State Consumer Disputes Redressal Commission
Reliance Retail Ltd. & Ors. vs Sh. Pardeep Kumar. on 8 April, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 195/2018
Date of Presentation: 26.05.2018
Order Reserved on : 05.12.2018
Date of Order : 08.04.2019
......
1. Reliance Retail Limited through its Prop. Ground Floor
Building Hotel The Grand Raj Mohal Rihalpura Post
Office Tehsil and District Kangra H.P.
...... Appellant/Opposite Party No.1
2. The Manager Reliance Retail Ltd. Village Birta Post Office
Ghurkari Tehsil and District Kangra H.P.
...... Appellant/Opposite Party No.2
3. Reliance Corporate Park Ghansoli Navi Mumbai Thane-
4000701 (Mah.)
...... Appellant/Opposite Party No.3
Versus
Shri Pardeep Kumar Son of Late Shri Roshan Lal Resident of
Village Passu Post Office Pantehar Tehsil Dharamshala District
Kangra H.P.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant s : Mr. Raj Negi Advocate.
For Respondent : Mr. Rajeshwar Sapeya Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) 19.04.2018 passed by Learned District Forum in consumer complaint No.152/2017 titled Pardeep Kumar Versus Reliance Retail Store & Ors.
Brief facts of Matter:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant purchased smart mobile phone handset LYF (LS-5018) on dated 20.03.2017 in consideration amount of Rs.6648/- (Six thousand Six hundred forty eight) from opposite party No.1 at Kangra H.P. It is pleaded that warranty was given by the opposite parties. It is further pleaded that on dated 02.08.2017 speaker of mobile phone handset did not work properly and complainant deposited mobile phone handset for repair on dated 03.08.2017 in the service centre of opposite party No.2. It is further pleaded that on the same day in the evening opposite party No.2 returned the mobile phone handset to complainant with remarks that defect was due to liquid logged in the mobile phone handset and repair charges claimed by opposite parties. It is further pleaded that service centre of opposite party No.2 informed complainant that mobile phone handset defect would be repaired if complainant would pay costs of repair to the tune of Rs.6795/- (Six thousand seven hundred ninety five). It is further pleaded that opposite parties committed deficiency in 2 Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) service. Complainant sought relief of replacement of mobile phone and in alternative complainant sought relief of payment of Rs.6648/- (Six thousand six hundred forty eight) alongwith interest @18% per annum till actual payment. In addition complainant sought relief of payment of Rs.10000/-
(Ten thousand) for mental harassment. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that product in question was liquid logged and liquid logged problem does not fall within the warranty clause and falls within the exclusion clause of warranty card. It is pleaded that complainant insisted for free of cost repair or replacement of mobile phone with new one. It is further pleaded that opposite parties did not commit any deficiency in service. It is further pleaded that there was no manufacturing defect in the product in question. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
5. Learned District Forum partly allowed the complaint and ordered opposite parties to jointly and severally replace mobile phone handset of complainant or to refund its price to the complainant within thirty days from the date of 3 Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) receipt of copy of order. Learned District Forum further ordered that in addition opposite parties would pay compensation to complainant to the tune of Rs.2000/- (Two thousand) for harassment. In addition learned District Forum ordered that opposite parties would pay litigation costs to the tune of Rs.2000/- (Two thousand) to the complainant.
6. Feeling aggrieved against order passed by learned District Forum opposite parties filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by Reliance Retail Ltd. & Ors/opposite parties is liable to be accepted as mentioned in memorandum of grounds of appeal and whether opinion of expert is essential in manufacturing defect of product?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit Ex.CW-1 in evidence.
There is recital in affidavit that deponent purchased smart mobile phone handset LYF (LS-5018) on dated 20.03.2017 in 4 Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) consideration amount of Rs.6648/- (Six thousand Six hundred forty eight) from opposite party No.1 at Kangra H.P. There is further recital in affidavit that warranty was given by the opposite parties. There is further recital in affidavit that on dated 02.08.2017 speaker of mobile phone handset did not work properly and thereafter deponent deposited the mobile phone handset for repair on dated 03.08.2017 in the service centre of opposite party No.2. There is further recital in affidavit that on the same day in the evening opposite party No.2 returned the mobile phone handset to complainant with remarks that defect occurred due to liquid logged in the mobile phone handset and free repair not approved. There is further recital in affidavit that opposite parties did not repair the mobile phone handset of deponent free of charges and demanded repair charges to the tune of Rs.6795/- (Six thousand seven hundred ninety five). State Commission has carefully perused all the annexures filed by complainant.
10. Opposite parties filed affidavit of Manoj Kumar Ex.OPSW1to3-1 in evidence. There is recital in the affidavit that deponent is working as Service Engineer with opposite party No.2 at its Service Center situated at Reliance Retail Limited Mohal and Mauza Birta Tehsil and District Kangra H.P. There is further recital in affidavit that complainant visited service center of opposite party No.2 on dated 5 Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) 03.08.2017 after five months of purchase of mobile phone handset. There is further recital in affidavit that after depositing the mobile phone handset opposite party No.2 issued job sheet bearing No. 8010597475. There is further recital in affidavit that deponent personally inspected the mobile phone handset and found that main Printed Circuit Board (PCB) of mobile phone handset was liquid logged. There is further recital in affidavit that mobile phone handset was opened for inspection in the presence of complainant and immediately after inspection of mobile phone hands it was found that mobile phone handset was liquid logged. There is further recital in affidavit that deponent demonstrated the liquid logged main Printed Circuit Board (PCB) of mobile phone handset to the complainant. There is further recital in affidavit that complainant was informed that liquid logged matter falls within exclusion clause of warranty card. There is further recital in affidavit that complainant was informed that he would have to bear the repair charges. There is further recital in affidavit that complainant refused to pay the repair charges and insisted for free of charges repair of mobile phone handset. There is further recital in affidavit that opposite parties did not commit any deficiency in service.
