District Consumer Disputes Redressal Forum,

Amritsar (Punjab)

Consumer Complaint No: 617 of 2015

Date of Institution:  8.10.2015

Date of Decision:  26.4.2016

Rajinder Singh son of S. Kundan Singh 17/C, Officer Colony, Near recruitment Office, Cantt. Road, Amritsar.

                                                                   …Complainant   

Versus       

1. Mr. Jiwan owner of Shivam Camera & LED Repair Centre 1^st Floor, Opp. National Electrical Surya Market, Hall Bazar Amritsar.
2. Mr. Shivam co-owner of Shivam Camera & LED Repair Centre 1^st Floor Opp. National Electrical Surya Market, Hall Bazar Amritsar.

…Opposite Parties.

Complaint Under Section 11 & 12 of the Consumer Protection Act, 1986.

Present:      

For the complainant                In person

For the Opposite parties                   Sh. Inderjit Lakhra Advocate

Coram:      Sh. S.S. Panesar,  President

Ms. Kulwant Kaur Bajwa Member

Sh. Anoop Sharma, Member

Order dictated by Sh S.S. Panesar, President

1. Sh. Rajinder Singh has brought this complaint under Section 11 and 12 of Consumer Protection Act on the allegations that he bought Sony Handicam DCR-SX63E alongwith all the original accessories which includes original Sony charger worth Rs. 2,900/- . It is submitted that on 10^th July, 2015, the complainant gave the original charger of Sony Handicam DCR-SX63E to the opposite parties for its repair for which they charged Rs. 800/- as advance money from the complainant. It is submitted that on 11^th July, 2015 the complainant was needed said handicam for an urgent recording, but on July 10^th, 2015 the complainant found that the charger of the handicam in dispute was not working and so he decided to get it repaired. Unluckily, on the same day, Sony Repair Centre was closed and he had to go to the office of opposite party No. 2 to get the charger of handicam in question repaired. After taking the charger and advance money,  the  opposite parties agreed to return the complainant charger in dispute, but of no effect.  But however, the opposite parties joined the original wire of Sony Charger to the Local Adapter which was easily available in the market at just Rs. 90/-. The complainant objected it, but the opposite parities asked him to come after four days and to get Sony charger after its proper repair. The complainant waited for one month, but he kept making lame excuses.  Since the complainant trusted the opposite parties and did not ask for any receipt while handing over the charger to the complainant. But, however, the complainant having no proof in this regard. After one month, the complainant decided to collect evidence which could prove that the opposite parties took the original Charger and advance money of Rs. 800/- from the complainant, so the complainant started calling opposite parties and recorded those calls as proof in which the opposite parties accepted that they took the charger and advance money from the complainant. The complainant further submitted that this Forum can see in the videos that every time when the complainant called the opposite parties, the opposite parties asked the complainant to come after four and five days to collect his charger. But however, despite lapse of three months, the opposite parties did not return the charger back the complainant. The complainant has five recordings of Mr. Jiwan’s Voice i.e. owner of opposite parties, which the complainant collected by calling opposite parties on Mobile No. 95922-96818. Thereafter, the complainant visited the Opposite Parties, number of times to get his original charger, but to no effect. The complainant suffered loss for which he claims compensation to the tune of Rs. 25,000/- besides Rs. 5,000/- as litigation expenses. Hence this complaint.
2. Upon notice, the opposite parties appeared through their counsel and filed joint written version contesting the same by taking certain preliminary objections therein inter-alia that the complaint is not maintainable; the complaint is a malafide one as  it has just been filed to harass, pressurize and blackmail the opposite parties. No cause of action arose to the complainant to file this complaint and he is not a ‘consumer’ of the opposite parties as defined under the Consumer Protection Act, as the complainant had never availed any service of the opposite parties for consideration, therefore, the complaint is liable to be dismissed; that there is no deficiency in service on the part of the opposite parties; that the complainant has not come to the Forum with clean hands and he is trying to mislead this Forum by mis-representation of facts.  On merits, it is submitted that the complainant is not a ‘consumer’ and had not given original charger of Sony Handycam and Rs. 800/- to the opposite parties at any time. The opposite parties are not aware about such facts. It is also denied that the complainant gave charger worth Rs. 2,900/- to the opposite parties alongwith advance money of Rs. 800/- as alleged. It is submitted that the complainant had visited the opposite parties alongwith sony charger in a very defective condition for its repair. The opposite parties checked the same and since its spare part was not available with them, as such, the opposite parties showed its inability to repair and returned the same on the spot to the complainant at that very moment. Thereafter, the complainant never approached the opposite parties at any time. So question of giving any advance money by the complainant to Opposite Parties does not arise. The opposite parties had neither taken the Sony charger nor any money from the complainant. If any kind of payment was made by the complainant, he must have receipt for the same. Without receipt, no payment is received by the opposite party. It is denied that opposite parties joined the original wire of original Sony charger to the local adapter as alleged. The allegations of the complainant itself established that he had created false evidence against the opposite parties with some ulterior motive and bad intention to black mail the opposite parties. No such conversation took place between the parties.  