Oral:The present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) has been filed challenging the order dated 16.8.2018 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short “the State Commission”) in Appeal No. 537 of 2016 of the Petitioner against the order dated 27.5.2016 of the District Consumer Disputes Redressal Forum, Ambala (for short “the District Forum”) dismissing the Complaint No. 75 of 2015 of the Petitioner.2. Brief facts of the case are that the Petitioner had purchased Apple 4S Mobile on 5.1.2015 for a sum of 20,000. She found that the phone was heating up and on telephonic call by her to Opposite Party No. 1, she was advised to visit the authorised service centre. She went to authorised centre, i.e. Opposite Party No. 2 on 8.1.2015 where her phone was examined by the engineer and service report No. 10268 dated 8.1.2015 was issued whereby she was advised that the phone was getting heated up because she was using the old software programme and was advised to download the latest software. Dissatisfied she called at Apple Technical Support to resolve the problem but she was advised to visit Opposite Party No. 2 again. On 18.2.2015, she visited Opposite Party No. 2 and deposited her phone with the Opposite Party No. 2 which was returned to her on 21.2.2015 vide service report No. 11983. The issue with phone was same that is that it was heating up. She was again advised to upgrade the software which she refused. She then filed the Complaint before the District Forum claiming replacement of the said phone with a new one along with other benefits.3. Parties led their evidence before the District Forum. The District Forum after perusing the material on record dismissed the Complaint holding as under:“5. At the very outset, it is crystal clear from the document Annexure C-1 that the mobile set in question of Apple 4S was sold by OP No. 1 to the complainant on 5.1.2015. Further, it is also not in dispute that the mobile set was having a warranty of one year from the date of its purchase and it was deposited at service centre of OP company within a period of 4/5 days during the warranty period as the problem of heating up has been specifically reported on the job cards (Annexures C-2 & C-3) by the complainant but at the same time OP’s Engineer have specifically reported in clause ‘Diagnose Details’ that “Device running an old O.S. customer refused to restore the device software without which further diagnosis not possible” and also tendered affidavit in this regard as Annexure R-2/X of one Bipin Tiwari, Engineer of OP company whereas complainant has not filed affidavit of any Mechanic or Engineer to prove his contention i.e. defects, if any, in the mobile set in question which was necessarily to be submitted as per Section 13(1) of C.P. Act.So, from the above discussed facts, we have come to the conclusion that it is nowhere proved that the iphone in question was having any manufacturing defect/inherent defect as alleged in the complaint since no any document or even report of any expert has been produced by the complainant to prove his contention. Further, the Engineer of OP company has specifically stated in para No. 2 of affidavit that “the iphone in question was required upgradation of the software to which the complainant herself has flatly refused which can be seen in Annexure R-1” and thus the software of the set in question was not updated by the OPs. As such, we have no hesitation in holding that OPs are not at fault as alleged rather complainant has miserably failed to prove her case and thus we have no option except to dismiss the present complaint. Accordingly, the present complaint is hereby dismissed with no order as to costs. A copy of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance.”4. This order was carried in Appeal by the Petitioner before the State Commission and the State Commission after re-appreciating and re-assessing the evidence and after giving due hearing to the parties who were present before it had dismissed the Appeal holding as under:“13. In view of the above submission and after careful perusal of the entire records including appreciation of the evidence which has been led by the parties, the basic and foremost question which arises for adjudication of this Commission is as to whether the complainant is legally entitled to recover the amount iphone? In order to adjudicate the basic question arisen between the parties, they have led their evidence. It is a matter of record that iphone was purchased by the complainant on 5.1.2015, it is the allegation of the complainant that since there was a problem in the iphone from the date of its purchase. On 8.1.2015 she has visited the O.P. No. 2 with request that iphone should be replaced. On comprehensively checking, it was found that there was no manufacturing defect and at the most, it requires a particular software up-gradation and the iphone was returned to the complainant. Again she has visited the O.P. No. 2 after one month it was thoroughly checked and no manufacturing defect was noticed. Again she was advised that particular software up-gradation is required, but she did not take any step for up-gradation of particular software. Finally she had visited an authorised service center for getting the said iphone repaired, however when the iphone was examined by the engineer of authorised service center it was found that it requires replacement. It was a period of gap of more than three years and by that time, the warranty period has also elapsed. Since the complainant did not take appropriate steps as per advise given by the O.P. No. 2 as no manufacturing defect was found and since the iphone simply requires up-gradation of particular software which the complainant was required to do it and moreover no particular efforts have been made on her behalf. Hence the learned District Forum had rightly dismissed the complaint being without of merits. Resultantly, the present appeal is also devoid of merits and stands dismissed.”5. This order is impugned before me on the same contention that there was a deficiencyin service as the service report dated 21.2.2015 by which the set was handed over to her by the service station clearly shows that it was still heating up and therefore, there is a deficiency in service on the part of the Opposite Party.6. It is a settled proposition of law that the jurisdiction of this Commission under Section 21(1)(b) of the Act is limited. This Commission has no jurisdiction to re-appreciate and re-assess the evidences and replace its opinion on the facts with that of the Forum below especially when there are concurrent findings of facts. It has been so held by the Hon’ble Supreme Court in Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=(2011) 11 SCC 269:“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.7. Again in Lourdes Society Snehanjali Girls Hostel and Ors. v. H & R Johnson (India) Ltd. and Others, III (2016) CPJ 27 (SC)=VI (2016) SLT 86=(2016) 8 Supreme Court Cases 286, the Hon’ble Supreme Court has reiterated the same principle and has held as under:“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”8. In T. Ramalingeswara Rao (Dead) Through L.Rs. and Ors. v. N. Madhava Rao and Ors., V (2019) SLT 692=decided on 5.4.2019 passed in Civil Appeal No. 3408 of 2019, the Hon’ble Supreme Court has held as under:“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High Court. It is only w
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hen such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”9. From the perusal of material on record, it is apparent that there is a concurrent finding of fact based on the report given by the engineers of the respondent as well that the problem of heating up of the phone was due to the failure of the Petitioner to upgrade the software of the phone. Learned Counsel has addressed the argument before this Commission stating that as per the warranty the upgrading of the software within the warranty period was the job of the service center. However, he has failed to bring to my notice any such clause of the warranty, rather no copy of the warranty card has been placed on record. I found no illegality or infirmity in the concurrent findings of the Forum below. The present Revision Petition has no merits and the same is dismissed in limine.Revision Petition dismissed.