Vikash Kumar complainant has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite parties praying that opposite parties may kindly be directed to pay Rs.3300/- along with interest @ 12% PA. Complainant has also claimed Rs.50,000/- for harassment and mental agony including Rs.20,000/- as litigation expenses, all in the interest of justice.   

2.       The case of the complainant in brief is that he is serving in the Army and at present posted at 2 ammunition sub depot Dalhousie road, Pathankot. It was pleaded that complainant gone through the advertisement of Data Wind Tab and came to know that it will be beneficial for him as the internet facilities exits with the Data Wind Tab and other facilities like Wi Fi were functional on the Data Wind Tab. Complainant had placed order for the said product through on line and order was booked on 10.05.2017 vide invoice number HYDECOMT 0510171789 and the buyers order number CCAGKT9C-1 and order ID for purchase of above said product was received on 13.05.2017 and the Data Wind Tab was dispatched through EDCM express which was received by the complainant at the address mentioned in the head note of the complaint. It was further pleaded that on 15.05.2017 Data Wind Tab was received by the complainant and terms of delivery was DST/SC : PB/JLF/PTK and a sum of Rs.3300/- was paid by the complainant as cash on the delivery of above mentioned product vide receipt number 858563282. It was also pleaded that DM/GM of the opposite parties cheated the complainant and played fraud with him by sending the defective piece of the above said item to him as following defects were found in the Data Wind Tab:- a) The Data Wind Tab is not connected with Wi Fi. b) The Data Wind Tab is not connected with share it. c) The Data Wind Tab is not connected with blue tooth. d) The Data Wind Tab is not connected with internet. e) When the Data Wind Tab was put on charging, it becomes very hot, when the Data Wind Tab was switched off then Wi Fi automatically starts and the battery backup finished within few minutes. It was next pleaded that as per the description of the above said product the key board and free internet would be given to the complainant at the time of receiving the same after paying due amount which was already paid by the complainant to the opposite parties on 15.05.2017 but the key board was not given along with Data Wind Tab and the internet was not working. It seems that opposite parties supplied the defective piece to the complainant who is always on his duties in for flung area to guard the nation from external aggression and cheated him by playing fraud with him due to which complainant was frustrated and suffering from mental agony which is deficiency in service on the part of the opposite parties. Complainant approached the opposite parties time and again but the opposite parties were adamant and with their malafide intention harassed the complainant, hence this complaint.

3.       Notice of the complaint was issued to opposite parties who did not appear and were proceeded against exparte vide order dated 26.07.2017.   

4.       Counsel for the complainant had tendered into evidence affidavit of complainant Ex.C1 along with documents Ex.C2 and Ex.C3 and closed the evidence.

5.       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 notice/service of summons; of course, in the very back-drop of arguments as put forth by the learned counsel for the complainant.

6.       We find that the complainant had on line purchased (affidavit Ex.C1) one pc of Data Wind Tab T8G, that was delivered on 15.05.2017 vide Invoice # 71739 of 05.10.2017 (mm/dd/yr) i.e., 10.05.2017 (Ex.C2) for Rs.3300/- (cash on delivery basis) along with its warranty card (Ex.C3) duly certifying its working order status with 12m/6m warranty for tablet/battery etc. However, the tablet was found to be in an ‘out of order’/defective condition and also lacked in measures of ‘standard cum quality’ with those assured/ advertised. The complainant had approached the opposite parties, many a time, with his instant grievance but found no relief at their hands by way of replacement/refund and thus prompted the present complaint.

7.       We find that the complainant’s consumer rights have indeed been determined since the Opposite Party vendors have intentionally opted for ex-parte proceedings right from the beginning and thus going by the old accepted norms it can be judicially presumed that the titled opposite parties never had any defense to prosecute/plead in their support.

8.       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 litigants do not have ‘defense’ to prosecute and thus they instead prefer 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.           

9.       In the light of the all above, we find the hue of actionable statutory merit in the present complaint and thus partly allow the present complaint and ORDER both the titled opposite party vendors to replace (free of any cost) the mal-functioning defective e-Tablet (in question) with a new/fresh piece of e-Tablet with similar specifications and in perfect working order to the complainant besides to pay him Rs.3000/- 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 Tablet (in question) with interest @ 9% PA from the date of purchase till actual payment along with cost and compensation that shall stand enhanced to Rs.5000/- .   

10.     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)

JAN. 10, 2018.                                                                          Member               

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