1.                     The brief history of the case of the complainant is that his brother Santanu Kumari Parida after purchasing a Micromax Canvas HD A- 116i handset bearing IMEI No.91353300157493/91353300397491 through online which is a product of OP No.1 on 25.12.13 for Rs.10, 999/-, handed over the same to the complainant to use the handset with due authorization on 03.1.2014.  The complainant after use of 45 days found that the Touch Panel (TP) of the set is not functioning for which he handed over the set to OP.2 for repair who updated the software and assured that TP will be replaced with a new one after receipt it from the Company.  In the meantime while charging the set the TP was broken and the complainant handed over the set to OP.2 and was advised to come after 15 days.  It is submitted that the OP.2 did not repair the set and took Rs.1700/- towards replacement of TP within warranty period on demand but replaced the TP with an old TP which did not work.  The OP.2 took back the set and kept it in the guise of repair for 8 months and on 18.6.15 the OP.2 requested the complainant to take back the set.  The complainant noticed that the OP.2 is handing over an old assembly set to the complainant which is not the actual set of the complainant to which the complainant did not agree to receive.  On demand the cost of handset, the Ops remained silent.  Thus alleging deficiency in service and defect in goods on the part of the Ops, the complainant has filed this case praying the Forum to direct the Ops to refund Rs.10, 999/- and Rs.1700/- with interest and to pay Rs.55, 000/- towards compensation and costs to the complainant.

2.                     The OP.1 filed counter denying the allegations of the complainant and contended that the complainant is not a consumer and this case is not maintainable.  It is contended that this case is bad for non joinder of necessary parties such as the seller and purchaser of the handset.  It is further contented that the sale of handset to the complainant and repairing as well as receipt of Rs.1700/- by OP.2 for replacement of TP are not within the knowledge of OP.1.  The OP.1 contended that non receipt of TP by OP.2 from the Company is not supported by any document and hence submitted before the Forum to direct the complainant and OP.2 to furnish the original handset for verification.  Thus denying any fault on its part, the OP prayed to dismiss the case of the complainant.

3.                     Similarly, the OP.2 filed counter denying the allegations of the complainant but admitted about receipt of Rs.1700/- from the complainant towards replacement of TP within warranty period as the complainant is other than the purchaser of the set.  The OP submitted that after replacement of TP, preparation of job sheet on 08.4.2015 does not arise and in order to extract money from the OP, the complainant has taken one plea and other.  Thus denying any fault on its part, the OP prayed to dismiss the case of the complainant with cost of Rs.1.00 lac.

4.                     Complainant has filed certain documents in support of his case.  Heard from the complainant as well as A/R for Ops and perused the materials available on record.

5.                     In this case the Ops raised objection that the complainant is not the registered owner of the handset and hence the complainant is not their consumer.  It is found from the money receipt that one Santosh Kumar Parida has purchased the handset but the complainant has filed authorized obtaining from Santosh wherein the complainant is authorized to use the handset.  The complaint also has produced the handset before the OP.2 for repair and his name has been mention in the job sheet.  Further the OP.2 has received Rs.1700/- from the complainant towards repairing charge.  Hence the complainant became the beneficiary user of service of OPs and can be treated as consumer of the Ops.

6.                     Sale of handset to the brother of the complainant on 25.12.2013 is an admitted fact.  The complainant stated that after 45 days of use the TP of the handset did not function and on contact the OP.2 updated the software and assured that the TP will be replaced after obtaining from the Company.  It is the further case of the complainant that after updating of software the set became over heat.  On approach to OP.2 for replacement of TP and solving overheat problem, the OP.2 advised the complainant to come after 15 days but after several approach, the OP did not attended the set.  The complainant also stated that at the time of charging, due to over heat the TP cracked and on being approached the OP.2 agreed to replace the TP on cost paid basis and also has received Rs.1700/- on 26.5.2014 but the work is still pending.

7.                     The OP.1 in his counter stated that he has no knowledge about the sale and repair of the handset as it is not possible to track all those things on its part.  The OP.2 clearly admitted the defect in the set and in spite of complaint he has not replaced the TP and has not solved the overheat problem.  Rather the OP.2 has received Rs.1700/- towards replacement of TP during warranty period.  It is also seen that the complainant has reported the OP.2 as and when he noticed problems in the set.  The OP.2 has also issued Receipt Dt.26.5.2014 mentioning receipt of entire amount for replacement of TP and further indicating that the TP replacement is pending.  Further the job sheet dt.08.4.15 shows that the TP replacement is pending.  From the above facts, it was clearly revealed that the OP.2 in spite of receipt of Rs.1700/- has not replaced the TP.  When the set overheat complaint was placed before OP.2, it was incumbent on its part to attend the complaint immediately and due to non rectification of defect, the TP cracked.   This inaction of OP.2 amounts to deficiency in service.

8.                     The complainant further alleged that after 6 to 8 months when complainant visited OP.2 on call, he found that the handset offered by OP.2 is not the original handset submitted by the complainant for repair and the set offered by OP.2 is an assembled one for which he did not agree to receive the set.  As the OP.2 has received the set along with cost of TP for repair and did not do so being the authorized service Centre of OP.1, it can be easily concluded that the set was suffering manufacturing effect and without repair the OP.2 has played mischief with the complainant.  Therefore, the complainant is suffering at the hands of the Ops.  Hence he is entitled to get refund of the cost of handset from the OP.1 as the set became defective within warranty period and could not be rectified by its ASC.  The OP.2 is to be directed to refund the interest on the cost of the handset and to refund Rs.1700/- with interest from the date of receipt besides compensation and costs to the complainant.  Considering the sufferings of the complainant, we feel a sum of Rs.2000/- towards compensation and costs in favor of the complainant will be just and proper.

9.                     Hence ordered that the complaint petition is allowed in part and the OP.1 is directed to refund Rs.10, 999/- and the OP No.2 is directed to pay interest on Rs.10, 999/- from 25.12.2013 and to refund Rs.1700/- with interest from 26.5.2014 and also to pay Rs.2000/- towards compensation and costs to the complainant within 30 days from the date of communication of this order.  The defective handset is to be collected by OP.1 from OP.2.

(to dict.)