11. Opposite parties also filed affidavit of Desh Raj Dogra Authorized Representative of Reliance Retail Ltd. 6
Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) Ex.OPSW1to3-2 in evidence. There is recital in the affidavit that complainant visited the service center of opposite party No.2 on dated 03.08.2017 after five months of purchase of mobile phone handset in question. There is further recital in affidavit that service engineer personally inspected the mobile phone handset and found that main Printed Circuit Board (PCB) of mobile phone handset was liquid logged. There is further recital in affidavit that mobile phone handset was opened for inspection in the presence of the complainant and service engineer demonstrated the liquid logged main Printed Circuit Board (PCB) of mobile phone handset to the complainant. There is further recital in affidavit that problem in the product in question falls within exclusion clause of warranty card. There is further recital in affidavit that complainant insisted for free of charges repair of mobile phone handset. State Commission has carefully perused all the annexures filed by opposite parties.
12. Submission of learned Advocate appearing on behalf of appellants/opposite parties that defect was due to liquid logged and liquid logged matter does not fall within the terms and conditions of warranty card issued by opposite parties and on this ground appeal be allowed is decided accordingly. State Commission has carefully perused terms and conditions of warranty card placed on record. As per 7 Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) terms and conditions of warranty card the defect occurred in the mobile phone handset due to water logged problem is outside the purview of free repair during warranty period. Manoj Kumar Service Engineer has specifically mentioned in his affidavit that product in question was suffering from liquid logged problem. Shri Manoj Kumar Service Engineer has personally inspected mobile phone handset in question. Testimony of Manoj Kumar Service Engineer is corroborated by Desh Raj in his affidavit. Affidavits filed by Manoj Kumar Service Engineer and Desh Raj are trustworthy, reliable and inspires confidence of State Commission. Complainant did not file any counter Service Engineer report in order to prove that product in question was not suffering from liquid logged problem.
13. As per law manufacturer of product is under legal obligation to repair product free of charges during warranty period which falls within terms and conditions of the warranty card. As per law the product which falls within the exclusion clause of warranty card could be repaired only after payment of usual charges. As per law (1) Guarantee (2) Warranty are entirely two different concepts. As per law in the guarantee original defective product is replaceable and in the warranty only defective parts are repaired by manufacturer or service centre of the manufacturer. In the present case no 8 Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) guarantee card was issued to the complainant by opposite parties and only warranty card was issued.
14. Submission of learned Advocate appearing on behalf of complainant that there was manufacturing defect in the product in question and opposite parties are under legal obligation to replace the defective mobile phone handset or to refund the entire consideration amount paid by complainant and on this ground appeal be dismissed is decided accordingly. State Commission is of the opinion that complainant has asserted the fact that there was manufacturing defect in the mobile phone handset in question. It is well settled law that onus to prove the fact lies upon a person who asserts particular fact before the learned District Forum or State Commission. Complainant did not file expert opinion report in order to prove that there was manufacturing defect in the product in question. It is well settled law that manufacturing defect in the product could be proved only by way of opinion of expert. See 2016 (4) CPR 412 NC M/s. Tractor Dealer Farm Equipment and Machinery Company Versus Ghanshyam Maurya & Ors. See 2017 (1) CPR 643 NC Bhagwan Singh Shekhawat Versus M/s. R.K. Photostat & Communications & Ors. See 2017 (3) CPR 35 NC Mahender Kumar Versus Hero Honda Motors Ltd. & Anr. State Commission is of the opinion that sole affidavit of 9 Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) complainant is not sufficient to hold that there was manufacturing defect in the mobile phone handset because complainant is not expert in manufacturing field of mobile. State Commission is of the opinion that complainant was under legal obligation to adduce corroborative evidence of manufacturing expert in order to prove manufacturing defect. Plea of complainant that there was manufacturing defect in the product in question is defeated on the concept of ipse- dixit (An Assertion made without proof). Point No.1 is decided accordingly.
Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum that opposite parties would jointly and severally replace the handset or in alternative refund its price to the complainant within thirty days from the date of receipt of copy of order is set aside. Order of learned District Forum that opposite parties would pay compensation to the complainant for mental harassment to the tune of Rs.2000/- (Two thousand) is also set aside. Order of learned District Forum that opposite parties would pay litigation costs to the tune of Rs.2000/- (Two thousand) to the complainant is also set aside.
16. It is further ordered that opposite parties shall jointly and severally repair the mobile phone handset of 10 Reliance Retail Ltd. & Ors. Versus Pardeep Kumar (F.A. No.195/2018) complainant in question on usual charges as approved by manufacturing company after receiving mobile phone handset in question from complainant within thirty days after receipt of certified copy 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.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 08.04.2019.
*GUPTA* 11