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Raj Kumar v/s Rana Communications & Another


Company & Directors' Information:- T P COMMUNICATIONS LIMITED [Active] CIN = U22211UP1995PLC019014

Company & Directors' Information:- A AND M COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC056539

Company & Directors' Information:- S P COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U45100WB1997PTC085372

Company & Directors' Information:- L-3 COMMUNICATIONS INDIA PRIVATE LIMITED [Active] CIN = U31909KA1999PTC025302

Company & Directors' Information:- P U COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC070141

Company & Directors' Information:- AMP COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74999MH2014PTC260254

Company & Directors' Information:- J. P. COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U51395UP1998PTC024022

Company & Directors' Information:- S R COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U72900DL2000PTC106970

Company & Directors' Information:- M G COMMUNICATIONS PRIVATE LTD [Converted to LLP] CIN = U74899DL1986PTC023568

Company & Directors' Information:- S N COMMUNICATIONS PRIVATE LIMITED [Converted to LLP] CIN = U72900DL2002PTC118175

Company & Directors' Information:- B E COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U64204WB2007PTC117516

Company & Directors' Information:- S A COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U64204MH2020PTC343477

Company & Directors' Information:- N AND M COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U92112MH1996PTC102814

Company & Directors' Information:- E 6 COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74899DL1986PTC024856

Company & Directors' Information:- B N B COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U30009DL1996PTC081267

Company & Directors' Information:- VERSUS COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74300WB2005PTC103033

Company & Directors' Information:- A P COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U94201DL2001PTC112095

Company & Directors' Information:- N V COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC135640

Company & Directors' Information:- N C COMMUNICATIONS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72500DL1996PTC075119

Company & Directors' Information:- S AND S COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U32102KA1991PTC012068

Company & Directors' Information:- U AND I COMMUNICATIONS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900PN2012PTC144206

Company & Directors' Information:- N & D COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74900TN2003PTC050717

Company & Directors' Information:- R C COMMUNICATIONS PVT LTD [Strike Off] CIN = U93090OR2006PTC008788

Company & Directors' Information:- G AND M COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U72900DL2006PTC146926

Company & Directors' Information:- D S COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U64202DL2005PTC142556

Company & Directors' Information:- RANA & CO. PRIVATE LIMITED [Strike Off] CIN = U51109DL1997PTC090894

Company & Directors' Information:- RAJ COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U72300DL1991PTC046139

Company & Directors' Information:- O. T. S. COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U93000MH2007PTC169128

Company & Directors' Information:- R K D COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U64200MH2011PTC217962

Company & Directors' Information:- N S S COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U72200TG2010PTC071384

Company & Directors' Information:- D T N COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U64203TN1982PTC009325

Company & Directors' Information:- B R I O COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U22300DL2012PTC242469

Company & Directors' Information:- K AND I COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74999DL2005PTC140331

Company & Directors' Information:- M M M COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U32204DL2007PTC164017

Company & Directors' Information:- D W W COMMUNICATIONS PRIVATE LIMTIED [Strike Off] CIN = U64200DL2007PTC169339

Company & Directors' Information:- K 2 COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74300KA2007PTC042842

Company & Directors' Information:- K. R. COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74999GJ2016PTC093336

Company & Directors' Information:- A. N. COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74130DL2020PTC372569

Company & Directors' Information:- V R COMMUNICATIONS INDIA PRIVATE LIMITED [Active] CIN = U74999PN2021PTC202406

Company & Directors' Information:- U F O COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U92100DL1997PTC087625

Company & Directors' Information:- K & K COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74300TN1995PTC030627

Company & Directors' Information:- Z AND N COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74300TZ1996PTC007333

    First Appeal No. 8 of 2018

    Decided On, 04 April 2019

    At, Himachal Pradesh State Consumer Disputes Redressal Commission Shimla

    By, THE HONOURABLE MR. JUSTICE P.S. RANA
    By, (RETD.)
    By, PRESIDENT
    By, THE HONOURABLE MR. VIJAY PAL KHACHI
    By, MEMBER & THE HONOURABLE MS. SUNITA SHARMA
    By, MEMBER

    For the Appellant: Gaurav Pathania, Shashi Bhushan, Advocates. For the Respondents: R1, None, R2, Arunjeet Singh, Dheeraj Kanwar, Advocates.



Judgment Text

1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 05.09.2017 passed by Learned District Forum in consumer complaint No.33/2017 titled Raj Kumar Versus Rana Communications & Anr. Brief facts of consumer complaint:

2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that on dated 04.04.2016 complainant purchased one mobile handset Lava Iris X5 in consideration amount of Rs.7500/- (Seven thousand five hundred) from opposite party No.1 who deals in sale of mobiles handset of opposite party No.2. It is pleaded that opposite party No.2 is manufacturer of mobile handset. It is pleaded that after using mobile handset for couple of months complainant noticed one or two colour spots on LCD display screen of mobile handset and on 15.06.2016 complainant took the said mobile handset to opposite party No. 1 to resolve the problem in mobile handset. It is pleaded that on examination of mobile handset opposite party No.1 told the complainant that complainant should use the said mobile handset without any hesitation as the presence of one or two colour spot on the LCD display screen of mobile handset is normal in nature and same would automatically disappear after passage of time. It is pleaded that thereafter complainant started using handset as per assurance given by opposite party No.1 and after five/six months the colour spot on LCD display screen of mobile handset started increasing.

It is pleaded that complainant noticed that one side of the LCD display screen of mobile handset was full of such colour spots. It is pleaded that thereafter complainant immediately on 20.12.2016 went to the shop of opposite party No.1 and told him about the said defect in LCD display screen of mobile handset but opposite party No.1 again gave assurance to complainant that with the passage of time colour spots would disappear from the screen of mobile handset. It is pleaded that finally on 28.02.2017 complainant again went to the shop of opposite party No.1 and opposite party No.1 after thorough examination of mobile handset admitted that LCD display screen of mobile handset was defective and require replacement and rectification.

3. It is pleaded that thereafter mobile handset was given to opposite party No. 1 for repair and opposite party No.1 told the complainant to come after fifteen days. It is pleaded that opposite party No. 1 also told the complainant that mobile handset would be sent for repair in the repair centre for replacement of LCD display screen. It is further pleaded that opposite party No.1 also issued hand written receipt on dated 10.03.2017 to complainant. It is pleaded that thereafter opposite party No.1 told the complainant to come on 25.03.2017 to collect the handset from the shop of opposite party No.1. It is pleaded that on dated 26.03.2017 complainant as per direction of opposite party No.1 again inquired about his mobile handset. It is further pleaded that opposite party No.1 handed over the mobile handset to complainant and told the complainant that company repair centre has refused to remove the defect in said handset as mobile handset was beyond warranty repair condition. It is pleaded that complainant has suffered mental and physical harassment and humiliation and has also sustained agony. It is pleaded that opposite party No.1 is authorised dealer of opposite party No.2 and opposite party No.2 is manufacturer of mobile handset and both are jointly and severally liable for selling defective mobile handset to complainant. Complainant sought relief of replacement of mobile handset with brand new one of same model. In addition complainant sought relief of payment of Rs.7500/-(Seven thousand five hundred) to complainant as actual costs of mobile handset alongwith interest @ 12% per annum from the date of purchase till its realization. In addition complainant sought relief of payment of Rs.10000/-(Ten thousand) for mental agony and harassment. In addition complainant sought relief of payment of Rs.10000/-(Ten thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.

4. Opposite party No.1 did not appear before learned District Forum despite service. Learned District Forum proceeded ex-parte against opposite party No.1 on dated 28.04.2017. Per contra version filed on behalf of opposite party No.2 pleaded therein that present consumer complaint is not maintainable and complainant has no locus standi to file and maintain the present consumer complaint. It is pleaded that complainant has got no cause of action against opposite party No.2. It is pleaded that opposite party No.2 is renowned company of India and is engaged in business of manufacturing mobiles and its sales. It is pleaded that engineers of company checked mobile handset in the presence of complainant and found that mobile handset was physically damaged. It is pleaded that case of complainant falls within exceptional clause of warranty issued by manufacturing company. It is pleaded that there was not manufacturing defect in the product and opposite party No.2 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.

5. Learned District Forum partly allowed the complaint and directed opposite parties jointly and severally to repair the mobile handset of complainant free of costs within a period of thirty days w.e.f. 05.09.2017. In addition learned District Forum ordered that opposite parties would pay compensation to the tune of Rs.2000/-(Two thousand) for harassment. In addition learned District Forum ordered that opposite parties would pay litigation costs to complainant to the tune of Rs.1000/-(One thousand). Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.

6. We have heard learned Advocates appearing on behalf of appellant and respondent No.2 and we have also perused entire record carefully.

7. Following points arise for determination in present appeal.

1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether in manufacturing defect of product report of expert is essential?

2. Final order.

Findings upon point No.1 with reasons:

8. Complainant filed affidavit Ext.CW1 in evidence. There is recital in affidavit that on dated 04.04.2016 complainant purchased one mobile handset Lava in consideration amount of Rs.7500/-(Seven thousand five hundred) from opposite party No.1. There is recital in affidavit that after using the mobile handset for couple of months complainant noticed that one or two colour spots appeared on the LCD display screen of mobile set. There is recital in affidavit that on dated 15.06.2016 complainant took said mobile handset to opposite party No.1 to resolve the problem but opposite party No.1 told the complainant that complainant should use the mobile set without any hesitation and also told that spot on the LCD display screen of handset would automatically diminished after passage of time. There is recital in affidavit that thereafter complainant used the mobile phone for a period of five/six months but colour spot upon LCD display screen of mobile increased. There is recital in affidavit that complainant again went to shop of opposite party No.1 on dated 20.12.2016 but opposite party No.1 again gave assurance to complainant that with the passage of time colour spots would disappear from the screen of mobile handset. There is recital in affidavit that finally on 28.02.2017 complainant again visited to the shop of opposite party No.1 and opposite party No.1 after thorough examination of mobile handset admitted that LCD display screen of mobile handset was defective and require replacement and rectification. There is recital in affidavit that thereafter mobile handset was given to opposite party No.1 for repair and opposite party No.1 told the complainant to come after fifteen days.

