Heard learned counsel for the appellant virtually.

2.                      None appears for the respondent.

3.              This appeal is  filed  U/S-15 of erstwhile  Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to  with reference to their respective status before the learned District Forum.

4.             The case of the complainant in nutshell is that the complainant  had purchased a mobile set on 01.10.2017 from OP No.1 on payment of Rs.18,000/-. After 45 days of purchase the mobile set reported multiple defect for which he went to OP No.1 & 2  on 21.11.2017. It was repaired on that day. The complainant alleged that the defect again appeared in the mobile set. The complainant approached OP No.1 & 2 but they referred the matter to OP No.1. Inspite of his approach to Ops on several occasions the defect could not removed. Therefore, alleging about deficiency of service, the complaint was filed.

5.           The OPs  filed written version stating that they have already repaired the mobile set to the satisfaction of the complainant. There is no deficiency of service on the part of the Ops.

6.              After hearing both the parties, learned District Forum passed the following order:-

                     Xxxx              xxx                xxx

 “  The Opposite party No.3  supra is hereby directed to pay the price of the mobile set i.e. rs.18,000/-(Rupees Eighteen thousand only) in place of the alleged defective devise, inter alia to pay Rs.10,000/-(ten thousand) as compensation and a sum of rs.5000/-(Rupees five thousand) towards the cost of litigation to the complainant.

ii. All the above directions shall be complied within 30 days of receipt of this order, failing which, the total sum shall carry 12% interest per annum till its realization.”

7.          Learned counsel for the appellant submitted that learned District Forum committed error in law by not going through the materials produced by the complainant and the Ops. According to him the complainant is required to prove the deficiency of service on the part of the OP. He submitted that the job card produced by the complainant on 21.11.2017 clearly proves that he has got the defect recognized with utter satisfaction. But  Learned District Forum  has not considered the same.

8.           Learned  counsel for the appellant further  submitted that in the instant case the allegation being not proved by the complainant with regard to deficiency of service or defect in service by the OP, the observation of the learned District Forum is unwarranted. He submitted that no expert opinion has also not been taken by the complainant to find out the manufacturing defect in the mobile set as to claim the sale price or the new mobile set as ordered by the learned District Forum. Therefore, he submitted to set-aside the impugned order  by allowing the appeal.

9.           Considered the submission of learned counsel for the appellant,  perused the DFR and impugned order.

10.           No doubt it is settled in law that the complainant has onus to prove the deficiency of service on the part of the OP. The complainant, in order to prove his case has produced two documents with affidavit. It is revealed from the cash memo that he has purchased Samsung mobile set  on payment of Rs.18,000/-  from OP No.1. The copy of the job card shows that he has produced the mobile set before the OP on 21.11.2017. Such job card shows that the defect has been removed to his satisfaction. The complainant alleged that after some days against some defects appeared in the mobile set and he has  brought said mobile set to OP No.2 to remove the defects. But the Ops did not accede to his request. No document is filed by the complainant in this regard. The affidavit of the complainant is also silent on what date he has visited the Ops to remove the defect for the second time. The affidavit of complainant is not clear about the conversation between the OP No.1,2 and complainant. Learned District Forum has not considered such all facts in their impugned order. 

11.           No evidence has been added by the complainant to prove further defects appeared in the mobile set. Learned District Forum ruled out expert opinion but Section-13(1)© of the Act is clear to show that in case of defective goods the expert opinion should be called for to find out the defect in the goods. 

12.                  Be that as it may, the appreciation of the materials by the learned District Forum is found to be not in consonance with law. On the otherhand the complainant has failed to prove the deficiency of service on the part of the Ops.When complainant failed to discharge his onus, plea of OP need no further discussion.  

                      In the result, the impugned order of the learned District Forum is liable to be set-aside and it is set-aside. Appeal stands allowed. No cost.

                      Statutory amount with accrued interest  be refunded to the appellant on proper identification.  

                      Free copy of the order be supplied to the respective parties or they may download same from the confonet  or webtsite of this  Commission to treat same as if  copy of order received from this Commission. 

            DFR be sent back forthwith.