SRI. SAJEESH.K.P    : MEMBER

The complainant has filed this complaint U/s 35 of Consumer Protection Act 2019, seeking direction opposite parties to replace the mobile handset or return the amount of Rs.3898/- and an amount of Rs.1,00,000/- as compensation to complainant.

Complaint in brief

            On 28/01/2020, complainant watched an advertisement in the channel of opposite party about mobile phone worth Rs.3,898/- including tax and postage charges.  Moreover, OP No.1 offered an earphone and mobile handset charger with free of cost.  Believing the offer, complainant left a missed call in the number provided by OP No.1 and manager of OP No.1 contacted complainant and assured that the mobile is in a good condition with one year warranty and promised to replace the product on any complaint occurred during the warranty period.  Hence, complainant ordered the mobile phone and on 30/01/2020 he received a smart phone handset by paying Rs.3898/- to the postman.  After                 , the earphone along with charger found not working.  After that complainant inserted SIM card and switched mobile phone and he noticed several lines on the screen of the mobile phone and the screen guard of the handset was damaged.  After noticing the said defects, complainant contacted with the mobile number of OP several times but not steps were taken by OP to rectify the defect the replace the mobile even after repeated demands.  Hence, this complaint.

            After filing the complaint, commission issued notice to both OPs.  Both OPs notice returned as ‘addressee left’.  It is presumed as served.  Both OPs not appeared before the commission and not filed any version.  The commission had to hold that the OPs have no version as such this case came to be proceed against the OPs are set ex-parte.          

            Even though the OPs have remained ex-parte, it is for the complainant to establish the allegations made by him against the OPs.  Hence the complainant was called upon to produce evidence in the form of affidavit and documents.  Accordingly the complainant has chosen to produce his affidavit along with 6 documents as marked as Ext.A1 to A6 and along with the alleged mobile phone and marked as MO1.  The complainant was examined as Pw1.  So the OPs are remain absent in this case.  At the end the commission heard the case on merit.

            On the perusal of document and MO1 produced by complainant, the commission come across Ext.A2, the proof of delivery from OP No.1, even though the specification of article is not mentioned or it, it is clear that an article is delivered to complainant.  The OPs are given fair chance to appear but remained ex-parte.  The Ext.A1 and Ext.A3 shows that complainant made repeated demands to get the defect cleared.  Ext.A5 and A6 shows that complainant had the knowledge of the complaint raised by complainant.  Moreover, complainant produced MO1 before the commission and perused MO1 and seen the defects as mentioned by complainant in the complaint.  To conclude, the commission held that complainant took earnest effort to rectify the defect of the phone he purchased from OPs, proved from the Exts. and hence there is deficiency in service from the side of OPs.  So the OPs are directly to redress the grievance caused to the complainant.  Therefore, we hold that the OPs 1 and 2 are jointly and severally liable to replace the mobile handset or to pay the value of mobile phone Rs.3,898/-  and along with compensation of Rs.2,000/- and Rs.1,000/- as litigation cost to complainant.

            In the result the complaint is allowed in part,  directing the opposite parties 1 and 2 are jointly and severally to replace the mobile handset or to pay the value of mobile phone Rs.3898/- to the complainant along with Rs.2000/- as compensation Rs.1,000/- as litigation cost within 30days of receipt of the order, failing which the complainant shall be at liberty to execute the order as per  the provisions of complainant act 2019.  After compliance the said proceedings opposite parties 1 and 2 are at liberty to take back the MO1 before the commission.

Exts.

A1- Notice sent by complainant to OP NO.1 dated 09/02/2020

A2- Proof of delivery

A3-Lawyer notice

A4- Receipt

A6-Acknowledgment Card

A7-Acknowledgment Card

MO1-Mobile phone

Pw1-Complainant

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar