Punjab

StateCommission

FA/28/2014

Sony India Private Limited - Complainant(s)

Versus

Tajinder Singh and others - Opp.Party(s)

Amit Arora

05 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,   PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No.28 of 2014                                                      

            Date of institution  :    09.01.2014

Date of decision     :    05.03.2015

 

Sony India Private Limited, A Company incorporated under the Companies Act, 1956, having its Registered Office at A-31, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044.

…….Appellant/Opposite Party No.1

Versus

1.      Tajinder Singh S/o Harbans Singh, C/o Friends Transport,      Opp. Jalandhar Palace, Kapurthala Road, Jalandhar.

                                                                   …Respondent/Complainant

2.      Arora T.V. Center, near Preet Hotel, Nakodar Road, Jalandhar.

3.      M/s Mobile Point, Shop No.1, Basement, Bajwa Complex        Model Town, Jalandhar.

                                          ….Respondents/Opposite Parties No.2 & 3

First Appeal against the order dated 24.10.2013 of the District Consumer Disputes Redressal Forum, Jalandhar.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President

                        Mr. Baldev Singh Sekhon, Member

                        Mrs. Surinder Pal Kaur, Member

Present:-

 

          For the appellant            : Shri Amit Arora, Advocate

          For the respondents      : Ex parte

 

 

JUSTICE GURDEV SINGH,  PRESIDENT:

 

                    The appellant/opposite party No.1 has preferred this appeal against the order dated 24.10.2013 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, “District Forum”), vide which the complaint filed by Tajinder Singh, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act”), was allowed against this opposite party and it was directed to replace the mobile handset of the complainant with a new one of the same make and model, with a fresh warranty and in the alternative, to refund its price i.e. Rs.38,000/-. It was also directed to pay Rs.5,000/- in lumpsum, on account of the compensation and litigation expenses.

2.           The complainant filed complaint against appellant/ opposite party No.1 and respondents Nos.2 & 3/opposite parties Nos.2 & 3 for directing them to pay Rs.38,000/-, as cost of the mobile, along with interest @ 18% per annum from the date of payment till the realization of that amount; to pay Rs.50,000/-, as compensation for the harassment suffered by him; and Rs.5,000/-, as cost of litigation. He alleged therein that opposite party No.1 is doing the business through opposite party No.3 for marketing and selling of its products and opposite party No.2 is the authorized service centre thereof. On 18.03.2013, he purchased one mobile make Sony, Model No. XPERIA Z on payment of Rs.38,000/- from opposite party No.3, vide cash memo No.1679 of that date. At that time, he was assured regarding the quality and good performance of this handset and he was also given one year warranty. He purchased this mobile set for his personal use, as he is doing the business of transportation and had been using the same upto the first week of May, 2013. In that month, it started creating trouble and had switched off automatically and stopped working. He tried to restart the same, but could not succeed. He made a complaint to opposite party No.3 regarding the working thereof and on the asking of that opposite party, approached opposite party No.2 on 31.05.2013, who took the mobile set from him and assured that the same would be set right, after removing the defect by the engineers and in case of non-removal of the defect, the same would be replaced.  The mobile set was returned to him after two hours and he was told that the same was not repairable and he could get the same replaced. He asked that opposite party to issue the job card or to give the same in writing, but it refused to do so. He visited the office of opposite parties a number of times, but the mobile set was not replaced and the matter was put off on one pretext or the other. This act of the opposite parties amounts to deficiency in service and adoption of unfair trade practice. As a result thereof, he suffered mental tension, harassment, inconvenience and financial loss.
3.           Only opposite party No.2 put in its appearance before the District Forum, but failed to file the written reply and ultimately, absented itself. All the opposite parties were proceeded against ex parte before the District Forum.     
4.           To succeed in the complaint, the complainant proved on record his affidavit Ex.C-A and the documents Ex.C-1 to Ex.C-3. After going through that evidence and hearing learned counsel on his behalf, the District Forum allowed the complaint, vide aforesaid order.
5.           We have heard learned counsel for the appellant/ opposite party No.1, as no one appeared on behalf of respondent No.1/complainant and respondents Nos.2 & 3/opposite parties Nos.2 & 3. We have also carefully gone through the records of the case.
6.           It was submitted by the learned counsel for the appellant/opposite party No.1 that no service was effected upon this opposite party by the District Forum and it was wrongly proceeded against ex parte.  That itself is a ground for setting aside the ex parte order. He further submitted that it was wrongly concluded by the District Forum that the complainant proved on record that the mobile set had become defective. The defect therein could have been proved only by means of expert evidence, but no such expert evidence was produced. In these circumstances, the finding recorded by the District Forum is liable to be set aside.
7.           A perusal of the zimni orders passed by the District Forum shows that the complaint was admitted on 14.06.2013 and notices were ordered to be issued to the opposite parties for 16.07.2013. Notices to opposite parties Nos.2 & 3 were served through the Peon, whereas notice to the present appellant/opposite party No.1 was sent through speed post on 25.06.2013. The same was not received back on the date fixed. No order was passed by the District Forum on 16.07.2013 for proceeding the opposite parties ex parte and the complaint was adjourned to 26.07.2013 for awaiting their appearance.  It was on that date that opposite party No.1 was proceeded against ex parte, by making use of the presumption that it must have been served on account of the non-receipt of the registered cover.
8.           There is no provision in the Act or in the Civil Procedure Code for service of notice upon the opposite party/defendant through speed post. That notice was required to be sent through registered cover (AD) and the first illegality was committed by the District Forum, by sending the same through speed post. In those circumstances, no such presumption of service could have been drawn. Even if it is assumed that such a presumption could have been drawn, even then the District Forum was not justified to draw that presumption on 26.07.2013, for which the notice was never sent to opposite party No.1. It had no notice of that date. Therefore, the order passed by the District Forum, proceeding against this opposite party ex parte, cannot be sustained and it itself is a ground for setting aside the impugned order.
9.           Accordingly, the appeal is allowed, the order passed by the District Forum is set aside and the complaint is remanded back to it for deciding the same afresh from the stage of the filing of the written reply.
10.            Parties are directed to appear before it on 15.04.2015. Records of the District Forum be returned immediately.
11.           The sum of Rs.21,500/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
12.           The arguments in this case were heard on 23.02.2015 and the order was reserved.  Now, the order be communicated to the parties.
13.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

 

                                                        (JUSTICE GURDEV SINGH)

                                                                      PRESIDENT   

                                                         

 

 

                                                        (BALDEV SINGH SEKHON)

                                                                        MEMBER

                                                         

 

 

                                                          (SURINDER PAL KAUR)

March 05, 2015                                          MEMBER

(Gurmeet S)