Complainant Mukesh Sharma 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 replace the defective mobile with new one and refund the amount of Rs.6500/- alongwith damages Rs.20,000/- on account of harassment, mentally and physically alongwith Rs.5,000/- as litigation expenses, in the interest of justice.

2.        The case of the complainant in brief is that he has purchased one brand new micromax mobile handset model No.106 from the opposite party no.2 for a sum of Rs.6500/- including tax on 10.12.2014. The said phone was not working properly. He asked the opposite party no.2 to repair this phone properly. The opposite party no.2 said that the mother board of mobile phone is not working properly and they assured that after its repair it will be deliver to him shortly but after few days the opposite party deliver him phone without any repair. He repeatedly visited the opposite party no.2 and ultimately the same was returned to him on 10.9.2014 after gap of one month. He has further pleaded that the said mobile again suffered from many problems when the same was under warranty period. He again submitted the same to opposite party no.2 they again kept the mobile in the center for more than 20 days and was repaired thrice by the opposite party no.2. The opposite party has not properly repair the phone and same has handed over to him. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.       Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed its written reply  taking the preliminary objection that the present complaint is a gross abuse of the process of law, totally uncalled for and not maintainable.  The complainant has not disclosed the correct fact in the present complaint and try to mislead the Forum by making false frivolous and baseless allegation against the opposite party. The complainant has not disclosed the specific defect in the handset and alleging general allegations, the complainant claim in his complaint that he approached to the authorize service center of the opposite party for the repair and authorize service center did not repair the handset, the complainant did not file any document in support of his allegation and only alleging general and baseless allegations. The complainant not even mentioned any specific date and supporting job card in his complaint to prove that he ever visit the authorize service centre of the opposite party for any services, the complainant also not disclosed the cause of the defect and try to mislead the Forum by alleging such type of baseless allegations. The opposite party never denied providing its services to the complainant as assured under the terms of the warranty and the complainant agree with the terms of warranty at the time of purchase of handset. The complainant did not file the terms of warranty alongwith the present complaint, the present complaint is false frivolous and baseless complaint filed by the complainant just to drag the opposite parties in unwanted litigation and cause financial losses to contest the unwanted litigation.  On merits, all allegations made in the complaint have been denied and opposite party lastly prayed that the complaint may be dismissed with costs.

4.      Opposite party no.2 had been served through registered A.D. but none had come present on its behalf despite repeated calls. Hence, it was ordered to be proceeded against exparte vide order dated 4.1.2016.

5.      Complainant tendered into evidence his own affidavit Ex.C1  alongwith other document Ex.C2 and closed the evidence. 

6.       Ld.counsel for the opposite party no.1 made a statement that he does not want to file any evidence on behalf of opposite party no.1 and stated that his written statement be read as his evidence and closed the evidence.

7.        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 also taking the due judicial-notice of the OP2 vender’s 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) has no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte absentee OP2 vendor by way of a close examination and a fairly deduced ‘resume’ upon which to place/ base the resultant award under the adjudicatory Act.

8.       We find that the present complaint has arisen as a result of the repeated ‘dysfunction’ of the ‘Micro –max’ make mobile hand-set within the Warranty Period as purchased from the OP2 Vendor on 10.12.2014 vide Cash Memo # 884 for Rs.6,500/-. The OP2 Vendor has been alleged to have kept the Mobile in question with him for days together on the pretext of ‘repairs’ but the same could not be put back in the right and satisfactory working order. Incidentally, no job-card etc was ever issued to keep the track record of repairs etc and such the alleged ‘deficiency in service’ stands proved. The OP1 Manufacturer has averred that the OP2 vendor has neither been its approved dealer nor its authorized service centre and as such the ‘warranty’ was not applicable and has further rightly disowned the consumer liability and that proves the allegation of ‘deficiency in service’ on the part of the titled OP2 Vendor lining him up to an adverse award under the applicable statute. Moreover, the repeated visits to the OP2 Vendor by the complainant for repairs to his mobile hand-set in itself proves the inherently un-repairable defect.      

9.       In the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite party 2 Vendor to refund the full invoice-cost of the Mobile set i.e., Rs.6,500/- to the complainant besides to pay him Rs.2,000/- as cost and compensation. The entire cost of the award may be borne between the OPs themselves as per their mutual settlement (if any) but the OP2 shall be solely liable to comply the present orders and the exercise shall, by all means be completed/exhausted within 30 days of the receipt of the copy of these orders otherwise the above OP shall also be liable to pay interest @ 9% PA from the date of the present orders till actually paid

10.     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)

February,19 2016                                                             Member

*MK*