Complainant Dr.Rajiv Arora through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that necessary directions may kindly be issued to the opposite parties to give new mobile to him and also claimed compensation amounting to Rs.50,000/- for harassment including Rs.30,000/- as litigation expenses.

2. The case of the complainant in brief is that on 07.11.2015 he had purchased a mobile M-IMEI No.911459400190688, Model Aqua Power-II, S-IMEI No.911459400390684 from opposite party No.1 for Rs.6,000/-. It was pleaded that mobile was not working properly after its purchase as the same was defective and camera of mobile was also defective. It was under warranty. Complainant approached the opposite party No.2 for repair of mobile but the Company replaced the said mobile and another Intex Mobile M-IMEI No.911452001372474 S-IMEI No.911452001372484 was given to the complainant. It was pleaded that the second mobile was not working properly and display and Battery of mobile was also defective. On 03.11.2016, complainant approached the opposite party No.2 with the request to remove the defect then opposite party No.2 told the complainant that the warranty period of second mobile has been expired on August 2016 then complainant came to know that second mobile which was replaced with original mobile already used by another person and as such opposite party No.2 cheated the complainant by supplying defective second hand mobile. It was further pleaded that warranty of first mobile M-IMEI No.911459400190688 was till 07.11.2016 and as such complainant was entitled to exchange the mobile with new one in lieu of defect of first mobile which was sold to the complainant by opposite party No.1. It was also pleaded that complainant is B.A.M.S. Doctor by profession who was suffering too much due to the illegal act and conduct of opposite party No.2. It was next pleaded that complainant requested the opposite party No.2 for new mobile but they failed to do so and there was also deficiency in service and malpractice on the part of opposite party No.2, hence this complaint.

3. Notice of the complaint was served upon the opposite parties. Opposite party No.1 appeared through their counsel and filed the written reply stating therein that complainant approached the opposite party and complained regarding defect in the mobile and opposite party advised him to approach the opposite party No.2 for removing the defects and as such complainant approached the opposite party No.2 who replaced the mobile in question. It was admitted that complainant shown the second mobile to opposite party which was also defective and used by another person prior to complainant. In the prayer clause it is prayed that opposite parties No.2 & 3 are liable for manufacturing and other defect and bound to prove service to consumer and they should be penalized according law not the opposite party who is only agent of opposite parties No.2 & 3 to sell the new mobile and as such complaint against the opposite party is without any merit and same may be dismissed, in the interest of justice.

4. Opposite parties No.2 & 3 did not appear and was proceeded against exparte vide order dated 23.12.2016.

5. Complainant had tendered into evidence his own affidavit Ex.C1 along with bill dated 07.11.2015 Ex.C2 and closed his evidence

6. Sh.Jodh Singh Prop. of opposite party No.1 had tendered into evidence his own affidavit Ex.OP-1/1 and closed his evidence.

7. We have intently perused all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsel for the complainant (at the same time) taking the due judicial-notice of the OP1 vendor’s suo-moto absence with effect from 23.02.2017 and the OP2 Manufacturers. & OP3 Service Centre’s intentional ‘ex-parte’ participation, in spite of the ‘proven’ summon-service through the prescribed ‘Registered AD’ post. Although, it has been a settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee(s) litigant(s) have no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte absentees by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the adjudicatory Act.

8. We find that the present dispute/complaint has arisen as a result of the alleged ‘supply’ and subsequent ‘replacement’ of the complainant’s mobile set with an allegedly defective and pre-used mobile set by the OP2 Intex Brand Mobile Service Centre and who finally announced it to be within the ‘un-expired’ warranty period. The complainant has proved his allegations of ‘defectiveness and pre-use’ vide his affidavit Ex.C1 and Invoice/Cash Memo Ex.C2 dated 07.11.2015 for Rs.6,000/- with ‘one year warranty’ of the sold product i.e., the mobile-set, in question.

9. We find that the OP1 vendor submitted its written reply (duly supported by the affidavit Ex.OP1) pleading therein that ‘Repairs, Replacement and Refund’ of the Intex Make Products (sold at his shop) has been the responsibility/liability of the OP2 & the OP3 and as such the present complaint deserves to be dismissed, at least, against its name. We are not prepared to accept this arbitrary plea of the OP1 and hold it jointly, severally and co-extensively liable to an adverse statutory award along with the other opposite parties.

10. We find that the complainant could not enjoy the full benefits of his Intex Mobile Set on account of its ‘defective’ working and its ‘pre-use’ erosion. Thus, we are of the considered opinion that the present complainant has been entitled to the statutory relief under the applicable Act.

11. In the light of all above, we partly allow the present complaint and thus ORDER the titled opposite parties to refund the Mobile Set’s cost in full to the complainant besides to pay him Rs.5,000/- as cost and compensation. The compliance of the present award shall be the joint, several and co-extensive liability of the titled opposite parties and its cost may be borne between themselves as per their mutual settlement (if any) but the exercise shall, by all means be completed/exhausted within 30 days of receipt of the copy of these orders otherwise they shall also be liable to pay accrued interest @ 9% PA from the date of the present orders till actually paid.

12. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

(Naveen Puri)

      President.

ANNOUNCED:                                          (Jagdeep Kaur)

MAY. 08, 2017                                                    Member.

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