting to Rs.24,000/- along-with interest. The complainant also requested for returning of the original cost of the mobile but finally the OPs flatly refused to do so. It is further stated that the above said act of the OPs amounts to deficiency in service and unfair trade practice and as such the complainant is entitled for payment of original cost of the mobile along-with compensation. Hence the present complaint.
2. On notice the OPs appeared and resisted the complaint by filing a joint written statement wherein various preliminary objections with regard to maintainability, cause of action, territorial jurisdiction have been raised. On merits, it is submitted that the present complaint has been filed on the pretext of baseless allegations. After receiving the notice the OPs made efforts to trace-out the service details of the said mobile but the OPs could not find any service details with respect to the mobile in question. The OPs have thoroughly checked their system in order to find the details related to the service of the mobile but no such details were available with the OPs, it clearly shows that the handset in question was never brought in any of the service center of the OP no.3. It is further submitted in the written statement that the complainant has not been able to furnish the detail with respect to the aforesaid handset nor any supporting document have been annexed by the complainant to prove his case which means that the complainant never approached the OPs raising any kind of issues with respect to the handset in question. The complainant never deposited the handset for inspection and unless the same is done the issue pertaining to the handset cannot be resolved. It is further submitted that the allegation made in the complainant are without any evidentiary proof and no documents has been annexed by the complainant in support of his allegations. It is further stated that deficiency in service on the part of OPs cannot be questioned without any material evidence. The OPs in support of their contentions have relied upon the judgments rendered by Hon’ble National Commission in case titled as Punjab Tractor Limited Vs. Veer Partap (1997) II CPJ81(NC) and case titled as Cabina Cycle Emporium Vs. Thajes Ravi P.O. (1992) I CPJ 97. The OPs further prayed for dismissal of the complaint being without any merit.
3. In evidence the complainant tendered his affidavit as Annexure CW1 wherein the averments made in the complaint have been affirmed. The complainant also tendered in evidence documents as Annexure C1 to Annexure C3 and closed the evidence. On the other hand Sh.Priyank Chauhan filed his affidavit as Annexure RW1 on behalf of OPs in support of their case. The OPs also tendered in evidence documents as Annexure R1 and R2.
4. The learned counsel for the complainant in his arguments reiterated the averments made in the complaint and further contended that fault crept in the mobile during the warranty period and ultimately it also became dead during the warranty period. However the mobile was neither repaired nor replaced by the OPs. Thus the OPs have violated the terms and conditions of warranty and the same amounts to deficiency and unfair trade practice on the part of OPs in rendering service to the complainant. On the other hand the counsel for the OPs vehemently contended that the complainant never approached the OPs or any of their service centre regarding complaint in his mobile. Therefore the question of repair or replacement of mobile by the OPs does not arise and as such the present complaint is liable to be dismissed.
5. We have examined the pleadings of the parties have also considered the arguments put-forth by the learned counsel for the parties and have also appreciated the evidence produced on record by the parties.
6. In the present case the burden of proof is upon the complainant to prove that the fault crept in the mobile or the mobile became dead during the warranty period. However no document or expert opinion has been produced by the complainant that the mobile was having inherent defect. In absence of any expert opinion or documentary evidence it cannot be held that the mobile in question was having inherent defect or became dead. Secondly the burden of proof was upon the complainant to prove that he approached to the OPs or their authorized service centre for repair of the mobile. However no job-sheet or other documents has been produced by the complainant that he approached to the OPs or their approved service centre for repair of the mobile. Therefore the OPs cannot be held liable for not repairing or replacing the mobile in question of the complainant.
7. In view of the aforesaid discussion we are of the considered opinion that the complainant has failed to prove any deficiency or unfair trade practice on the part of OPs in rendering service to him. Resultantly, the present complaint is dismissed with no order as to costs. A copy of this order be furnished to both the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.15.11.2017
(Ansuya Bishnoi) (R.S.Panghal) (Raghbir Singh)
Member Member President
DCDRF, Fatehabad
