PER SHRI RAJINDER SINGH GILL, PRESIDING MEMBER

             Succinctly put, the complainant had bought handset from OP-2 on 11.02.2009 for Rs.3200/- with a guarantee of one year, which started giving problem of power off and was landed to service centre of OP-2 for repair on 17.11.2009, wherein it was told that the handset would be replaced by OP-1 within a week or 10 days. Thereafter, he visited OP-1 number of times to collect his handset but he received no response. He was forced to buy another phone from OP-2 for Rs.2600/- on 27.11.2009. A legal notice was sent to the OP on 7.1.2010 for refund of the amount of Rs.3200/- alongwith compensation but all in vain.  Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2.             Notice was served to the OPs. None appeared on behalf of the OP-2.  Accordingly the OP-2 was proceeded ex-parte.

3.             In their written reply OP-1 submitted that the telephone services were covered under telegraph Act and were regulated through Indian Telegraph Act and there was a provision of Arbitration under the said Act. The complainant himself had stated that he bought LG Mobile phone, therefore he was required to take the matter with LG Electronics Ltd. but he had not impleaded LG Electronics as OP. The contract was enforceable between the manufacturer of the goods and the purchaser only. They were only a telecom service provider and not the manufacturer of the mobile sets; therefore, the complainant was not their consumer. Denying all the material allegations of the complainant, the OP-1 pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 

4.             The complainant in person and the Learned Counsel for OP-1 led evidence in support of their contentions.

5.             We have heard the complainant in person and the Learned Counsel for OP-1 and have also perused the record.

6.             The case of the complainant is that he bought handset from OP-2 on 11.02.2009 for Rs.3200/- with a guarantee of one year, which started giving problem of power off and therefore, he brought this fact to the notice of OP-2, on whose directions the said mobile phone was handed to service centre of OP-2 for repair on 17.11.2009, but they did not repair it and rather lingered on the matter on one pretext or the other and gave false assurances that the handset will be replaced by OP-1 within a week or 10 days but nothing positive came out  and therefore, he was forced to buy another phone from OP-2 for Rs.2600/- on 27.11.2009. The complainant in support of his contentions has placed on record the copy of the receipt (now marked as Annexure C-1) which shows that he had paid a sum of Rs.3200/- to OP-2 on 11.02.2009 towards the purchase of the said handset.  Annexure C-6 is the copy of Repair/DoA Assistance Form of the OP-1 which shows that the PCB of the said handset was damaged, the handset was landed for repair to the service centre at Vignesh Services, Chandigarh on 17.11.2009 vide Annexure C-2 for `B` type PCB repair.  Annexure C-3 is the copy of the receipt which shows that the complainant has purchased LG handset from OP-2 on 27.11.2009 for Rs.2600/-. Annexure C-4 is the copy of the legal notice dated 7.01.2010 sent by the complainant to the OPs regarding refund of Rs.3200/- alongwith compensation for mental torture and harassment. Whereas on the other hand the OP-1 contended that the present complaint is not maintainable in this Forum, due to the special provision of arbitration under the telegraph Act and also that in case of any problem the manufacturer should have been approached and they (OP-1) are not responsible for any defect in the mobile.

6.             Since OP-2 has not come forward to contest the complaint of the complainant, as such it was proceeded against ex-parte. It shows that the OP-2 has nothing to say against the contentions of the complainant and was deficient in rendering proper service to the complainant.

7.             The contention of the OP-1 that the present compliant is not maintainable before this Forum because the telephone services were covered under telegraph Act and were regulated through Indian Telegraph Act cannot be accepted as correct because the present complaint is only with regard to the deficiency in service by the OPs in not repairing/replacing  the defective handset and not with respect to any non payment of bills or any other payment, therefore, this Forum has jurisdiction to adjudicate the present case. The next contention of the OP-1 that in case of any problem the manufacturer should have been approached and they (OP-1) are not responsible for any defect in the mobile phone also cannot be accepted as correct because if the defective mobile phone is sold by OP-2, it is the responsibility of OP-2 to get it repaired or replace it, failing which to refund the amount to the purchaser.  The OPs therefore cannot operate in the market only to dupe gullible customers by selling defective items to them or such items which may go defective even on the next day when put to use.  It is for the OPs to claim or not to claim the charges from the manufacturer and it is their personal decision to sell or not to sell the mobile sets of such manufacturers, which do not satisfy the consumers.

8.             We have perused the record very carefully and find that it has been mentioned on Annexure C-2 (the receipt vide which the handset was landed for repairs) that there was a problem of `B` type PCB and the estimated cost of the repair was Rs.2579/-, which clearly shows that was a defect in the handset, which needed repair/replacement but the OPs did not, whereupon the complainant was forced to buy new handset.

9.             The above facts and circumstances of the case placed before us reveal that the OPs were negligent and deficient in rendering proper service to the complainant and thereby harassing the consumer by not repairing/replacing the handset being under warranty period, whereupon he was forced to buy new handset vide Annexure C-3, which surely amounts to deficiency in service because if the handset is in warranty then the OPs are liable to get it repaired or replaced in case of any default within the warranty period but here the OPs have negated the after-sale promise which caused mental and physical harassment to the complainant. Accordingly, we are of the opinion that the complainant has sufficiently proved his case and therefore we hold the OPs deficient in rendering proper service to the complainant.

10.           In view of the above discussion, we are of the opinion that the complaint must succeed and the same is accordingly allowed. The OP-2 is directed to refund Rs.3200/- to the complainant which was paid by him towards the costs of the handset in question vide Annexure C-1 dated 11.02.2009.  The OPs shall jointly pay to the complainant Rs.1100/- as costs of litigation.  The order shall be complied by the OPs within 30 days from the date of receipt of copy of this order failing which they would be liable to pay the same alongwith penal interest @12% p.a. since the date of filing of the present complaint i.e. 28.04.2010, till the order is complied with.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.