1.                     The brief history of the case of the complainant is that he purchased a Micromax handset Model No.A-110 Q and IMEI No.911314103147024 & 453026 for Rs.11, 990/- from OP No.2 Vide Bill No.528 dt.21.10.2013 and then and there found that the Flip Cover of the handset was damaged for which the complainant refused to receive the set but getting assurance from OP.2 to replace the set with new one soon, the complainant accepted the set.  It is submitted that after 10 minutes of delivery of the set, the complainant noticed failure of touch pad, calls automatic disconnection, hearing problem etc. and immediately contacted OP.2 but the OP assured that the set will be alright after use of 24 hours but the fault could not be rectified after use of 2-3 days.   Then the complainant lodged complaint before OP.1 regarding defect in the set but no one responded.  It is also further submitted that the set was handed over to OP.3 but when the complainant received back the set, it was seen that the entire set has been damaged.  Thus alleging deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the Ops either to replace the set with a new one or to refund its cost with interest and to pay Rs.55, 000/- towards compensation and costs to the complainant.

2.                     The OP.1 filed counter denying the allegations of the complainant and contended that the complainant has impleaded OP.1 as manufacturer of the handset but the said OP is not manufacturing any handset and as such there is no allegation against the manufacturer.  It is also contended that the complainant has never intimated regarding defects in the handset to the manufacturer and hence there is no deficiency in service on the part of manufacturer.  It is also further contended that no document has been filed in support of the allegations of the complainant and in order to harass the Ops the complainant has filed this case for which adverse inference may be drawn against the complainant.  Thus denying any fault on its part, the OP.1 prayed to dismiss the case of the complainant.

3.                     The OP.2 also filed counter contending that he is neither the manufacturer nor the Authorized Service Centre (ASC) of the Company.  He only sales handsets to its customers and any defect during warranty is noticed, it is the duty of ASC to look into.  It is submitted that the customer has never approached the dealer for the guidelines towards the repair of the handset by ASC.  With these contentions the OP denying any fault on its part, prayed to dismiss the case of the complainant.  The OP.3 in spite of valid notice neither filed counter nor participated in the proceeding in any manner.

4.                     The complainant has filed certain documents along with affidavit in support of his case.  Heard and perused the documents available on record.

5.                     The complainant in this case purchased the alleged handset on 21.10.2013 from OP.2 who is the dealer of OP.1 and during purchase he found that the Flip Cover of the set was damaged and on the same day the complainant also noticed the defects in touch pad, hearing problem, call disconnection etc. of the set and the complainant was disagreed to accept the handset but due to assurances given by the dealer-OP.2, the complainant has accepted the set.  The above averment of the complainant is supported by affidavit.

6.                     The OP.2 has filed counter in this case stating that the complainant has never sought the advice of the dealer for repair of the set by ASC and the said contentions in the counter are neither supported by verification nor by affidavit.  However, it is a fact that the complainant has purchased the set on 21.10.13.  Besides the allegation of defects in handset during purchase, the complainant has also approached the ASC on 17.12.2013.  On that date the ASC has received the handset with Sensor problem and flip cover damage of the handset.  The copy of service details is on record.  From the above facts it became clear that on the date of purchase, the Flip cover as well as functioning of the handset was not satisfactory.

7.                     It is further noticed that after repair, the hand set was not functioning at all and hence the complainant on 19.12.2003 has forwarded an email complaint   to one Abhishek Chakrabarthy of Micromax Company with copy to all concerned.  On 12.1.2014 the complainant has also sent complaints through registered letter to OP.2 and 3 and the Ops have acknowledged the said letter.  After receipt of oral and written complaint from the complainant, the OP.2 dares to deny of non receipt of any complaint from the complainant which is unfortunate which sends a wrong note to the public.

8.                     Further the OP.1 in his counter stated that he is not the manufacturer of the handset.  In this context, the complainant says that in the Cover of the handset, the same address of OP.1 is appearing and hence he added the OP.1 as necessary party to the case.  If a particular address is supplied by the Company in the cover of the handset, obviously it becomes the permanent address of the company and that address can be used for all purpose.  Hence the OP.1 cannot deny or disown his liability in case of change of address of the Company.  If the OP.1 denying, he must disclose that who is he and why should be appeared in the cover of the handset.  In absence of all those facts, it can be concluded that the OP.1 can be sued and competent to reply in this case.  Further the OP.3 being the ASC remained silent and hence the allegations of the complainant against him remained unchallenged.

9.                     From the facts of this case it was ascertained that it is the dealer who played mischief at the time of sale of the product.  Had the OP.2 took back the handset on the date of sale when defects were noticed, the matter would have been closed then and there but in spite of requests of the complainant, the OP.2 did not do so.  Hence the OP.2 is squarely liable for the injuries caused to the complainant.

10.                   From the above facts and circumstances of the case, we noticed that the handset has got inherent manufacturing defect which could not be rectified by the ASC and the set remained unused with the complainant in spite of such a huge investment.  Hence the complainant is entitled for refund of its cost with due interest.  Further due to such inaction of the Ops, the complainant must have suffered some mental agony for which he is entitled for some compensation besides cost of this litigation.

11.                   Hence ordered that the complaint petition is allowed in part and the OP.1 is directed to refund Rs.11, 990/- towards cost of handset with interest @ 12% p.a. from 20.10.2013 in lieu of defective set and the OP.2 is directed to pay Rs.5000/- towards compensation and costs to the complainant within 30 days from the date of communication of this order.  If the OP.2 fails to comply with this order within time, the awarded sum shall also carry interest @ 12% p.a. from the date of this order.

(to dict.)