Complainant Anil 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 return his mobile phone or the consideration Rs.12,000/- be paid to him and also to pay Rs.30,000/- as mental harassment and suffering in his work due to non existing of mobile alongwith Rs.5,000/- as litigation expenses.

2.       The case of the complainant in brief is that he had purchased a mobile set marka GSM Aqua 1.5 dual sim for Rs.12,000/- from the opposite party no.2 on 13.3.2014 and its warrantee period is one year. In the month of December 2014 the mobile set was not functioning properly and he was facing difficulties in calling as it was out of order due to some manufacturing/technical defect in the mobile. He approached the opposite party no.2 and explained his difficulties with the mobile phone who advised him to visit in Service Centre. On the advice of opposite party no.2 he visited the office of the opposite party no.1 and handed over the mobile for its repair on 26.12.2014 as the touch of the phone was not properly functioning due to manufacturing defect. After enquiry the opposite party no.1 kept the mobile phone with him for repair and issued a Job Card/Job Sheet on 26.12.2014. The opposite party no.1 assured him that his mobile phone will be repaired within 2 weeks, but when he visited after two weeks, the opposite party no.1 again requested him to wait for 2 weeks. In the month of February he again approached to the opposite party no.1 and demanded back his mobile but they linger on the matter and till date they have not handed over the mobile inspite of repeated requests and visits. Opposite parties did not returned the said mobile to him even after expiry of three months and he was harassed by the behaviour of opposite parties. They have failed to provide the services as per the terms and conditions and failed to return the mobile after repairing it. Due to the act and conduct of opposite parties it is clear cut case of deficiency in service on the part of the opposite parties. Hence this complaint.

3.       Upon notice, the opposite party no.1 appeared through its counsel and filed the written reply by taking the preliminary objections that the complainant has no cause of action and locus standi to file the present complaint; the complainant has concealed the material facts from this Ld.Forum and as such not entitled for any relief and the complainant is playing fraud with the opposite parties by concealing the material facts. The complainant concealed the material fact that he is in possession of the mobile and is taking undue advantage of the job-sheet which is still in the possession of the complainant. On merits, it was submitted that the complainant visited the opposite party no.1 and was already known to the proprietor of the opposite party. The complainant visited for repair of his handset and told that the touch is not working and he wants to repair it. The opposite party no.1 told that the set is already opened from some other unauthorized person. The complainant requested only the touch screen is faulty. On the request of the complainant, the opposite party no1. received the handset and gave job-sheet to the complainant. Next day the opposite party no.1 gave handset to Engineer for repair, but he told that the handset is dead and front camera is also missing in the handset and this could not repair at our end and will be forwarded to level 3 repair centre at Ludhiana. After 2 or 3 days the complainant visited to opposite party no.1. The opposite party no.1 told him that the front camera is missing and on this complainant told to give him the mobile and he will provide the missing camera from the person who previously opened it. As the complainant was already known to the opposite party no.1 as such he returned the mobile without receiving back the job card as the complainant told that he will come soon back after getting the camera within hour. The opposite party no.1 even made demand of job sheet, but the complainant told that job sheet was at home. After two days the complainant visited the opposite party no.1. and told that he failed to trace the camera and the opposite party no.1 told that it is not possible to repair it without camera as it was to be sent to the repair centre at Ludhiana. On hearing this, the complainant become angry and went out of the shop with mobile and even not returned the job card. After one month the complainant visited to TRC Ludhiana and contacted Mr.Deepak for the same and told Mr.Deepak that service centre denied the repairs. Mr.Deepak called the proprietor of opposite party no.1 and ask the issue. After knowing the issue Mr.Deepak analyzed the handset and returned back to Mr.Anil. Now after 5/6 months complainant filed a false case and alleged that the opposite party no.1 is not returning the mobile, but actually the mobile is already with the complainant. The complainant is misusing the job card and made false story. The present complaint has been filed after a long period of 5/6 months, so there is no fault and deficiency in services on the part of the opposite party no.1. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

4.       Sh.Sandeep Ohri, Adv. had also appeared on behalf of opposite party no.2 but on 28.7.2015 he was stated that he has no instructions from the opposite party no.2. Hence, opposite party no.2 was proceeded against exparte vide order dated 28.7.2015.       

5.     Complainant tendered into evidence his own affidavit Ex.C1 alongwith other documents Ex.C2 & Ex.C3 and closed the evidence. 

6.     Sh.Vinod Kumar Partner of opposite party no.1 tendered into evidence his own affidavit Ex.OP-1, alonwith other documents Ex.OP2 to Ex.OP6 and seeks another adjournment which was not granted and his evidence was closed by order dated 29.9.2015.

7.       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 complainants’ prosecution and the OP’s rebutting defense. We find that the defective Mobile in question was purchased vide Ex.C2 Bill dated 13.03.2014 for Rs.12,000/- from the OP2 vendor whereas it was delivered/handed over vide Ex.C3 Job Card (as Receipt) dated 26.12 2014 (for repairs) to the OP1 workshop with ‘allegation’ that the same has not been delivered back till date, after the requisite repairs. However, the OP1 workshop through its partner’s Affidavit Ex.OP1 has rebutted the complainant’s allegation of ‘non-delivery’ of the repaired Mobile claiming that the same was delivered back to the complainant but in good faith for arranging its ‘missing’ camera and till that time it has been with the complainant himself along with the Job Card i.e., the Mobile Receipt. To support the above rebuttal, the OP1 workshop has produced ‘copies’ Ex.OP2 to Ex.OP6 of the record maintained by it regarding the ‘return’ of the said Mobile but somehow it does not prove or even indicate the ‘return’ of the same to its owner complainant. And, thus the OP1 workshop stands liable to an adverse award under the Act for the proven deficiency in service. Further, we deduce from the non-availability of any evidence on records that the complainant also contributed to the OP’s exhibited ‘indifference’ through non-maintenance of a regular follow up of the defective Mobile delivered to the OP1 for repairs etc.   

8.       In the light of the all above, we find and hold the titled OP1 service centre guilty of ‘deficiency in service’ and thus partly allowing the present complaint, we ORDER them to deliver the ‘repaired’ Mobile Set to the complainant within 30 days of the receipt of the copy of these orders otherwise the OP1 shall have to refund the Mobile Cost of Rs.12,000/- as per the Bill ExC2  along with interest @ 9% PA from the date of expiry of 30 days till actually paid. However, both the parties shall themselves bear their own costs, here.

9.       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)

October 16, 2015                                                                                 Member

*MK*