Complainant  Lovinder Kumar through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to replace the defective piece of mobile set with a new one of the same pattern alongwith Rs.20,000/- as damages, harassment suffered by way of mental tension and agony and litigation expenses or  in the alternative to pay Rs.35,900/- i.e. Rs.20,000/- towards damages etc. and Rs.15,900/- as price of the mobile handset to him  alongwith interest @ 18% per annum from the date of filing of complaint, till its realization, in the interest of justice.

2.      The case of the complainant in brief is that he has purchased one Gionee S6s having IMEI No.861598032644248 on 15.01.2017 from the opposite parties no.2 vide invoice no.5643 for Rs.15,900/-, manufactured by opposite party no.1. His phone was got hanged on 10.10.2017 and even while charging it heated up. Moreover the earphones are also not working properly since the date of its purchase. There was manufacturing defects in the phone and the mobile set is still within warranty period. He approached Authorized Service Centre of opposite party no.1 with a complaint and they informed him that there are manufacturing defects in the phone. As the phone is within warranty period, he requested them to replace the defected handset mobile with a new perfect mobile set but they are lingering on the matter on one pretext or the other. A legal notice has been served upon the opposite parties through registered AD post dated 17.10.2017 but no reply has been received. Thus, there is deficiency in service on the part of the opposite parties.  Hence this complaint.

3.       Notice issued to the opposite party had not been received back. Case called several times but none had come present on behalf of opposite party. Hence, opposite parties were proceeded against exparte vide order dated 12.1.2018        

4.     Counsel for the complainant tendered into evidence Special Power of Attorney dated 19.2.2018 Ex.C1 and affidavit of Sh.Deepak Kumar Ex.C7 alongwith other documents Ex.C2 to Ex.C-6 and closed the evidence. 

5.       After going through the complaint and arguments put forth by counsel for complainant. It is established that complainant purchased a Gionee S6s mobile handset, having IMEI No.861598032644248 on 15.01.2017 vide invoice no.5643 i.e. Ex.C-5 for Rs.15,900/-. After a few months this set started hanging and having the problem of heating while charging and earphones were also not functioning properly since the date of its purchase. Complainant approached authorized service centre of opposite party no.1 i.e. Arora Communications and they after examining the defective handset issued a job sheet which is produced as Ex.C-6 on the file. In this job sheet, the customer complaint is mentioned as “No charging, Handset not charging”. Complainant has also produced on file a copy of legal notice issued to opposite parties regarding his grievances as Ex.C2 and postal receipts are Ex.C-3 and Ex.C-4. Ex.C-7 is the affidavit of Deepak Kumar.

6.      On examining the documents minutely, it has come to our notice that Ex.C-6 which is the job sheet issued by service centre is not in the name of complainant rather it is in the name of Ms.Suman but IMEI  No.861598032644248 on  the job sheet is the same i.e. of the defective mobile but, it could be presumed that someone related to complainant must have gone to get the defective mobile rectified, as the IMEI no. is the same.  The next thing is that, the complainant has not made the service centre a party in the present complaint and the terms and conditions mentioned on the job sheet clearly indicate warranty period regarding “Earphone” as “first 6 months” beginning from the date of purchase of unit.  From this it is made out that the mobile was purchased on 15.1.2017 and the job sheet was issued on 10.10.2017 i.e. after the warranty period for earphones has expired and there is no defect mentioned on the job sheet regarding earphones.

7.      From the above discussion, it is made out that though the job sheet is issued within warranty period the defect of earphones is out of warranty as per terms and conditions mentioned on the job sheet. The problem of “No charging” is proved by Ex.C6 as it is mentioned in it clearly. But this Forum observes that address of the service centre and that of the seller of the mobile do not match with each other and as complainant has not made the service centre a party in the present complaint, it cannot be held liable for any claim against it. However, the job sheet issued by authorized service centre proves that there was some defect in the charging of the mobile set. So, the complainant deserves to be compensated for the same as his version is un-rebutted and unchallenged and not controverted by opposite parties by appearing in the Forum.

8.        From above detailed discussion the complaint of the complainant is partly accepted and opposite parties are directed to repair the defect parts of the mobile free of cost and make it in proper working condition upto the satisfaction of the complainant and if it is irreparable then to replace the defective mobile set with a new set of same make and model and if the same is not available then to refund the entire sale price of the mobile set. The opposite parties are also burdened to pay Rs.3,000/- as compensation for harassment and Rs.2,000/- as litigation expenses. Entire compliance to be made within 30 days on receipt of the copy of this order.

9.           Copy of the orders be issued to the parties free of cost and file be consigned to record. Announced in open Forum. The complaint could not be decided within prescribed time due to rush of work.

  ANNOUNCED:                             (Rachna Arora)                   (Rajita Sareen)

 October 22, 2018.                Member                         Presiding Member

 MK