PER DR. (MRS.) MADANJIT KAUR SAHOTA,MEMBER

                Adumbrated in brief, the facts necessary for the disposal of the instant complaint are that Complainant purchased one Spice (M-5252) mobile handset from OP No.1 on 19.10.2009 for Rs.2850, against retail invoice, copy of which is at Annexure C-1. But after two days of its purchase, it stopped working, upon which it was given to OP No.2 for repair, vide job sheet Annexure C-2. It was alleged that OP No. 2 had neither repaired the hand set, nor replaced the same with a defect free mobile handset, due to which the Complainant has been harassed a lot. Hence this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2]             Notice of the complaint was sent to OPs seeking their version of the case. OP No.2 did not turn up despite due service of notice, therefore, they were proceeded against ex-parte. 

3]             OP No.1 in its reply while admitting the factual matrix of the case, pleaded that the mobile handset in question was a new one and it was quite well and good in all respects and there was at all no defect of any type in the said mobile set. It was denied that the said mobile set became defective just only after two days of its purchase. Answering OP was not responsible for any repair or replacement, as the manufacturing company was solely liable for the same. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4]             OP No.3 in their reply admitted the factual matrix of the case. It was pleaded that the Complainant should have taken care of his own interest and requirement at the time of purchasing of the handset. The allegations made by the Complainant does not hold any stand if the handset becomes defective due to mishandling of the same. It was denied that service center refused to repair the handset, as alleged. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4]             Parties led evidence in support of their contentions.

5]             We have heard the Complainant in person, Authorized Representative of OP No.1 and learned counsel for OP No. 3 and have also perused the record.

6]             There is no dispute between the parties about the purchase of the said mobile phone as well the defect occurred in it within a period of about five months of its purchase. The contention of the complainant is that the mobile phone is defective and a number of visits had been made to OPs to replace it with a new one but all in vain. Annexure now marked C-1, shows that the complainant had purchased the mobile set in question on 19.10.2009 vide receipt no. 1288 for amount of Rs.2850/- from OP-1.   Annexure now marked C-2 dated 03.05.2010 is the copy of the service job sheet, in which the OP-2 has acknowledged the receipt of faulty mobile phone from the complainant with a problem of ringer.

7]             Whereas on the other hand the OP-1 and OP-3 contended that the mobile set which was sold to the complainant was free of all defects and if any defect has occurred thereafter, it was only due to the mishandling of the said mobile phone by the complainant itself.  It is pertinent to mention that the OPs neither have placed anything on record to prove that as to what type of mishandling could have been done by the complainant after which the mobile developed a defect of ringer as has been mentioned in Annexure C-2.  Therefore, in the absence of any documentary evidence, the oral assertions/allegation of the OPs cannot be taken into consideration  against the complainant, whereas their own job card Annexure C-2 speaks volumes. 

8]             The OP-2 has not controverted any of the contentions of the complainant, as no body appeared after service of notice and was proceeded against exparte which shows that OP-2 has nothing to say in his defence.

9]             From the above facts it is clear that there was a defect in the mobile set  i.e. “Ringer not working” as is clear from Annexure C-2 and it did not function after few months of its purchase; that too during the warranty period itself but the OPs did not bother to repair it, upto the satisfaction of the complainant.  In our opinion the OPs were bound to repair/replace the defective mobile phone, which in the present case, they have failed to do so and rather the complainant was forced to this unwanted litigation, which could have been avoided, paying due care by the OPs.  The OPs were negligent and deficient in rendering proper service to the complainant and thereby harassing the consumer by not repairing the mobile phone being under warranty period, which surely amounts to deficiency in service because warranty is always given directly by the company, which is fully 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]            Keeping in view the above detailed analysis of the case, in our considered opinion the present complaint has a lot of merit, weight and substance and hence it must succeed.  We, therefore, decide the complaint in favour of the complainant and against the OPs and pass the following directions :-

a.        The OPs shall repair the defective mobile phone in question and supply it to the complainant after making if fully operational upto his full satisfaction.

b.         The OPs shall further pay to the complainant a sum of Rs.5,000/- as compensation for causing him physical harassment, mental agony  and pain alongwith Rs.2,500/- as costs of litigation.

                The aforesaid order be complied with by the OPs within a period of 30 days from the receipt of its certified copy, failing which the OPs would be liable to pay the amount of Rs.5,000/-  alongwith penal interest @12% p.a. from the date of filing of present complaint i.e. 14.06.2010, till the defective mobile is repaired and the compensation is paid, besides paying the cost of litigation of Rs.2500/-.

11]            Needless to mention that if the defect in the said mobile phone cannot be repaired or appears to be of a permanent nature, the OPs are directed to replace the defective mobile phone in question with a new brand mobile phone of the same or similar configuration/model and deliver it to the complainant within the aforesaid period besides payment of the said compensation.

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