1. Case of the complainant is that he is practicing lawyer at Gujranwala for the last 6 years. On 15- 09-08 he purchased a mobile telephone set make Nokia 6300 from the respondent's shop after making payment of Rs.14100/-. On the very next day the said mobile set become out of order.
Immediately a complaint was lodged with the respondent who received Rs.400/- to set right the fault. Even than the mobile phone was not in order. Respondent inspite of repeated reminders refused to replace the mobile phone or return the price thereof. Complainant asserted that respondent sold a defective product. He demanded return of Rs.14100/-, price of mobile phone set and Rs.1,00,000/- for mental torture.
2. Respondent appeared and stated that originally the warranty was issued by Cell Zone Company who has not been impleaded as necessary party. The mobile set in question was sold to the complainant sealed packed by the company which at the time of sale was checked by the complainant who was also informed that in case of any fault mentioned in the warranty card the mobile phone set in no case should be examined and repaired other then the competent authority.
Dismissal of claim was demanded by the respondent.
3. In order to prove his case complainant produced PW1 Malik Shahid Mehmood as his special attorney, Qaiser Shahzad his real brother as PW2 and Rana Ashfaq as PW3.
On the other hand respondent himself appeared as RW1 and produced Sajjad Ahmed as PW2.
5. The point in issue in this case is that what was the defect in the mobile set purchased by the complainant and whether the defect comes within the ambit of warranty. It is also to be decided as to whether the mobile set in question was got repaired by the complainant from an unauthorized agent, if so, whether it declared the warranty null and void. According to PW1 respondent has provided one year warranty during which period respondent was responsible for repair and replacement of the mobile set in case of fault of any kind. The mobile set did not become operational due to non charging of its battery. The respondent received Rs. 400/- repair charges and fault was set right. Same type of statement was got recorded by PW2. On the other hand respondent's contention is that the charging pin was found broken when complainant produced the mobile set at the shop. The said pin was damaged due to mishandling of the complainant with the mobile set. The warranty policy does not accept any breakage due to mishandling. The charging pin was broken while inserting charger nob inside. The broken pin was replaced and Rs. 400/- was charged. This contention of the respondent has not been rebutted by the complainant. It is an admitted fact that a new mobile set in a sealed pack by company was handed over to the complainant. The mobile set was purchased on 15-07-09. It was handed over, on 17-07-09 according to complaint, to respondent for repair and on 19-07-09 it was returned to complainant after repair.
PW1 in his examination in chief stated that the mobile set was not checked by the complainant Nasir Shahzad at the time of purchase. In his cross examination he admitted that at the time of purchase of mobile set he was not present at the shop of respondent with the complainant. The repair of mobile set in question by the complainant from an unauthorized mechanic is also admitted by the complainant.
PW2 in the cross examination further clarified that the mobile set in question got repaired from a mechanic shop situated at Amir Center Gujranwala. Complainant in his complaint neither specifically pointed out the fault in the mobile set in question nor explained during the evidence what he simply said is that mobile set did not function. None of the witness of the complainant any where denied contention of the respondent about breakage of charging pin. During pendency of case both the parties were confronted with each other for reconciliation. It was stated on behalf of the complainant that mobile set in question was not being charged and respondent has replaced the charging pin and charged Rs. 400/-. After some period LCD become defective which was got repaired from a mechanic shop. This conversation between the parties was reduced into writing by Court on 08-12 09 much before recording of evidence. The complainant and his witnesses has avoided to bring this fact in a clear manner during their deposition. Much weight can be attached to the extempore conversation and abrupt feelings of the parties expressed before the Court directly without interference of their learned counsels which depicts true picture according to which charging pin was broken which was replaced. The mobile set remained operational for some period and later become out of order. The defect in LCD was got removed from the mechanic. The complainant should have produced in the Court the mechanic who has repaired the mobile phone set in order to prove that how LCD become non functional? Either due to manufacturing fault or due to misuse by the owner. As per warranty policy if the mobile set is opened and repaired other then Cell Zone service center the warranty become void. The said mobile set as per complainant's own evidence is working properly now a days after repair work done by a mechanic. The legal notice was dispatched as per record on 14-10-08 but complaint was filed on 18-11-08 after 34 days whereas the limitation for filing complaint is 30 days from the arising of cause of action and not from the dispatch legal notice. Even than the case was filed on 34th day of the dispatch of legal notice which is barred by time.
6. The upshot of the discussion is that complainant could not establish that the fault in the mobile set detected for the first time was not a mechanical damage by mishandling and was an inherent defect. Complainant also failed to prove that what was the subsequence defect and that too was due to inherent fault in the machinery of the mobile set. Complainant's evidence is focused through out that from the very beginning mobile set failed to function whereas in the Court on 08- 12-09 during the heat of discussion the truth comes out of lips that after repair of the charging pin mobile set remained operational and thereafter LCD become out of order. None of the complainant's witness has alleged during evidence that LCD become out of order. I am failed to understand either the witnesses were ignorant of this fact or it was purposely concealed. Repair of mobile set by unauthorized dealer is also admitted which made the warranty void. In these circumstances complainant is not found entitled for the relief claimed, therefore, the complaint is dismissed. However, with no order as to cost. File be consigned to record room after its due completion.