Complainant Rishab Aggarwal through his authority holder Preeti Aggarwal  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 handset with a new mobile handset or to refund the  full price of the mobile handset alongwith interest. Opposite parties be further directed to pay Rs.20,000/- as compensation on account of mental agony, harassment, torture and emotional distress and any other relief this Hon'ble Commission deems fit be granted to him against the opposite parties.

2.        The case of the complainant in brief is that he purchased a mobile phone make Sansung J-2 which is defective one. He approached the opposite party no.1 who told that display of the phone was defective and required to be replaced. Accordingly the same was replaced on 8.1.2016 vide invoice no.425268 0306 and an amount of Rs.3043/- was charged by him but the mobile phone continued to give trouble.  Thereafter he approached the opposite party no.1 number of times, but the opposite party no.1 kept on lingering the matter.  He has next pleaded that after some time the opposite party no.1 told that the jack of the phone is to be replaced and the same was also replaced on 14.7.2018 vide invoice no.4264649953 amounting to Rs.2901/- but the mobile phone again started giving troubles.  Actually, the persons/mechanics deputed by the opposite party no.1 are not  qualified and the above mentioned defects have accrued in the mobile phone on account of mishandling on their part. He further observed that serial no. and model no. of the mobile phone was different which implies that mobile phone different from the original was handed over to him and this amounts to unfair trade practice on the part of the opposite parties.  He has further pleaded that he approached the opposite party no.1 about 8-10 times but of no use and ultimately on 8.11.2018 opposite party refused to take any action into the matter. He lodged complaint to the opposite party no.2 on 10.11.2018 and also made number of phone calls  and asked to handover the phone call to the opposite party no.1 and the same will be replaced free of costs. Accordingly, he handover over the mobile phone to the opposite party no.1 immediately, but till today no action has been taken by the opposite party no.1. A legal notice was also issued to the opposite party no.1 & 2 inspite of that the opposite party refused to accept his genuine requests. Thus, there is deficiency in service on the part of the opposite parties.

 3.          Notice of the complaint was issued to the opposite party no.1 through R.C. but R.C. has not been received back. Case called several times but none had appeared on behalf of opposite party no.1. Hence, opposite party no.1 was ordered to be proceeded against exparte vide order dated 4.12.2020.

4.     Opposite party no.2 appeared through its counsel and filed its written reply by taking the preliminary objections that there is no question of any deficiency in service on the part of the opposite party arises. On merits, it was submitted that handset was submitted with opposite party no.1 on 14.07.2018 for the first time since its date of purchase, which is intentionally not disclosed by the complainant, neither the invoice showing the purchase of mobile in question has been placed on record. Rather on 14.07.2018 when the handset was submitted with opposite party no.1 its  display was found damaged and the display of the handset was changed, as the product was out of warranty due to physical damage and also warranty period of one year has already expired, it was done on chargeable basis. It was denied that till today no action has been taken by opposite party no.1. Rather complainant approached opposite party no.1 on 27.11.2018 and reported the problem of handset dead. Opposite party no.1 checked the handset and found that display was not working as it has been damaged. The warranty period of handset has already expired thus repair was to be done on chargeable basis only. The estimate of repair Rs.4190/- was given to complainant. The complainant approved the estimate accordingly handset was duly repaired and complainant was called upon to collect the handset. But complainant did not turn up to take back the handset and neither paid the repair charges to opposite party no.1.  It was submitted that the legal notice issued by complainant through advocate Rahul Puri has been duly replied by the opposite party vide reply dated 28.12.2018 wherein complainant was called upon to collect his duly repaired handset, but despite receiving the said reply to the legal notice complainant did not take back his handset from opposite party no.1. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

5.      Alongwith the complaint, Ms.Preeti Aggarwal has filed her own affidavit and other documents Ex.C-1 to Ex.C-8.

6.     Alongwith the written statement, opposite party No.2 has filed affidavit of Sh.Rajeev Gupta, Director-CS Ex.OPW/2/A and other documents Ex.OP-2/1 to Ex.OP-2/7.

7.        Rejoinder filed by the complainant.

8.       We have carefully gone through the pleadings of counsel for the both the parties; arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsel for the complainant for the purposes of adjudication of the present complaint.

9.    The complainant has pleaded in his complaint that the mobile phone purchased by him from opposite party was defective and has prayed for its replacement or cost of mobile phone. Complainant sought the services of opposite party no.1 for repair of mobile phone set on 1.8.2016 by paying services charges of Rs.3043/- vide Ex.C-4 and again on 14.7.2018 by paying services charges of Rs.2901/- vide Ex.C-3. Complainant sought services of authorized service centre of Samsung Company i.e. mobile manufacturer, but despite getting it serviced from authorized representative of the Company the mobile was not working properly. When the complainant approached opposite party no.2 telephonically he was advised to contact/ avail service of opposite party no.1. Opposite party no.1 then advised the complainant on 21.11.2018 to get few more parts like touch, motherboard etc. replaced and complainant handed over the mobile to opposite party no.1 (Ex.C-2). Pleadings of the complainant have been supported with affidavit of Smt.Preeti Aggarwal placed on file.

10.          Opposite party no.1 despite services has failed to appear and defend his case and was proceeded against exparte vide order dated 4.12.2020. Opposite party no.1 has failed to file reply and rebut the allegations leveled in the complaint and thus has impliedly admitted the claim of the complainant.

11.        Opposite party no.2 on its part has submitted in the written statement wherein they have claimed that handset being out of warranty and hence opposite party no.2 is not liable for any service on its part. Further opposite party no.2 has said that the same can be got repaired from opposite party no.1 i.e. authorized service centre on chargeable basis.

12.      From the above details, it is brought out that the complainant has not submitted any document regarding purchase of mobile, thus, the warranty/guarantee period cannot be ascertained. On the other hand, opposite party no.1 has failed to provide satisfactory service to complainant as far as of repair the mobile set on payment basis is concerned. Mobile set in question despite service from authorized centre is not working properly.

13.    In view of the abovesaid discussion, facts and circumstances, we partly allow the complaint and opposite party is directed to return a defect free phone to the complainant within a period of 15 days from the receipt of copy of this order, failing which opposite party no.1 shall be liable to return price of the mobile alongwith 6% p.a.  interest to the complainant from the date of filing of the complaint till its realization. Opposite party no.1 is also directed to pay Rs.3000/- as litigation expenses to the complainant. Compliance of the order be made within 30 days of the receipt of the copy of the order.

14.         The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

15         .    Copy of the order be communicated to the parties free of charges. After compliance, file be consigned.                                                                                                                           

                                                                             (Naveen Puri)

                                                                                President   

Announced:                                                   (Raghbir Singh Sukhija)

July 14, 2022                                                       Member

*MK*