By Dr.K.Radhakrishnan Nair,Member:

                   The case of the complainant is that he has purchased a Micromax-Yureka Mobile Phone for Rs.8,500/-(Eight Thousand And Five Hundred Only) for his own use from the Second opposite party. It was promised that the company will repair or replaces on suitable complaints with in an year. On the next day of its purchase itself it was found that the mobile is not a new one but a second hand one. The image of the used persons have appeared in the screen which is a clear indication of the system as already in use. Complainant was very much aggrieved and sent a lawyer’s Notice on 27/05/2015 to both the parties, where the first opposite party only replied raising false counter allegation and the second opposite party did not reply at all. As demanded by the complainant through the lawyers notice, opposite party may be directed to give a new set of phone replacing the old one and compensation of Rs.50,000/-(Rupees Fifty Thousand Only) and costs Rs.1500/- admitted the case, Notice issued opposite parties appeared through counsel filed version by the second opposite party. Second opposite party has taken the following defenses. The allegation that he was given a second hand Mobile is baseless and there was no circumstances and necessity to do that. Being an online purchase, the complainant himself  has opened the seal of the packet in the presence of this opposite party. As per the conditions of online purchase complaints if any has to be lodged or registered with in three days with the first opposite party. No warranty in given by the second opposite party. Such warranty is to be given by the owner company new Reliance company. Reliance company is not a party and the complaint is therefore bad for non joinder of necessary party. The actual cost of the Mobile was 12,500/-(Twelve Thousand and Five Hundred Only). Complainant being a known person  only, the same was given at a discount price for Rs.8,500/-(Eight Thousand And Five Hundred Only)  Now the case is filed by the complainant not to give the balance of Rs.4,000/-(Rupees Four Thousand Only). Which was demanded several  times. Complainant is not entitled to any amount and there is no deficiency in service on the part of opposite parties. Therefore complaint needs to be dismissed allowing exemplary cost to the opposite party. The cases then posted for evidence. Points for consideration are the following. 1) Is there any deficiency in service on the part of opposite party? 2) If so, what reliefs and costs? Proof affidavit was not filed. On behalf of the complainant 6 documents were produced and marked as Exhibits P1 to P6. Ext.P1 is the Estimate dated 19/05/2015, Ext.P2 is the Lawyer Notice dated 27/05/2015,Ext.P3 is the postal Receipts(2 Nos.), Ext.P4 is the Reply to the Notice 05/06/2015, Ext.P5 is the Acknowledgement Card, Ext.P6 is the Acknowledgement card.

                   2. The above documents are in no way support the pleadings of the complainant except purchase of the mobile. Pleadings are not enough. Since the complainant has failed to prove his pleadings mainly the allegation of second hand set we have no other alternation but to dismiss the complaint. We are also of the considered view that this complaint comes under the category of frivolous or vexatious complaints attracting Section 26 of the consumer protection Act 1986 for more than one reason.

1.It was a fit case to dismiss in limine.

2.Being a benevolent legislation, a chance was given to him for rendering evidence to prove his pleadings that some images of previous user had appeared on the screen.

3.Non submission of proof affidavit and non production of documentary evidence to prove relevant pleas are nothing but misuse of this Forum and wastage of precious time of this Hon’ble Forum. Therefore, We are taking a serious view against this type of conduct and direct the complainant to pay Rs.2,500/-(Two Thousand And Five Hundred only) to the Legal Benefit Fund as punitiee  costs with in thirty days from the date of this pronouncement. Complaint dismissed with costs.

                   Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 26th day  of  December  2019

Sd/-                            Sd/-                                                Sd/-

Sreeja S.                     Dr.K.Radhakrishnan Nair         P.K.Sasi, Member                      Member                                        President.                                                                

                                   Appendix

Complainant’s Exhibits                                 

Ext.P1 Estimate dated 19/05/2015

Ext.P2 Lawyer Notice dated 27/05/2015

Ext.P3 Postal Receipts(2 Nos.)

Ext.P4 Reply to the Notice 05/06/2015

Ext.P5 Acknowledgement Card

Ext.P6 Acknowledgement Card                                                                                           

                                                                                Id/-

                                                                                      Member