' MEHMOOD MAQBOOL BAJWA, J.--- Feeling dissatisfied with the judgment dated 28-4-2009, recorded by learned District Consumer Court, Sargodha, present appellant arrayed as respondent No,2 in the complaint filed by the respondent calls in question the vires of said judgment by way of present appeal.
2. Necessary facts resulting in preference of present appeal are that present respondent filed a complaint before the learned District Consumer Court, Sargodha, with the allegation that on 19-5- 2008 he purchased a Dawlance Refrigerator Model 9188 WPM from Al-Badar Electronics, Amin Bazar, Sargodha, for a consideration of Rs,25400. Just after 3, 4 days of purchase of refrigerator, electric shocks were observed from the refrigerator as and when same was touched, which matter was reported to Al-Badar Electronics. However. The said dealer did not pay any heed to the request and demand of respondent upon which after issuance notice to Al-Badar Electronics claim was filed by the respondent before District Consumer Court, Sargodha arraying Al-Badar Electronics as respondent. However, on 17-3-2009 present appellant was also arrayed as respondent on the application of present respondent. After recording the evidence, learned trial Court vide judgment impugned issued direction to the appellant to provide new refrigerator to the respondent or in alternate to pay Rs,25,400 to the respondent along with compensation to the tune of Rs,5,000.
3. Perusal of order dated 26-4-2010, recorded by this Court suggests that direction was issued to the appellant to issue letter to respondent offering the repair of refrigerator at the workshop of appellant at Sargodha. It was further maintained that in case the respondent is dissatisfied with the repair work, the appeal shall be heard on merits. Refereace is also made to the order dated 25- 5-2010 made by this Court, according to which the appellant placed on record the documents showing that the respondent has refused to provide the refrigerator for repair and as the respondent was not in attendance, therefore, it was held that absence of the respondent indicates veracity of the appellant's contention and ultimately due to absence of respondent ex parte proceedings were initiated against him.
4. Record has been perused with the assistance of learned counsel for the appellant, who has assailed the vires of impugned judgment on multiple legal as well as factual premises. Referring to the provision of section 28(4) of The Punjab Consumer Protection Act, 2005 (Act II of 2005), learned counsel for the appellant maintained that the respondent being consumer was required to file his claim within 30 days of the arising of cause of action. Referring to para 2 of the complaint, learned counsel for the appellant maintained that grievance of the respondent regarding defective and improper working of refrigerator came to the knowledge of respondent after 3, 4 days of the purchase of refrigerator and as such the claim should have been lodged within 30 days from the said day but the complaint was made on 19-1-2009, liable to be rejected being barred by time Further suggested that no application, whatsoever, was made for condonation of delay as provided in proviso of section 28(4) of the said Act. Referring to subsection (3) of section 28 of the Punjab Consumer Protection Act, 2005, it was maintained that the claim of the respondent was not entertainable by the learned Consumer Court against the present appellant in view of the omission to serve the appellant with notice as required under subsection (1) of the said section. Submitting the arguments on factual premises, learned counsel for the appellant maintained that the respondent failed to disclose any manufacturing defect in the refrigerator which was in perfect condition as stand established in view of evidence produced by the appellant. Maintained that the refrigerator was not working properly in view of defective wiring of the respondent which was not properly earthed. Referring to the provision of section 30(c) of the Act 2005, learned counsel for the appellant went on saying that since the moot point between the adversaries was a technical matter and as such learned trial Court should have decided the fact in issue by inviting expert evidence.
5. According to section 28(1) of the Act, a consumer is required to serve the manufacturer or provider of services with a notice regarding defectiveness of product or faulty of service.
Subsection (3) of the said section suggests that no claim shall be entertained by the Consumer Court unless the consumer or authority has given notice under subsection (1) to the manufacturer or provider as the case may be. Perusal of record of learned trial Court though suggests that notice was issued under the said provision of law to Al-Badar Electronics Amin Bazar, Sargodha, (dealer) but nevertheless there is nothing on record to suggest issuance of notice to the present appellant and as such the claim against the appellant was not entertainable by the learned trial Court. It is to be noted that initially the appellant was not arrayed as respondent in the complaint, who was arrayed on the application of respondent vide order dated 17-3-2009. It is further to be noticed that according to section 28(4) of the Punjab Consumer Protection Act, 2005, the claim of respondent being consumer should have been filed within thirty days of the arising of cause of action, which according to contents of the complaint arose just after 3, 4 days of purchase of refrigerator on 19- 5-2008 but the claim was lodged on 19-1-2009 against Al-Badar Electronics, Amin Bazar Sargodha while against preset appellant it was agitated on 17-3-2009 when an application was made for impleading the appellant as respondent No,2. Admittedly the 'initial claim on 19-1-2009 was barred by time. No doubt in view of the proviso of section 28(4) of the Act, Consumer Court may allow a claim to file after thirty days, if it is satisfied that there was sufficient cause for not filing the complaint within specified period but no such application was made for condontion of delay and as such the complaint before the learned trial Court was barred by time.
' Keeping in view the allegation contained in the complaint, it becomes crystal that the grievance of the respondent regarding improper functioning of the refrigerator was a technical matter as according to the respondent as and when the refrigerator was touched, the electric shock was being conceived. With this background, learned trial Court B instead of deciding the matter on oral evidence should have invited expert within the meaning of section 30(c) of the Act, 2005.
Statement of respondent as well as two other witnesses deposing that the refrigerator gives electric shock as and when touched should have not been believed, relied and acted upon keeping in view the stance of appellant according to which the wiring of the electricity in the house of respondent was defective. Though objection raised by the appellant was repelled by the learned trial Court but since the matter was of technical nature, therefore, mere deposition at the instance of respondent and his witnesses controverted by the appellant was not sufficient to answer the moot point in affirmative. It is further to be noted that there was a specific defence agitated at the instance of appellant that the refrigerator was not used by the respondent according to the terms and conditions of warranty particularly warranty No,
1. In view of the matter, the controversy could not have been resolved without evidence of the expert. The opinion formulated by the learned trial Court as such is not justified in order to grant the claim of respondent.
6. Pursuant to above discussion, the impugned judgment is legally not sustainable and as such while setting aside the same, appeal preferred by the appellant is accepted, resulting in dismissal of the complaint filed by the present respondent without any order as to costs. The decretal amount, if any, deposited by the appellant in compliance of order of this Court dated 1-6-2009 shall be refunded to the appellant by the learned trial Court.