There is no deficiency in service on the part of the opposite parties. The opposite parties have denied the other allegations leveled in the complaint and a prayer for dismissal of the complaint has been made.
3. In his bid to prove the case, the complainant put in appearance in witness box and tendered his affidavit Ex. C-1 alongwith CD Ex.C2 and closed the evidence.
4. To rebut the aforesaid evidence of the complainant, the opposite parties tendered into evidence affidavit of Sh. Jiwan Ex. OP1, 2/1 and closed the evidence.
5. On the basis of evidence on record, the complainant has vehemently contended that  on 10.7.2015,  the complainant handed over the Sony charger to opposite parties for getting it repaired and also paid Rs.800/- as advance in cash to Mr. Shivam owner of opposite party No. 2. Although the complainant has not produced on record any receipt for payment of advance amount, yet it is the case of the complainant that he lateron collected evidence in the form of CD which proves that not only the payment of Rs. 800/- was admitted, but also original Sony charger was received by opposite party No. 2 for repair from him . It is further proved that opposite party No. 2 has failed to repair or return Sony Handicam DCR-SX63E so far to the complainant. It is the case of the complainant that opposite parties are deficient in service and he is entitled to get the refund of advance amount of Rs. 800/- alongwith Sony charger, besides compensation to the tune of Rs. 25,000/- and an amount of Rs. 5,000/- as litigation expenses from the opposite parties.
6. On the other hands, it is the case of the opposite parties that complainant is not proved to be a ‘consumer’ of opposite parties. It is alleged that the evidence in the shape of CD  produced on record by the complainant, cannot be taken into consideration for deciding the fate of present complaint.  The proceedings before the Fora are summary in nature and if in case, the CD Ex.C2 is to be considered, the summary proceedings will turn into a trial, which is not the intention of legislature while legislating Consumer Protection Act. Since basic requirement of proving himself as a ‘consumer’ for consideration by the complainant is not proved as required under Section 2(i)(d)(ii) of the Consumer Protection Act, no complaint in the present form is maintainable. So called CD Ex.C-2 cannot be looked into for deciding the fate of the present case. It is contended that complaint being false and frivolous is liable to be dismissed with heavy costs under Section 26 of the Consumer Protection Act.
7. We have gone through the thoughtful consideration to the rival contentions.
8. In  the case in hand, the complainant has failed to prove himself to be a ‘consumer’ as required under Section 2(i)(d)(ii) of the Consumer Protection Act. There is nothing on record to presume that any Sony Charger was handed over by the complainant to opposite party No. 2 on the fateful day as alleged in the complaint, nor there is evidence to prove that a sum of Rs. 800/- was given as advance alongwith Sony Charger. Had, the complainant handed over the amount of Rs. 800/-  to opposite party No. 2, the complaint being a prudent person must have asked for receipt for the payment made by him. The very fact that no receipt was either obtained or produced on record clearly shows that story stated by the complainant  is false & fabricated. Further the complainant has placed reliance upon CD Ex.C2 which is not admissible in evidence before this Forum. For proving the voice recorded  in the CD Ex.C2, the voice sample was required to be furnished for comparison purpose, which will turn the summary proceedings into trial. It is not the intention of the legislation while framing Consumer Protection Act that the proceedings under this Act shall turn into a trial. The proceedings under Consumer Protection Act are summary in nature and are to be disposed off within a period of three months on the basis of affidavit.. Since the complainant has failed to make out his case that he is ‘consumer’ falling under the provisions of Section 2(i)(d)(ii) of the Consumer Protection Act, he cannot maintain any complaint under the Act ‘supra’. The instant complaint is nothing, but an abuse of process of law. Consequently, the instant complaint fails and the same is ordered to be dismissed. Copies of order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated:  26.4.2016.

(S.S. Panesar)

                                                           President

                             (Anoop Sharma)            (Kulwant Kaur Bajwa)

                                        Member                        Member