DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 331 of 30-05-2014

Decided on 09-03-2015

Dr. Manuja aged about 37 years D/o Dr. Gulshan Rai, R/o B-15, Thermal Colony, Bathinda.

…...Complainant

Versus

Shree Balaji Enterprises, Near Gole Diggi, Opposite J & K Bank, Bathinda, through its Proprietor/Partner

Adev Electronics, 20 Krishna Market, Bibi Wala Road, Bathinda, through its authorized person

Sony India Pvt. Ltd., A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi 110 044, through its Chairman/Managing Director/ General Manager

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. Surinder Mohan, President

Smt.Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

Present :

For the Complainant : Sh. Gaurav Aggarwal, counsel for complainant.

For the opposite parties : Sh. Raj Kumar Goyal, counsel for OP No. 1.

Sh. Vinod Garg, counsel for OPs No. 2 & 3.

O R D E R

Surinder Mohan, President

Brief facts are that Dr. Kewal Adiya purchased a mobile set of Sony Xperia C 2004 vide invoice No. 760 dated 2-10-2013 for Rs. 14,000/- from OP No. 1 who is authorized dealer of OP No. 3. This mobile was purchased to gift the same to her sister Dr. Manuja, complainant. OP No. 2 is authorized service centre of OP No. 3. On 5-10-2013, mobile set started giving trouble such as hanging, automatically switch off, mal-functioning of camera etc., The complainant approached OP No. 2 but he refused to give job sheet. On 10-10-2013, OP No. 2 demanded one week time for re-installation/updating software. On 17-10-2013, mobile hand set was collected but it again created problem on 19-10-2013. On 4-1-14, a request was made to change the mobile. Even e-mail was sent during the period 1-4-14 to 10-4-14. That due to fraudulent as well as negligent act and conduct of OPs, purpose remained unfulfilled for which the mobile set was purchased. The complainant as well as her brother suffered mental and physical harassment by visiting office of OP No. 2 again and again as well as monetary loss for which, complainant deserves to be compensated to the tune of Rs. 50,000/- besides cost of mobile alongwith interest @24% P.A.

In written version, OP No. 1 has taken usual preliminary objections regarding maintainability and locus standi, and that complaint has been filed just to put pressure upon OP to extort money. On merits, it is admitted that mobile hand set was purchased from OP NO. 1 and that the applicant came to the shop of OP No. 1 regarding defect in the mobile set and was advised to visit OP No. 2. It is the duty of OP No. 2 to repair the set. It is pleaded that if any order is passed either to return the mobile set or to return money, then liability may kindly be fastened upon OP No. 2. OP No. 1 is only dealer and it is the duty of OP No. 3 either to change the set in question or to return the money. Request of applicant has rightly been declined being illegal. Other paras of complaint have been denied and OP No. 1 prayed for dismissal of complaint.

In a separate written version, OPs No. 2 & 3 have also pleaded that as per record of the company, complainant had purchased a Sony Xperia C 2004 mobile phone for a sum of Rs. 14,000/- on 2-10-2013 after a detailed demonstration of the features, functions, applications by OP No. 1 and after satisfying herself with the condition of mobile phone. OP No. 3 provides a warranty of one year on its products from the time of its original purchase and the liability strictly lies in accordance with the terms and conditions of the warranty provided by it. It cannot be held liable for the claims falling outside the scope of warranty. The complainant never approached OP No. 2 on 5-10-2013, 10-10-2013 and 17-10-2013 to tender the hand set for rectification. Thus, the allegations made by complainant for non-issuance of job sheet dated 5-10-2013, 10-10-2013 and 17-10-2013 are false and baseless. The complainant is incorporating false facts to mislead the Forum. The complainant after enjoying hand set for almost four months, without any sort of defect, approached the authorized service centre for the first time on 6-1-2014, 7-2-2014 and lastly on 28-3-2014. Upon inspection some minor issues were found which were duly rectified and same was ready for delivery. However, after submitting the subject mobile phone for the last time on 28-3-2014, the complainant, despite getting the telephonic intimation to collect the handset, did not pay any heed to collect the same. The complainant started demanding a new and sealed box handset from answering OPs. It is admitted that complainant had sent e-mail dated 31-3-2014 wherein complainant demanded a new sealed handset. In reply, service engineer called up the complainant to assure perfect working of the mobile hand set and requested to collect the same but complainant refused to collect hand set which clearly shows the high handed attitude of the complainant. A written communication dated 14-7-2014 was also sent to complainant to collect the mobile phone but all efforts of answering OPs went useless. Other paras of complaint have been denied and OPs No. 2 & 3 also prayed for dismissal of complaint.

