| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.235 of 16-08-2017 Decided on 11-09-2019 Parveen Kumar S/o Sansari Lal R/o Guru Nanak Colony, Ward No.3, Gali 5, Sangrur. ........Complainant Versus 1.M.P.S Telecom Private Limited, 702-A, Arunachal Building, 19, Bara Khamba Road, Canaught Palace, New Delhi-110001, through its Authorized Signatory. 2.HCL Services Limited C/o Wheel India SCM Solution Private Limited, Godn 42-44, Ramesh Nagar, Parbhat Godown, Zirakpur, Tehsil Derabassi, District SAS Nagar, through its Manager. 3.Shri Neelkanth Communication, Lehra Bazaar, Rampura Phul, through its Proprietor/Partner. (Deleted) .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Smt.Manisha, Member. Present:- For the complainant: Sh.Sarabjit Singh, Advocate. Opposite party No.1: Ex-parte. For opposite party No.2: Sh.Kuldeep Singla, Advocate. Opposite party No.3: Deleted. ORDER M.P Singh Pahwa, President The complainant Parveen Kumar (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties M.P.S Telecom Private Limited and Others (here-in-after referred to as opposite parties). Briefly, the case of the complainant is that on 15.2.2016, he purchased one HTC mobile handset for Rs.14,000/- vide bill No.2932 dated 15.2.2016 from opposite party No.3 with one year guarantee/warranty against any defect due to manufacturing or poor workmanship. It is alleged that in the month of October 2016, the mobile handset started creating problem of 'hang' and 'auto switched off'. The complainant immediately approached opposite party No.3, it asked him to approach authorized centre of HTC i.e. opposite party No.2. He through his friend approached opposite party No.2 and requested it to rectify the defect in the mobile handset. After checking, opposite party No.2 asked his friend to pay Rs.650/- if he wants to get defect removed. It also issued service report dated 19.10.2016. Opposite party No.2 illegally charged Rs.650/- from the complainant, which is totally unfair trade practice. It is further alleged that the mobile handset again started creating the same problem and camera problem. The complainant again approached opposite party No.2, but it revealed that the defect is not curable/repairable. He requested opposite party No.2 to replace the mobile handset with new one as it was within guarantee/warranty period. Opposite party No.2 promised to get replaced the defective mobile handset from the company. Opposite party No.2 told the complainant that it will approach him when opposite party No.1 confirmed the same, but he did not receive any intimation from opposite party No.2. He approached opposite party No.2, but it flatly refused to entertain his requests. It is further alleged that the complainant got served legal notice dated 19.1.2017 to opposite parties with the request to replace the detective mobile handset or to refund of its price i.e. Rs.14,000/- alongwith interest. After receipt of notice, opposite party No.2 called the complainant and returned him mobile handset after updating the software, but no job sheet was issued at that time. Now, the mobile handset is lying in dead condition. It is also revealed that due to this act and conduct of opposite parties, the complainant is suffering from mental agony, harassment and financial loss. It amounts to deficiency in service, negligence and unfair trade practice on the part of opposite parties. He has prayed for directions to opposite parties either to replace the defective mobile handset with new one or to refund its price i.e. Rs.14,000/- with interest and to pay Rs.25,000/- on account of mental agony and harassment; Rs.11,000/- on account of deficiency in service and unfair trade practice and cost of litigation to the tune of Rs.5000/-. Hence, this complaint. In view of statement suffered by counsel for complainant, name of opposite party No.3 was deleted from the array of opposite parties vide order dated 17.8.2017. Upon notice, none appeared on behalf of opposite party No.1. As such, ex-parte proceedings were taken against it vide order dated 5.1.2018. Opposite party No.2 appeared through its counsel and contested the complaint by filing written version. In the written version, opposite party No.2 has raised the legal objections that the complaint is not maintainable in its present form. The complainant has no locus-standi or cause-of-action to file this complaint. This Forum has no jurisdiction to try and entertain the complaint. The complaint is false and frivolous and it has been filed to harass opposite parties. It