Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant  has filed the instant complaint under section 35 of the Consumer Protection Act, 2019  on the allegations that he purchased mobile Apple 64 GB colour Gold I PH 11 PRO No.352820114071959 vide bill No.487 dated 5.11.2020 for Rs.84,000/- from Opposite Party and at the time of purchase, the Opposite Party assured the complainant that GST has been included in the amount of Rs.84,000/-, but regarding this GST, there is no mention in the bill. Further alleges, there is manufacturing defect in the Mobile Set in question and in this regard, the complainant approached the service centre of Opposite Party at Ludhiana, but at that time, the service centre refused to do anything on the ground  that there was no mention of GST amount in the bill itself. At this, the complainant told to the service centre that this bill is included GST and the Opposite Party has charged the GST amount from him, but the service centre did not listen for want of GST amount.   In this way, said conduct of the Opposite Party clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party may be directed to replace the Mobile Set in question with new one or to refund the price of the Mobile Set in question amounting to Rs.84,000/- and also to pay Rs.50,000/- on account of  compensation for causing him  mental tension, physical harassment or any other  relief to which this District Consumer Commission may deem fit be also granted.

2.       Opposite Party  appeared through counsel and contested the complaint by filing  the written version  on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. Admittedly, the complainant purchased the mobile Apple 64 GB colour Gold IPH 11 PRO No. 3528200114071959 vide bill dated 487, but at the time of sale, it was clearly told to the complainant that  he has no GST number  nor the Opposite Party has received the amount on account of GST and at the time of purchase of the misappropriated, the complainant was well within the knowledge about this fact. Actually, the rate of mobile of Apple 64 GB 11 PRO is about Rs.99,000/- including GST, but the Opposite Party sold the said mobile to the complainant only for Rs.84,000/- and the same amount was  received by the Opposite Party from the complainant  and hence, there is no deficiency in service on the part of the Opposite Party.   On merits, the Opposite Party took up the same and similar pleas as taken up by them in the preliminary objections.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.

3.       In order to  prove  his  case, the complainant has tendered into evidence his affidavit Ex.CW1/A  alongwith copies of documents Ex.C2 to Ex.C6 and closed his evidence.

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Party tendered into evidence the copies of documents  Ex.Op1 and copy of reply of legal notice Ex.OP2  and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and  gone through the documents placed  on record.

6.       During the course of arguments, ld.counsel for the Complainant has  mainly reiterated the facts as narrated in the complaint and  contended that the complainant purchased mobile Apple 64 GB colour Gold IPH 11 PRO No.352820114071959 vide bill No.487 dated 5.11.2020 for Rs.84,000/- from Opposite Party and at the time of purchase, the Opposite Party assured the complainant that GST has been included in the amount of Rs.84,000/-, but regarding this GST, there is no mention in the bill. Further alleges, there is manufacturing defect in the Mobile Set in question and in this regard, the complainant approached the service centre of Opposite Party at Ludhiana, but at that time, the service centre refused to do anything on the ground  that there was no mention of GST amount in the bill itself. At this, the complainant told to the service centre that this bill is included GST and the Opposite Party has charged the GST amount from him, but the service centre of the Opposite Party did not listen for want of GST amount.

7.       On the other hand, ld.counsel for the Opposite Party  has repelled the aforesaid contention of the ld.counsel for the complainant  on the ground that aadmittedly, the complainant purchased the mobile Apple 64 GB colour Gold I PH 11 PRO No. 3528200114071959 vide bill dated 487, but at the time of sale, it was clearly told to the complainant that  he has no GST number  nor the Opposite Party has received the amount on account of GST and at the time of purchase of the misappropriated, the complainant was well within the knowledge about this fact. Actually, the rate of mobile of Apple 64 GB 11 PRO is about Rs.99,000/- including GST, but the Opposite Party sold the said mobile to the complainant only for Rs.84,000/- and the same amount was  received by the Opposite Party from the complainant  and hence, there is no deficiency in service on the part of the Opposite Party, but to prove such assertion, the Opposite Party has not adduced any affidavit to corroborate the aforesaid contention of the Opposite Party.

8.       Undisputedly, the complainant purchased mobile Apple 64 GB colour Gold I PH 11 PRO No.352820114071959 vide bill No.487 dated 5.11.2020 for Rs.84,000/- from Opposite Party, copy of bill is placed on record as Ex.C1. It is the case of the complainant that Mobile Set in question is having manufacturing defect and for this, the complainant approached the service centre of Opposite Party at Ludhiana, but said service centre refused to do the needful. Admittedly, the Mobile Set in question started giving problem within warranty period as it was within one year from the date of its purchase. To prove his case, the complainant has produced on record the copy of legal notice Ex.C2, copy of postal receipt Ex.C3, copy of reply of legal notice Ex.C4. It is not disputed that the Mobile Set in  dispute started giving problem within warranty period. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

 Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that

“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.  In the instant case, the AC  in question started giving troubles within warranty period.”

In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that

 “the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

As stated above, the complainant proved all these averments through his duly sworn affidavit Ex.CW1/A and also proved on record the copies of documents Ex.C1 to Ex.C6.  The evidence produced on record  by the complainant remained unrebutted and unchallenged through any cogent and convincing evidence.  As stated above,  to support the aforesaid averments and documents, the Opposite Party  has not tendered any supportive affidavit and in the absence of any duly sworn affidavit of some authorised person  of the Opposite Party  , the averments and documents so produced by the Opposite Party  can not be admitted as gospel truth. In this way, the evidence produced by the complainant alongwith duly sworn affidavit of the complainant Ex.CW1/A is to be admitted as true in the absence of any rebuttal in the shape of affidavit of the Opposite Party who have failed to produce the same to support its defence.   It has been held by the Hon'ble State Commission of Punjab in case  Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that where no supporting affidavit is filed by the tenderer of the documents, these documents could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no affidavit has been produced in support of allegation, the documents so produced not to be treated as evidence of the tenderer of those documents.

9.       Moreover, an advocate appearing on behalf of the parties cannot assume and put himself in the witness box on behalf of parties for filing an affidavit in evidence or bringing on record an important piece of evidence. The documents have been tendered in evidence without any supporting affidavit of Opposite Party  and thus the documents brought on the record, as referred to herein above by ld.counsel for the Opposite Party   cannot be read in evidence per se as it has been held by the Hon'ble State Commission in “Malay Kumar Ganguly versus Dr. Sukumar Mukherjee and others, 2009 (V) RCR Kumar Ganguly versus Dr. Sukumar Mukherjee and others, 2009 (V) RCR Criminal page 1, wherein the Hon'ble Supreme Court, while interpreting Order 13 Rule 4 and 7 documents marked as Exhibited-whether such document is admissible, pleased to held that:

“ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility therefore at later stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross examination in a court of law.”

10.     So, from the entire unrebutted evidence produced by the complainant on record, it stands fully proved on record that the mobile set  of the complainant was suffering from inherent defects.

11.     In view of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant  and the Opposite Party is directed to refund the price of the Mobile Set in question amounting to Rs.84,000/- (Rupees eighty four thousands only)  alongwith interest @ 8% per annum from the date of filing the complaint i.e. 04.08.2021 till its actual realization. Opposite Party is also directed to pay compensation to the complainant for causing him mental tension and harassment to the tune of Rs.5,000 (five thousands only). The compliance of this order be made by Opposite Party within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost and thereafter the file be consigned to record room after compliance.

Announced in Open Commission.

Dated: 19.04.2022.