Punjab

Ludhiana

CC/20/193

Vir Vikram Singh - Complainant(s)

Versus

Shri Sachidanand N.K.Gallery - Opp.Party(s)

Jishu Dhir

02 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:193 dated 21.09.2020.                       

                                 Date of decision: 02.11.2023.

 

Vir Vikram Singh aged about 41 years son of late Sh.Harbans Singh r/o Flat No.27 SF, Eldeco Estate One, VPO Hussainpura, Ludhiana.                                                                                                                    ..…Complainant

                                                Versus

1.Shri Sachidanand N.K.Gallery, B-II-1860, (Corner Shop) Mata Rani Chowk, Ludhiana-8 through its Partner/Proprietor/Authorized Signatory.

2.M/s Xiaomi Technology India Pvt. Ltd, 2^nd Floor, Ozone Manay Tech Park Hongasandra, Bangalore, Karnatka-560-068 through its Manager/Authorized Signatory.

3.M/s Mi Service Station, Lally’s ArcDE, Bii/1086/1, Shop no.19, First Floor, Gole Market Model Town, Near Levi’s Showroom, Ludhiana-141001(Punjab) through its Manager/Authorized Signatory.

…..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act as amended upto date.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Jishu Dhir, Advocate.

For OP1 and OP3          :         Exparte.

For OP2                         :         Complaint already stands dismissed as

withdrawn vide order dated 12.06.2023.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case of the complaint are that the complainant has purchased one mobile set make Redmi A3 (4-64) bearing IMEI No.866320040995735 from OP1 vide invoice No.GST-12111 dated 27.08.2019 for an amount of Rs.13,500/- which was manufactured by OP2. At the time of purchase, the OP1 allured the complainant that the mobile phone set in question is of a high quality and has no match with any other mobile set available in the market at present. OP1 further allured the complainant regarding providing of best after sale service to the complainant qua the product for period of one year from the date of purchase and also issued a warranty certificate to the complainant in respect of the mobile set. After the purchase, when the complainant started using the said mobile set, the same was giving problem of having hanging and lagging and stopped working completely. Thereafter, the complainant approached the OP1 along with the mobile set, who took the photographs of the set and took the photocopy of the bill and asked the complainant to come after one week. After expiry of period of one week, the complainant again visited the office of OP1 but OP1 did not give any proper response to the complainant and it was told by OP1 that the set not in a position to repair and they cannot repair the said set. Thereafter, despite repeated approach with the OPs by the complainant with the request to repair the mobile set or replace the same within new one, they always postponed the matter on one or the other false pretext. The complainant has to run from pillar to post to get the needful done from the OPs but to no effect. The said act and conduct of OPs claimed to be deficiency in service and due to the unprofessional attitude of the OPs, the complainant has suffered mental harassment, pain, agony etc. So, by filing the present complaint, the complainant has prayed for issuing directions to OPs to replace the said defective mobile set with some other better new model or to refund the bill amount to the complainant along with interest @18% per annum and also to pay compensation of Rs.50,000/- besides litigation expenses of Rs.12,500/-.

2.                Notices were sent to the OP1 and OP3 through registered posts but none turned up on their behalf despite service of notices and as such, OP1 and OP3 were proceeded against exparte vide order dated 14.01.2021.

3.                However, complaint against OP2 stands already dismissed as withdrawn vide order dated 12.06.2023.  

4.                In support of his claim, the complainant tendered his affidavit Ex.CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 copy of legal notice dated 22.01.2020 sent to the OPs, Ex.C2 to Ex.C4 are the copies of postal receipts and Ex.C5 is the copy of tax invoice dated 27.08.2019 issued by the OP1 to the complainant qua purchase of the mobile in question and closed the evidence. 

5.                We have heard the arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed documents produced on record by the complainant.

6.                The complainant purchased the mobile set in question from OP1 on 27.08.2019 vide invoice Ex.C5 which was manufactured by OP2. Further, the complainant has alleged that soon after its purchase, the mobile set in question developed a snag and finally stopped working. He further alleged that the matter was brought into the notice of OPs but they neither removed the defects nor replaced the mobile of the complainant and issue remained unresolved. The complainant also exhibited the copy of legal notice dated 22.01.2020 served upon the OPs as Ex.C1 and its postal receipts as Ex.C2 to Ex.C4 as well. However, the complainant also produced one edited report of MI Service Centre, Model Town, Ludhiana but the same was not tendered in evidence by the complainant. Perusal of the same shows that it carries the questions & answers which is reproduced as under:-

“Q:Mere mob ki screen toot gyi h. Mob liye abhi 20 days hi huye h touch shi chal rhi h. Kya guarantee me screen change ho jeyegi. Pls ans me….

A:Bhai 3362 ruaye me thukti hai. Mujhe warranty coverage mil gyi lekin.

………”

7.                So, from this document, it is apparently clear that in fact the defect has occurred due to breakage of screen and same is clearly attributable on account of negligent act of handling of the mobile by the complainant. The story that the mobile set started hanging and lagging and stopped working completely due to some manufacturing defect gets contradicted by the said document itself. So, the complainant has failed to discharge the initial burden of proving deficiency in service on the part of the opposite parties by way of any credible evidence.

8.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."

                   The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence. 

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

 

Announced in Open Commission.

Dated:02.11.2023.

Gurpreet Sharma