Complainant Varun Thakur 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 handset with a new mobile handset or to refund the full price of the Mobile Handset alongwith interest. Opposite parties be further directed to pay Rs.50,000/- as compensation account of mental agony, harassment, torture and emotional distress suffered by him.

2.        The case of the complainant in brief is that he purchased a Mobile handset XOLO from the opposite party no.1 on 6.5.2014 being IMEI No.911332302140335. The mobile set started giving problems and its touch stopped working and number of complaints were made to the opposite parties and lastly on 30.7.2014 opposite party no.3 told him to handover the mobile set to Service centre and the mobile will be sent back in RG to the company for repair and he handover the set to the opposite party no.3 and they told him, that they are unable to verify the warranty of the mobile and therefore they cannot prepare the job sheet. They will check this issue latter on and gave him their business card with a job sheet No.40335/90330. After about 15 days, when he contacted the opposite party no.3, he told that mobile set has not been received by them from the company and when he asked them to give the consumer's copy of the job sheet, the opposite party no.3 replied “Customer's copy of the job sheet cannot be given to you”. He has next pleaded that he contacted company’s help line on various dates but all in vain. He is an unemployed person and earning his livelihood by means of giving private tuition only.  So, he suffered economically as his tuition work has been adversely affected as much of the time got wasted in inquiring the details from service centre and other agencies. Thus, there is serious deficiency, negligence and carelessness on the part of the opposite parties. Hence this complaint.

3.          Notice of the complaint was issued to the opposite parties. Opposite parties No.2 & 3 appeared through their counsel and filed their written reply taking the preliminary objections that the complaint filed by the complainant is not maintainable; the complainant has not come to the Court with clean hands and has suppressed the true and material facts; the complainant has got no locus standi to file and maintain the present complaint; the present complaint has been filed without any technical report. So the same is required to be dismissed on this score only; the complainant has got no cause of action against the opposite parties; the present complaint is nothing but an outcome of mere sheer and greed of the mind of the complainant. It was further submitted that the opposite party no.2 is one of the renewed company in India and alongwith other products is engaging in business of manufacturing mobiles and its sales. That on a single time thousands of mobiles are manufactured and if there is any alleged manufacturing defect during manufacturing of the same, then the same will occur in an entire lot. It was next submitted that the complainant in regards to his complaint regarding the Mobile has approached the service centre on 3.9.2014 with the touch problem and the engineer of the service center gave the solution to the complainant for repairing the unit but the complainant refused to repair and demanded for replacement to which it was replied that the unit is repairable so it cannot be replaced as per company policy but the complainant remained adamant for replacement/refund. It was submitted that company provides one year warranty and warranty means repairs not replacement and though the warranty is subject to some condition. As a good will gesture the counsel for the complainant gave a statement before this Hon’ble Forum that the opposite parties are ready to refund the price of the unit subject to deposit of old unit with accessories to which the complainant denied, this act on the part of complainant clearly shows that the complainant has filed the present complaint just to grab benefits illegally from the opposite parties. The opposite parties were and are still to repair the unit as per company policy. On merits, the same averments have been re pleaded while denying and refuting the other allegations made in the complaint and lastly praying for its dismissal with costs.

4.       Notice of the complaint was issued to the opposite party no.1 but it has not come present, so, it was proceeded against exparte vide order dated 9.2.2015.

5.       Complainant has tendered his own affidavit Ex.C1 alongwith other documents Ex.C2 to Ex.C16 and closed the evidence.

6.       Counsel for the opposite parties no.2 & 3 has tendered affidavit of Sh.Ankit Aggarwal Ex.OP-2,3/1 and closed the evidence.

7.       We have carefully gone through the pleadings of both 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 purposes of adjudication of the present complaint.

8.        We have carefully examined and thoroughly considered the evidence and other documents as available on the records of the proceedings along with an exhaustive but judicious perusal of the allegations as made out in the body of the complaint in the back drop of the presenting gravity (in the complainants’ prosecution) and the OP’s rebutting defense. Further, we find that the OP1 vendor preferred the ‘ex-parte’ absence giving prompt to the ‘presumption’ that he had ‘no defense’ to plead before the Forum. The OP2 manufacturer has rightly pleaded its ‘refuge’ in the settled principle of ‘repairs’ as first-routine option and ‘replacement’ as last resort and that too as a compulsive ‘no escape’ choice. No doubt, the complainant has not categorically brought out any ‘inherent manufacturing defect’ but the ‘non-functioning’ of the Cell Machine as duly proved on record and the ‘non-attendance’ of his complaint for full ‘eight’ months are sufficient to call for a justifiable ‘refund’ of its cost price with interest etc. To top it all, the complainant was also forced to buy the new Mobile Ex.C8 as his repaired Mobile was not being returned by the OP vendor/ manufacturer. Moreover, somehow the counsel for the OP2 & OP3 (perhaps on account of a ‘belated realization’) had also offered a full ‘refund’ of the Mobile Cost to the complainant vide his statement dated 03.03.2015, may be to circumvent ‘levying’ of cost and compensation.   

9.       In the light of the all above, we find and hold the titled OP1 vendor and the OP2 Manufacturing company both guilty of ‘unfair trade practice coupled with deficiency in service’ and thus partly allowing the present complaint, we ORDER them to refund the full cost price of the sold Mobile Set in question i.e., Rs.7,990/- to the complainant besides to pay him Rs.5,000/- as cost and compensation for causing him unnecessary harassment within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall further attract interest @ 9% PA from the date of the 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)

August, 12 2015.                                                Member.

*MK*