9. There is recital in affidavit that opposite party No.1 also told the complainant that mobile handset would be sent for repair in the repair centre of opposite party No.2 for replacement of LCD display screen. There is recital in affidavit that on dated 26.03.2017 complainant went in the shop of opposite party No.1 to collect mobile handset but opposite party No.1 told that repair centre of manufacturing company has refused to repair the mobile phone on the ground that repair is beyond warranty terms and conditions issued by manufacturing company. There is recital in affidavit that opposite parties have committed deficiency in service.

10. Opposite party No.1 did not adduce any evidence by way of affidavits. Opposite party No.2 filed affidavit Ext.OPW2-1 of Shri Amardeep Singh on behalf of manufacturing company. There is recital in affidavit that complainant has no locus standi to file consumer complaint and complainant has no cause of action against opposite party No.2. There is recital in affidavit that manufacturing company is renowned company of India. There is recital in affidavit that problem occurred in mobile handset due to act of complainant himself as mobile phone was not properly handled by the complainant. There is recital in affidavit that damage in mobile handset due to improper handling of mobile handset falls within exception clause of warranty card issued by manufacturing company.

11. Submission of learned Advocate appearing on behalf of complainant that there was manufacturing defect in mobile handset and on this ground appeal filed by complainant be allowed is decided accordingly. It is well settled law that manufacturing defect should be proved by way of affidavit of expert. Complainant did not file any affidavit of expert on record in order to prove that there was manufacturing defect in mobile handset. Sole affidavit of complainant is not sufficient to hold that there was manufacturing defect in the mobile handset because complainant is not expert. No reasons assigned by complainant as to why complainant did not file any affidavit of expert in order to prove that there was manufacturing defect in mobile handset in question. See II (2017) CPJ 462 (NC)=2017 (1) CPR 643 NC Bhagwan Singh Shekhawat v. M/s. R.K. Photostate & Communication & Ors., See I (2017) CPJ 333 (NC)=2017 (3) CPR 35 NC Mahender Kumar v. Hero Honda Motors Ltd. & Anr.

12. Submission of learned Advocate appearing on behalf of complainant that non-repair of mobile phone for almost a year ipso facto prove manufacturing defect in mobile phone is decided accordingly. State Commission is of the opinion that facts asserted by a party should be proved by a party in accordance with law. It is well settled law that proceeding under Consumer Protection Act 1986 are quasi judicial proceedings and it is also well settled law that controversial facts should be proved by a party strictly under section 13(4) of Consumer Protection Act 1986. Automatic presumption of manufacturing defect in the product without report of expert is not permissible under Consumer Protection Act 1986 because proceedings under Consumer Protection Act 1986 are quasi judicial proceedings and controversial facts under Consumer Protection Act 1986 should be proved as per provision of section 13(4) of Consumer Protection Act 1986. Sole affidavit of complainant who is interested person in the present matter and who is not manufacturing expert is not sufficient to hold that there was manufacturing defect in the product.

13. Submission of the learned Advocate appearing on behalf of complainant that complainant is legally entitled for refund of Rs.7500/-(Seven thousand five hundred) alongwith interest @ 12% per annum from the date of purchase of handset till realization is decided accordingly. There is no evidence on record in order to prove that guarantee card was issued by seller to complainant. As per law product is replaceable when guarantee card is issued by manufacturing company but if warranty card is issued then only defective parts of product is replaceable if defect occurred during warranty period. State Commission has also perused retail invoice bill annexure-C1 carefully. As per retail invoice bill only warranty card was given and guarantee card was not given to complainant qua mobile set in question.

14. Submission of learned Advocate appearing on behalf of complainant that even after receipt of notice from learned District Forum opposite parties did not repair mobile phone and above stated acts of opposite parties amount to prove that there was manufacturing defect in mobile phone in dispute is decided accordingly. Opposite party No.2 has refuted the facts mentioned in complaint before learned District Forum and learned District Forum has disposed of consumer complaint on dated 05.09.2017. Thereafter F.A. No.08/2018 filed by complainant himself before State Commission. It is well settled law that appeal is continuation of matter. In view of the fact that matter remain under dispute before learned District Forum and State Commission it is held that simply non-repair of mobile ph

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one during lis pendens of matter does not prove ipso facto that there was manufacturing defect in the product in question. 15. Submission of learned Advocate appearing on behalf of opposite party No.2 that order of learned District Forum is in accordance with law and in accordance with proved facts and does not warrant interference by State Commission is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order passed by learned District Forum. It is held that order of learned District Forum is strictly in accordance with law and in accordance with proved facts. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order 16. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum is affirmed. Retail invoice bill annexure-C1 and Lava Warranty Certificate annexure-OP2-1 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of. Appeal disposed of.
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