Order No.5

Appellant in person is present.  Respondent remains absent as before. The appeal is taken up for ex parte hearing.

It is averred by the Appellant that within a day of purchase of his mobile set, it went astray and although he deposited the defunct mobile set with the Respondent on 30-07-2014, till the date of filing the complaint case before the Ld. District Forum on 18-02-2015, it was not repaired.  Accordingly, he prayed for refund of the price of the mobile set.

It appears from the record that the Appellant purchased the mobile phone on 28-07-2014 and the same was deposited with the Respondent on 30-07-2014. There is nothing on record to show that the mobile phone has been returned to the Appellant duly repaired. 

Notwithstanding the prayer of the Appellant for a new mobile phone or refund of the price of the phone in lieu of it, we are afraid, it is not tenable under the law at this stage given that the inherent manufacturing defect of the mobile handset is not proved beyond all reasonable doubt.  As such, we are of view that the Respondent should be given an opportunity to repair the same.

It appears that the Ld. District Forum vide its impugned Order directed the Respondent to repair the said mobile set and also allowed a cost of Rs. 1,000/- in favour of the Appellant.  Taking into consideration the facts and circumstances of the case, we are of view that over and above the impugned Order, simultaneous order should be passed against the Respondent directing it to refund the price of the mobile handset to the Appellant in case of its failure to repair the mobile handset properly.

The instant appeal is, thus, allowed in part.

Hence,

O R D E R E D

That A/1169/2015 be and the same is allowed ex parte against the Respondent in part.  The impugned Order is modified as under:

“ OP is directed to handover the mobile phone in question duly repaired to the Complainant within 30 days hence or return the price of the mobile handset and also pay a cost of Rs. 1,000/- to the Complainant.  In default, the Complainant would be at liberty execute the order in accordance with law”.