Complainant Kulwant Kaur 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 change the new mobile hand set or to repay/refund the amount of Rs.4200/-. Opposite parties be further directed to pay Rs.20,000/- as damages for causing agony, tension and mental harassment alongwith Rs.15,000/-  as litigation expenses alongwith interest @18% per annum. Opposite parties be next directed to pay Rs.20,000/-  alongwith interest @ 18% per annum on account of unfair trade practice upon the opposite parties jointly and severally in the  ends of justice and fair play.

2.        The case of the complainant in brief is that she is poor lady and a house wife. She had purchased one Intex Mobile Hand Set Model No.Q3 bearing its IMEI No.1. 911426850598221 and IMEI No.2. 911426850598249 from opposite party no.1 for Rs.4200/- vide invoice No.316 dated 25.4.2017 and mobile set is within warranty period. After few days from the purchase of the mobile set it became out of order and started hanging up a stopped working as it was having some manufacturing defect. She approached the opposite partyno.1, they told to update the software of the mobile. Opposite party no.1 kept the mobile set on 5.6.2017 for software update and returned the mobile back to him on 6.6.2017 with promise that mobile will work properly in future but the mobile set started hanging again. Moreover, the screen started blanking up alongwith hanging. She again approached opposite party no.1 and they openly and clearly told her that he cannot remove the defect of the mobile and it is beyond his capacity to repair the mobile. On the advice of opposite party no.1, she went to authorized service centre as opposite party no.2 on 27.6.2017 but they did not repair or replace the said mobile till date. She again went to opposite party no.2 on 3.7.2017 to repair the mobile set and opposite party no.2 openly and clearly told her that they cannot remove the defect of the mobile and it is beyond their capacity to repair the mobile. The opposite parties intentionally and willfully sold the faulty and defective mobile set to her and committed fraud with her.  A legal notice was also served upon the opposite parties through her counsel on 14.7.2017 but reply has not been received till date. Thus, there is deficiency in service on the part of the opposite parties.

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 against the opposite party no.1 is not maintainable as the complainant has not come to the Forum with clean hands and suppressed the material facts and has filed the present complaint on the basis of wrong and misleading facts. On merits, it was admitted that complainant purchased Intex mobile set Model No.Q 3. The complainant never visited the opposite party and opposite party no.2 and 3 for any complaint or defect in the mobile set. All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint with costs.

4.       Opposite party no.2 appeared through its counsel and filed its written reply by taking the preliminary objections that the present complaint is not maintainable  against the opposite party and the same has been filed just to harass the opposite party for getting undue advantage of the process of law; the complainant has not come before this Ld.Forum with clean hands and has suppressed the material facts from this Ld.Forum and the complainant has no cause of action to file the present complaint against the opposite party. On merits, it was submitted that actually the complainant never paid any visit to the service centre of opposite party so the question of repairing or replacing the mobile handset does not rise. Had the complainant paid any visit to the opposite party’s service, there must have been a Job Card to the complainant for its repairing or replacement as per the proper procedure of the service Centre and must have remove the fault/defect if any in the mobile handset as alleged by the complainant.  All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint with costs.

5.       Opposite party no.3 did not opt to put in appearance despite service of notice as such it was ordered to be proceeded against ex-parte.

6.       Counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1, alongwith other documents Ex.C2 to Ex.C4 and closed the evidence.

7.       Counsel for the opposite party no.1 has tendered into evidence affidavit of Sh.Ankit Mahajan son of Tarsem Kumar Ex.OP-1/1 and closed the evidence.

 8.      Counsel for the opposite partyno.2 has tendered into evidence affidavit of Sh.Raman  Mahajan Prop. Of Mahajan Watch and Telecom Ex.OP-2/1 and closed the evidence.

9.        From the entire above discussion, it stands fully proved on record that  complainant purchased one Intex Mobile Hand set Model No.Q3 bearing its IMEI No.1. 911426850598221 and IMEI No.2. 911426850598249 from opposite party no.1 for Rs.4200/- vide invoice No.316 dated 25.4.2017 and mobile set is within warranty period as the phone was purchased on 25.4.2017 and the  legal notice served on 14.7.2017 through registered post to opposite party no.2.  To prove his case, the complainant has relied upon judgment of Consumer Dispute Redressal Commission, Union Territory, Chandigarh  in case 71 of 2005 titled as “Raj Hans Studio Vs. Krishan Lal in which it was held that if there is defect in the mobile set after two weeks of its purchase and opposite party did not pay any heed when it brought to his notice. The dealer was under obligation to refer the matter to manufacturer for necessary relief.  So, there is deficiency in service on the part of the opposite party and the price of handset is to be paid by the opposite party.  He further relied on judgment of Meghalaya State Consumer Disputes Redressal Commission, Shillong in  Appeal No.FA/3/2013 titled as Electro Audio Vision Vs. M/s.Diddan Construction  428, 2014(1)CLT in which it was held that dealer cannot wash off his hands after making the sale and shift his burden to the manufacturer. A consumer is primarily concern with the dealer from whom he buys the goods.

10.        Resultantly, we allow the complaint with costs and the opposite parties No.1 and 3 jointly and severally directed to make payment of Rs.4200/- to the complainant. Complainant is directed to return the phone in dispute to the opposite party no.1 within 15 days from the receipt of copy of order. Opposite party no.1 and 3 will comply the order within one month from the date of receiving of the mobile in dispute by the complainant, failing which the opposite parties shall be liable to pay the interest @6% per annum on the aforesaid amount of Rs.4200/- from the date of  passing of order till the payment is made to the complainant. The opposite parties No.1 and 3 are also directed to pay Rs.2,000/- as compensation while litigation expenses are assessed at Rs.1,000/- to the complainants.

11.        Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced:                             (Rachna Arora)                   (Rajita Sareen)
November 19, 2018.                    Member                         Presiding Member

 MK