Complainant Raghbir Singh vide the present complaint U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short the Act) for issuance of the necessary directions to the opposite parties to replace the Mobile handset with new one and refund Rs.26,700/- and Rs.15,000/- as damages towards harassment mentally and financially alongwith litigation expenses of Rs10,000/- to him, in the interest of justice.

2.       The case of the complainant in brief is that he purchased a Brand New Mobile Handset HTC having Model No.10, Pro, IMEI No.352752080177181 from the opposite party no.2 for Rs.26,700/- on  20.2.2017.  At the time of its purchase he told the opposite party no.2 that the handset had already been activated but they clearly denied.  Thereafter the head phone of the Mobile Phone in question was defected and he approached the opposite party no.2 then they asked him to approach opposite party no.3. On 14.8.2017 he approached the opposite party no.3 and requested them to remove the defect in the head phone of the Mobile phone or replace it with new one but the opposite party no.3 told him that his mobile bill is forged one as his handset has already been activated on 1.2.2017 i.e. prior to the date of purchase i.e. 20.2.2017. On 14.08.2017, when he approached opposite party no.3, he also took with him his another HTC Mobile Handset for its repair and the complaint of same was lodged by him with the opposite party no.3.Regarding this they issued delivery note bearing Job Sheet No.WA-170814014 and officials of opposite party no.3 had written the activation date of the Mobile in question on the backside of the impugned bill dated 20.2.2017 issued by opposite party no.2. Thereafter he approached the opposite party no.2 and asked them to replace his Mobile Phone in question as they have played fraud with him by giving already activated Mobile Handset to him but they clearly refused to admit their guilt and started lingering on the matter on one excuse or the other. Hence this complaint.

 3.      Notice of the complaint was issued to the opposite party no.1 which was not received back and the opposite party no.2 had been served through dasti summon. Case called several times but none had come present on their behalf, therefore, opposite party no.1 and 2 were proceeded against exparte vide order dated 4.12.2017.

4.     Notice of the complaint was issued to the opposite party no.3 who appeared through its counsel and filed its written reply by taking the preliminary objections that the opposite party has no branch or office in the Territorial Jurisdiction of this Hon’ble Commission; the present complaint is liable to be dismissed U/s 26 of the Consumer Protection Act as the present complaint is gross abuse of the process of law; the complainant has concealed the true and material facts from the knowledge of this Hon’ble Commission; the present complaint is gross misuse of process of law; no cause of action has arisen in favour of the complainant and against the opposite party to file the present complaint. On merits, it was submitted that the complainant had visited the opposite party no.3 first time on 14.08.2017 and after inspection of mobile handset by the concerned engineer that the handset was activated 20 days earlier from the date of its purchase i.e. 20.2.2017 and subsequently the handset in question sold at later bill dated 20.02.2017 proves the subsequent sale of the handset and resultantly warranty of the handset was void due to the subsequent sale. The present complainant had taken back the aforesaid handset from the opposite party no.3 on the same day i.e. 22.08.2017. There is no any specific allegation against the opposite party no.3 with respect to any deficiency in service and unfair trade practice with respect to the services provided by the opposite party no.3 as the complainant had raised all the allegations against the opposite party no.2 as such the opposite party no.3 is not liable for any act and conduct of opposite party no.2. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

 5.      Complainant has tendered into evidence his own affidavit Ex.CW1/A, along with the other documents exhibited as Ex. C1 to Ex.C3 and closed the evidence.

6.      Counsel for the opposite party no.3 tendered into evidence affidavit of Daljit Singh Ex.OP-3/1, alongwith other documents Ex.OP-3/2 to Ex.OP-3/5 and closed the evidence.

7.    We have carefully gone through the pleadings of counsels for the parties; arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the opposite party no.3.                                                 

8.      Ex.C-1 is the copy of the invoice, whereby the complainant purchased one Mobile Phone HTC having Model No.10, Pro, IMEI No.352752080177181 from opposite party no.2 for a sum of Rs.26,700/- on 20.2.2017. Ex.C-2 is the Job Sheet dated 14.8.2017 issued by opposite party no.3. Opposite parties no.1 and 2 failed to appear and was thus proceeded against exparte. Opposite party no.3 has placed on record Ex.OP-3/2 i.e. copy of Invoice, Ex.OP-3/3 i.e Job Sheet and Ex.OP-3/4, wherein it is clearly mentioned that the date of purchasing the mobile phone in dispute was 20.2.2017 but the date of activation of the said mobile phone was 20 days before the date of its purchase. As a result, the warranty of the handset was void due to subsequent sale and the complainant had taken back the handset on 22.8.2017. As such there is no specific allegation against the opposite party no.3. All the allegations go against the opposite party no.2 who sold a second hand mobile handset to the complainant. The complainant had purchased the mobile phone on 20.2.2017, whereas the said mobile phone had already been activated 20 days prior to the said purchase i.e. on 1.2.2017. The act of opposite party no.2 amounted to unfair trade practice on its part and the complainant underwent a lot of harassment and also suffered monetarily due to such an act of the opposite party No.2. Moreover, failure to contest the claim of the complainant by opposite party no.2 shows its indifferent attitude to redress the grievance of the complainant.

9.     As an upshot of aforesaid discussion, we partly accept the complaint of the complainant with a direction to opposite party no.2 to refund the amount of Rs.26,700/- the same being the price of the mobile phone and also to pay a sum of Rs.5,000/- for mental harassment undergone by the complainant and a sum of Rs.5,000/- as litigation expenses. Order be complied within 30 days of the receipt of the copy of the order, failing which the opposite party will be liable to pay interest @ 6% p.a from the date of the order till its realization.

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

            (Neelam Gupta)

                                                                            President   

Announced:                                                   (Harvimal Dogra)

March 5, 2021                                                      Member

*MK*