Complainant Tarsem Lal has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to replace the defective mobile with new one or refund the amount of Rs.48,000/- alongwith damages Rs.20,000/- for mentally and physically harassment alongwith Rs.10,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he purchased brand New Apple I-Phone 6-S 16 GB from opposite party for a sum of Rs.48,000/- on 14.05.2016. On the very beginning the said phone stopped working and lastly on 10.01.2017 totally screen and system of phone closed for working. He asked the opposite party no.2 to repair the I-Phone, but he pretended on one pretext or the other. Lastly opposite party no.2 sent him to authorize dealer repair center. The authorize dealer called him many times at Jalandhar and particularly he visit Jalandhar Care Centre on simultaneous dated i.e. 17.01.2017 and 18.01.2017 but the authorize dealer has not repaired the same and return back in disorder position. He also went to the authorise repair Centre of the Jammu many times, but no any dealer attend him. Thus, there is deficiency in service on the part of the opposite parties. He has further pleaded that he got loan from HDFC Bank of Rs.49,350/- for the purchase of the I-Phone Mobile. He is also paying the bank installment with interest. The opposite party no.2 also insured the I-Phone due to coverage of loss and damage of the phone. He also paid the insuring installment of paying of Rs.2399/- per year. The opposite parties are harassing him mentally and financially from the time of mobile purchase. He is a businessmen and has to contact his customer and relatives. Due to non functioning and non availability of I phone he has suffered a lot of mental harassment. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed its written reply by taking the preliminary objections that the present complaint is malafide, devoid of merit and contradicts to the established principles of law; the complainant has not produced any document/service report of the iPhone being in question being inspected by any authorized service provider of the opposite party no.1 neither has the alleged defect been identified nor has any evidence towards the same been produced.; the complainant is also guilty of martially concealing and suppressing material facts and has approached this Forum with unclean hands with the sole intent of deceiving this Hon'ble Forum and it is settled position of law that here bald allegations are not sufficient to prove a case. It was further submitted that the complainant being an educated man knows the terms and conditions of the warranty. He has not produced any evidence of having visited the other opposite parties with regard to the alleged defect in his iPhone, nor has he produced any evidence of there being any alleged defect in his iPhone. In the absence of the same he cannot claim deficiency in service. The said deficiency in service will apply only when the complainant originally submits his iPhone for servicing and the OP1 or its service providers issue a Service report recording his allegations and then deliberately fail to rectify the same. In the present case there is no such evidence produced by the complainant. Hence this case is liable to be dismissed. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
- Notice issued to the opposite parties no.2 and 3 have not been received back. Case called several times but none had come present on behalf of opposite parties no.2 and 3. Therefore, they were proceeded against exparte vide order dated 14.3.2017.
- Counsel for the complainant tendered into evidence affidavit of complainant Ex.C-1, alongwith other documents Ex.C2 to Ex.C7 and closed the evidence.
6. Counsel for the opposite party no.1 tendered into evidence affidavit of Priyesh Poovanna Country Legal Counsel of opposite party no.1 Ex.OP-1/1, alongwith copy of terms and conditions Ex.OP-1/2 and closed the evidence.
7. We have carefully examined all the documents/evidence as available on the complaint records (as duly put forth by the complainant) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional absence/optional ex-parte proceedings by the titled opposite parties despite the proven service/publication of summons; of course, in the very back-drop of arguments as put forth by the learned counsel for the complainant.
8. We find that the complainant had on record purchased (affidavit Ex.C1) one Apple I Phone 6-S 16413 Mobile from the OP2 Vendor Invoice #36324 (Ex.C2) dated 14.05.2016 for Rs 48,000/- that however fell defective and mal-functioned within a few days of its purchase. Upon approach, the OP2 vendor did not repair/ replace the mobile and instead deferred the matter on one pretext or the other and finally nothing worked and the mobile device stayed infested with its original defects/sours and finally the titled opposite parties verbally and vocally expressed their helplessness/inability to provide any further assistance and thus prompted the present complaint.
9. We find that the complainant’s consumer rights have indeed been determined since both the OP2 vendor & the OP3 insurer did intentionally opt for ex-parte proceedings (before the forum) whereas the OP1 Co. did appear but refuse to shoulder the responsibility/liability of repair/replacement etc on technical but otherwise legally valid aspects.
10. No doubt, we shall be at a judicious discretionary liberty to draw an adverse ‘judicial inference’ by virtue of a plethora of superior courts judgments that the ex-parte opposite parties had no defense to prosecute and thus they instead preferred to go ‘ex-parte’. The above legal proposition holds true since more than a century old legal history of Indian law and its collateral jurisprudence. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/or to cast undue excessive ‘distresses’ to the delinquent parties.
11. In the light of the all above, we find the hue of actionable merit (under the Act) in the present complaint and thus ORDER the titled opposite parties (vendor & insurers) to replace (free of any cost) the mal-functioning defective Mobile Set (in question) with a new/fresh piece of Mobile with similar specifications or refund its cost price to the present complainant besides to pay him Rs.5,000/- as cost and compensation within 30 days of the receipt of these orders otherwise both the opposite parties shall be jointly and severally liable to refund the full purchase price of the Mobile Device Set (in question) with interest @ 9% PA from the date of purchase till actual payment.
12. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
December, 04 2017 Member
*MK*
