BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                            

Lalit Gupta son of Sh. J.R. Gupta, resident of  House No. 652, Sector-7, Panchkula.

                                                                                       ….Complainant

Versus

1. Micromax, Corporate Office, Plot No. 697, Udog Vihar, Phase-V, Gurgaon.
2. Dishu Mobiles, SCO No. 45, Canam Plaza, Shop No. 207, Sector-11, Panchkula.
3. M/s Abacus Systems, SCO No. 824, Ist Floor, Manimajra, Chandigarh.

                                                                        ….Opposite Parties

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:                 Mr. Dharam Pal, President.

              Mrs. Anita Kapoor, Member.

              Mr. S.P. Attri, Member.

For the Parties:     Mr. Abhineet Taneja, Adv., for the complainant.

              Ops. No. 1 & 3 are already ex-parte.

None for the OP No. 2.          

ORDER

(Dharampal,  President)

1. Briefly stated that the complainant purchased a Micromax A-116 I, vide cash bill No. 8053 dated 26.01.2014 (Annexure C-1), for an amount of Rs.12,300/- from OP no. 2 with a warranty of one year.  After six months of the purchase, the mobile phone started giving the problem of battery back-up. The complainant has shown the mobile to OP no. 2, who advised the complainant to approach the OP no. 3.  The complainant approached the OP no. 3, who after checking the mobile verbally advised the complainant to change the battery and as per their advise, the complainant purchased the new battery for Rs. 800/-.  In the month of October, 2014, the phone again started giving problem in charging the battery in ‘switch on’ mode.  The complainant approached the OP no.  2 who again advised the complainant to approach OP No.3. The complainant approached the OP no. 3 and requested them to repair the mobile.  After checking the mobile, the officials of the OP no. 3 refused to issue any job-sheet and asked the complainant to pay the sum of Rs. 4,000/-, if he wanted to get the mobile repaired whereas the mobile phone was within the warranty period.  The complainant requested the OP no. 3 either to replace the mobile with new one or repair the same free of cost but they refused to do the same on the ground that the seal of the mobile phone was not intact.  This act and conduct of the Ops amounts to deficiency in service on their part.  Hence this complaint.
2. Notice was issued to Ops no. 1 & 3 through registered post and the same has not been received served or unserved. None has appeared on behalf of the Ops no.  1 & 3. It is deemed to be served.  Hence Ops no. 1 & 3 are proceeded against ex-parte vide order dated 16.04.2015.
3.  OP no. 2 appeared and filed written statement.  It is submitted that the mobile was purchased from OP no. 2. It is submitted that the complainant himself approached the OP no. 2 alongwith a cutting of newspaper and as per the demand of the complainant the OP no. 2 sold the above said mobile to the complainant. It is submitted that the mobile carried the warranty of one year for the handset and six month for the accessory which belonged to the manufacturer not the seller. It is submitted that the defects occurred in the mobile phone due to mishandling or over charging by the complainant. It is submitted that OP no. 2 performed his duty and advised the complainant to get the mobile repaired from OP no. 3. It is submitted that the period of warranty of the accessory has already been expired so the complainant has to bear the expenses to change the same. It is submitted that the complainant never approached the OP no. 2 with the problem of switch on and switch off. It is submitted that he is only the seller of the product and neither extract any money from the complainant. It is submitted that the complainant used the mobile phone for six months without any problem. Thus there is no deficiency in service on the part of OP no. 2 and prayed for dismissal of the complaint with costs.
4. The counsel for complainant has tendered the evidence by way of affidavit Annexure C-A alongwith document Annexure C-1 and closed the evidence.   On the other hand, OP no. 2 has tendered the evidence by way of affidavit Annexure OP2/A and closed the evidence.
5. We have heard learned counsel for the complainant and have also perused the case file minutely and carefully.
6. It is admitted that the complainant has purchased a Micromax A-116 I, vide cash bill No. 8053 dated 26.01.2014 (Annexure C-1), for an amount of Rs.12,300/- from OP No.2 with a warranty of one year. After six months of the purchase, the mobile phone started giving problem in battery back-up. The complainant approached the OP No.3, who after checking the mobile advised the complainant to change the battery. As per advice of Op No.3, the complainant purchased a new battery for Rs. 800/-. But in the month of October, 2014, the phone again started giving problem in charging the battery in ‘switch on’ mode. The complainant requested the OP No. 3 to repair the mobile. The official of Op No.3 checked the mobile but refused to issue any job-sheet and also asked the complainant to pay a sum of Rs.4,000/-, if he wanted to get the mobile repaired whereas the mobile phone was within the warranty period. The complainant also requested the OP No.3 either to replace the mobile with a new one or repair the same free of cost but they refused to do the same on the ground that the seal of the mobile phone was not intact.
7. On the other hand, the Op No.2 in his written statement admitted the purchase of the mobile handset and also one year warranty & six month for the accessory which belonged to the manufacturer not the seller. It is further submitted that the complainant approached the OP No.2 who advised him to get the phone repaired from the Op No.3 i.e. authorized service center as the Op No.2 is only the seller of the product. It is submitted that the defects occurred in the mobile phone due to mishandling or over charging by the complainant. The period of warranty of the accessory has already been expired so the complainant has to bear the expenses to change the same.
8. We feel that it is only OP No.3 who could clarify the fact regarding the repair and its returning to the complainant after proper repairs. However, OP No.3 has not come forward to contest the case and clarify the situation or to corroborate the defence of the OP No.2, rather it preferred to proceed against ex-parte, which draws an adverse inference against it. Moreover, the complainant in his complaint has stated that the warranty of handset was for a period of one year and the defect in the handset appeared within warranty period. Whereas the Op No.2 has mentioned that the warranty for handset was for one year and for accessory the warranty was for six months but OP No.2 has failed to place on record any warranty card to corroborate their contention. The evidence of the complainant has gone unrebutted. As such, the same is accepted as correct and the deficiency in service on the part of Opposite Parties is proved. 
9. In view of the abovesaid facts and circumstances of the case, the complaint of the complainant is hereby allowed and the Ops are directed as under:-

(i)      To refund the amount of Rs.12,300/- alongwith 9% per annum from the date of purchase till realization.

(ii)     To pay an amount of Rs.5,000/- to the complainant for compensation as mental agony and harassment.

(iii)    To pay an amount of Rs.2,000/- as cost of litigation.

Let the order be complied with within the period of 30 days from the receipt of certified copy of this order. A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

Announced

05.10.2015         S.P.ATTRI          ANITA KAPOOR      DHARAM PAL

                           MEMBER                    MEMBER                    PRESIDENT

Note: Each and every page of this order has been duly signed by me.

                                                                   DHARAM PAL

                                                                    PRESIDENT