Complainant Arashdeep Singh has filed the present complaint against opposite parties (for short O.P.) U/S 12 of the Consumer Protection Act, 1986 with a prayer that opposite party be directed to replace the mobile in question. Opposite parties be further directed to pay Rs.50,000/- for illegal harassment and mental agony alongwith Rs.10,000/- as litigation expenses, in the interest of justice.

2.     The case of the complainant in brief is that he purchased the mobile set mark HTC one E-9 + vide IMEI No.357709063789387 for Rs.27,500/- from the opposite party no.3 on 3.10.2015. The set in question was suffering from defect of G Sensor and due to that mobile has a problem of auto rotation, motion sensor and gesture problem, so he in November 2015 submitted set in question to HTC collection point Amritsar to remove the problems and same was returned after one month i.e. December 2015 but SIM TRAYS of mobile was missing which was duly noticed to opposite party no.1, but till today opposite party no.1 has not handed over to him. He himself arranged SIM TRAYS for mobile after three months. He is doing MBA from Guru Nanak Dev University, Amritsar so he purchased the set in question to fulfill his internet etc. facilities but due to the defects of set he failed to get the facilities of internet according to his course. He has also made representation to the opposite party no.1 through email on 17.6.2016 and disclosed all the defects in the mobile but till today the mobile in question is lying with opposite party in defective condition. The mobile is within warranty period. He has arranged another mobile to fulfill his daily internet facilities and other needs. Thus the opposite party no.1 intentionally supplied defective mobile set in market which was sold to him by opposite party no.3, so all the opposite parties are liable jointly to compensate him for harassment and mental agony. Hence this complaint.

3.      On notice, opposite party no.2 appeared through its counsel and filed its written statement taking certain preliminary objections. On merits, it was submitted that the complainant first time visited the service centre of opposite party no.2 dated 24.05.2016 with problem symptom of heating and charging problem and the same was rectified/cured by the opposite party and the set was delivered to the complainant on ok/working condition with satisfaction of the complainant dated 25.05.2016. Again the complainant visited the opposite party no.2 on 7.6.2016 with the problem symptom of Front camera not working even the opposite party no.2 replaced that camera with same make and model in warranty and thereafter the complainant had never visited the opposite party service centre to take his mobile set back with the intention to harass the opposite party by filing frivolous complaint against the opposite party. The complainant has concocted a false story regarding sim tray as he failed to prove any strict proof with respect to false allegation of missing sim try.  All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.         Notice issued to opposite party no.3 had not been received back. Case called several times but none had come present on behalf of opposite party no.3, therefore, it was proceeded against exparte vide order dated 29.8.2016.

5.        Sh.Munish Kohli, Adv. appeared on behalf of opposite party no.2 on 29.8.2016 but on 27.9.2016 at the time of filing of reply has made a statement that he has no instructions from opposite party no.1, so it was ordered to be proceeded against exparte on the same day.

6.      Complainant tendered into evidence his own affidavit Ex.CW-I/A, along with the other documents exhibited as Ex. C1 to Ex.C7 and closed the evidence.

7.     On the other hand, counsel for the opposite party no.2 tendered into evidence affidavit of Sh.LalitKathuria son of Sh.Hakumat Rai Kathuria working as Centre Manager Ex.OP-2/1, alongwith other documents Ex.OP-2/2 to Ex.OP-2/8 and closed the evidence

8.        We have carefully examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while (at the same time) taking the due judicial-notice of the OP1 Manufacturer & OP3 venders’ intentional ‘ex-parte’ participation, in spite of the ‘proven’ summon-service through the prescribed ‘Registered AD’ post. Although, it has been a settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee(s) litigant(s) have no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte absentees by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the adjudicatory Act.

9.       We find that the present dispute/ complaint has arisen as a result of the alleged ‘refusal’ by the OP2 HTC Mobile Service Centre to repair the ‘HTC one E-9’ HTC Make mobile hand-set (left over there) within the Warranty Period as purchased (Ex.C2) from the OP3 Vendor on 03.10.2015 vide Cash Memo # 12431 for Rs.27,500/- on the pretext claim of ‘no-defect’ in the Mobile Set.  Somehow, the OP2 Service Centre had first provided the requisite repairs to the defective Mobile but it again went out of order and the OP service provider was allegedly re-approached to provide service-repairs but the same were again refused and thus prompted the present complaint.

10.     The OP2 service provider in its written reply duly supported by the necessary affidavit Ex.OP2/1 has expressed his inability to replace the HTC mobile stating therein that there has never been an inherent irreparable manufacturing defect, as allegedly claimed by the complainant and the Mobile Set has been in quite a good working order. We find that even the complainant could not prove the alleged manufacturing defect in the Mobile Set brought in for repairs at the OP2 ‘service-centre’ nor the complainant has produced any other cogent evidence to support of the alleged deficiency in service on the part of the titled opposite parties. We further find from the complainant produced Ex.C2 (purchase Invoice) that a discount of 25% i.e., Rs.9,000/- has been allowed and the sold set has been a DEMO set and thus cannot be replaced. Thus, we are of the considered opinion that the present complainant has not been able to statutorily establish any of the allegations as made out by him in the present complaint. 

11.     In the light of all above, we are of the considered opinion that the instant complaint can be best disposed of by directing the OP2 service provider to re-check the Mobile Set in question and keep it repaired and in right working order for free delivery to the complainant within a period of ‘7’ working days on receipt of the copy of the present orders and the complainant shall check and accept the same to his satisfaction. The parties shall however themselves bear own costs, here.

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

                          (Naveen Puri)

                                                                                             President      

ANNOUNCED:                                                                     (Jagdeep Kaur)

December 22, 2016                                                                Member

*MK*