In order to prove the case, complainant tendered into evidence Ex. C-1 short affidavit of Dr. Manjua; Ex. C-2 Invoice dated 2-10-2013 for Rs. 14,000/-; Ex. C-3 Job sheet dated 6-1-2014; Ex. C-4 Job Sheet dated 7-2-2014; Ex. C-5 Job Sheet; Ex. C-6 Job Sheet dated 28-3-2014; E-mails Ex. C-7 to Ex. C-17 and Ex. C-18 letter dated 14-7-2014 sent by OP No. 3 to complainant.

In order to rebut this evidence, opposite party No. 2 & 3 tendered Ex. OP-1/1 & OP-1/2 affidavits of Meena Bose, authorized signatory; Order dated 23-7-2013 of Hon'ble Delhi High Court Ex. OP-1/3; Resolution dated 4-7-2011 OP-1/4 and Important Information Ex. OP-1/5.

We have heard learned counsel for the parties and have gone through the file very carefully.

In this case, as per Invoice Ex. C-2, the mobile hand set was purchased by Dr. Manuja. Although Job Sheets have been placed on file but complainant has not led legal evidence in this case. Ex. C-1 is short affidavit of Dr. Manuja wherein it is deposed :

“1. That the deponent is fully aware of the contents of the present complaint and the same as been drafted by my counsel as per instructions.

2. That the contents of the complaint may kindly be read as part of the present affidavit.”

We feel, it is not a legal evidence. Complainant should have given a detailed affidavit regarding her allegations which also gives a right to OPs to cross examine the complainant to elicit truth. In III (2005) CPJ 642 with the title S Kumar Vs New India Assurance Company Ltd., & Anr., the Hon'ble State Commission, U.T. Chandigarh, was of the view that complainant instead of leading proper evidence merely deposed that contents in complaint be read as evidence by way of affidavit. It was observed that such affidavit cannot be treated as legal evidence and no reliance can be placed on mere pleadings contained in complaint. In this manner, complainant has not led legal evidence in support of her case.

Ex. C-18 reveals that OP No. 3 gave following three options to complainant regarding her mobile hand set :-

Option 1 : To exchange the product with same or similar value model.

Option 2 : Exchange of product with any current lineup Sony Xperia model by paying MRP to MRP difference.

Option 3 : Refund of product purchase value .

This letter has been placed on file by the complainant herself. Learned counsel for complainant suffered a statement on 14-10-2014 that as per Ex. C-18, complainant is ready to receive the cost of mobile hand set subject to payment of cost of this complaint meaning thereby complainant did not accept the offer of OP No. 3. Letter Ex. C-18 is very clear that Company is unable to comply with the request of complainant for any compensation. In other words, Company bluntly refused to pay any compensation.

As observed earlier, complainant has failed to lead legal evidence in support of her complaint as affidavit tendered by complainant cannot be read into evidence. There is no documents on file to hold that there is any manufacturing defect in the mobile hand set. The minor problems/defects pointed out in the Job Sheets are normal problems which can be rectified. As the complainant has not led any legal evidence, there is no force in the complaint and the same stands dismissed.

Since OP No. 3 had given three options to complainant, but she failed to exercise any of these option, we feel that ends of justice will be met that complainant should be given one more chance to avail any of these three options. Complainant may approach OP No. 3 to avail any option out of aforesaid three options offered by OP No. 3 to her within 15 days from the date of receipt of this order.

Let certified copies of order be communicated to the parties free of cost and file be consigned to the record room. Announced :

09-03-2015

(Surinder Mohan )

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member