The complainant filed a petition praying to pass orders directing the O.Ps to refund the cost of the Mobile to the complainant and to pay Rs. 30,000/- towards compensation and Rs. 5,000/- towards cost of litigation ect.
The complainant in the petition submitted that he purchased a Micro Max Mobile phone bearing Model No. M-X-295 1 M IMEI No. 911316752316172 and S-IMEI No. 911316752720175 from O.P. No.1 an authorized retailer on dated 15.08.2013 for an amount of Rs.1800/- vide receipt No.39756 dated 15.08.2013 with warranty. After two month of its purchase the complainant found defects in the said mobile and the same was brought to the knowledge of OP No.1 towards the rectification of defects and on his advice the complainant deposited the mobile with the OP nO-1, after 15 days of its deposit the OP nO-1 delivered were rectified. Thereafter, two days of its use the mobile the complainant found same same defects for which the complainant approached the OP no-1 but there was no response from the side of the OP-1 finally he disclosed that the mobile set is suffering from inherent defects and the same could not be rectified. Due to unfair trade practice/deficiency in service by the Opposite Parties the complainant suffered mentally, physically and financially.
On notice the Opposite Party No-1 filed his counter denying his counter denying his liability. Notice sent to the OP No.-2 through Registered post did not receive back un-served and, therefore, delivery presumed and he was proceeded exparte for non appearance.
We are fortified by a decision of the Hon’ble High Court of Jammu & Kashmir in the matter of Fiat India Pvt. Ltd. Versus Dr. Zahid Hussain Gillari and others reported in 2003 CTJ 953 (CP) wherein the Hon’ble High Court held that “it is well settled that where the averments made in the complaint are un-rebutted, the presumption is that the averments are true and correct.”
We come across a decision of the Hon’ble Supreme Court in the matter of Vidya Dhar-versus-Munkif Rao and another reported in 1992(2) Civil Court Cases at page-91 held that “ if a party did not adduce any evidence in rebuttal, then adverse inference should drawn against the party for not rebutting the evidence”.
Taking consideration the undisputed documentary evidence and pleadings, we are inclined to pass order in favour of the complainant, directing the OP No. 2 to refund the cost of the mobile and pay Rs. 5,000/- as compensation and Rs. 1,000/- as cost of the litigation to the complainant within 30 days on receipt of a copy of this order, in default, the Opposite Party is liable to pay Rs. 50/- per day till its realization. Copy of the order be sent to the parties free of cost.
Pronounced in open Court on 31st May, 2014.
