Decided on February 28,2020

Neena Aggarwal Appellant
Base 39 Mobile Communication Respondents


Deepa Sharma,J. - (1.) 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 16.08.2018 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 27.05.2016 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 05.01.2015 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 08.01.2015 where her phone was examined by the engineer and service report no.10268 dated 08.01.2015 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 18.02.2015, she visited Opposite Party No.2 and deposited her phone with the Opposite Party No.2 which was returned to her on 21.02.2015 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 (Annexure C-2 and 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." ;

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