is liable to be dismissed with special costs to the tune of Rs.10,000/- as provided U/s 26 of 'Act'. The complainant suppressed the material facts from this Forum. The complaint is bad for non-joinder and mis-joinder of the necessary parties as HTC India Pvt Ltd being manufacturer of the mobile handsets has not been impleaded as a party. The complainant is not entitled to relief as prayed for. He is not 'consumer' as defined under 'Act'. As per opposite party No.2, actual facts of the case are that the mobile handset was purchased by the complainant on 15.2.2016. The warranty was till 14.2.2017, but one person Mr.Ashish Verma claiming himself as owner of the mobile handset and he was using it, visited the service center for its repair. Mr.Ashish Verma also admitted that the mobile handset was previously shown to his known mechanic and he opened it prior to visiting the service centre. Once the mobile handset has been repaired/opened from any unauthorized agency, it becomes out of warranty as per the terms of warranty. After admitting this fact, Mr.Ashish Verma paid an amount of Rs.650/- as the mobile handset was out of warranty. The mobile handset was repaired accordingly. Thereafter customer never visited opposite party No.2. On merits, opposite party No.2 has reiterated its stand as taken in the legal objections and detailed above. In the end, it has prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavit, (Ex.C1); photocopy of retail invoice, (Ex.C2); photocopy of sale-cum-retail invoice, (Ex.C3); photocopy of legal notice, (Ex.C4); photocopies of postal receipts, (Ex.C5 to Ex.C7) and closed the evidence. To rebut the claim of the complainant, opposite party No.2 has tendered into evidence photocopy of warranty, (Ex.OP2/1); affidavit of Prabhakar Tiwari dated 22.3.2018, (Ex.OP2/2); photocopy of case history, (Ex.OP2/3); photocopy of ELS report, (Ex.OP2/4); photocopy of job sheet, (Ex.OP2/5); photocopy of warranty terms and conditions, (Ex.OP2/6) and submitted written arguments. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for opposite party No.2. Learned counsel for parties have reiterated their stand as taken in their respective pleadings and detailed above. We have given careful consideration to these rival submissions. As per complainant himself, he has purchased the mobile handset in question on 15.2.2016 and there was warranty of one year. He has alleged that firstly, in the month of October 2016, the mobile handset was creating problems of 'hang' and 'auto switched off'. He approached opposite party No.2 through his friend and got the defects rectified on payment of Rs.650/-. Job card dated 19.10.2016 is on file as Ex.C3. The mobile handset was got repaired by one Ashish Verma. A perusal of job card reveals that it is not job card, rather it is sale-cum-retail invoice vide which Ashish Verma has purchased some hardware for Rs.650/-. Therefore, version of the complainant that he approached opposite party No.2 through his friend for rectification of defects stands belied from the documents produced by the complainant himself. Of-course, the complainant has further alleged that later on also, the mobile handset gave same problem and camera problem. He approached opposite party No.2 to remove the defects, but there is no documentary evidence to prove this fact. It is well settled that the complainant is required to prove his case by affirmative evidence. Only evidence to prove his case is his affidavit, (Ex.C1), which is repetition of averments made in the complaint. Ex.C2, is invoice, which only proves purchase of mobile handset. Ex.C3, is another invoice (stated to be job card). It also proves only purchase of some hardware. Ex.C4, is copy of legal notice. Ex.C5 to Ex.C7 are postal receipts. These documents are also not going to prove his case. The complainant has admittedly purchased the mobile handset on 15.2.2016. The warranty was only for one year. The complaint has been filed on 16.8.2017. There is no evidence on record to prove that within warranty period, the complainant was facing any problem entitling him free repair under warranty terms and conditions. For the reasons recorded above, the net conclusion is that the complainant has failed to prove his case. As such, we have no option except to dismiss the complaint. Thus, complaint is hereby dismissed without any order as to cost. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 11-09-2019 (M.P Singh Pahwa) President (Manisha) Member
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