ORDER

Gulshan Prashar, (Member)

1. Brief facts of the case are that the complainant had purchased Fly Mobile 5X200 IMEI No.353395020320666 for Rs.4250/- from opposite party with one year guarantee. The said mobile phone remained out of order in the month of February, 2010 and he handed over the same to opposite party for its repair on 18.2.2010. He met many times to opposite party about its repair but it was stated by the opposite party that it was other mobile which was already repaired.

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The opposite party called the complainant on telephone that the set has been repaired but when he approached opposite party and checked his mobile phone it was found that the same was out of order and memory card was missing in it. Then the opposite party asked the complainant to go to the Service Centre for its repair as he had no time for it. Hence the present complaint.

2. Notice of the complaint was issued to the opposite party who appeared and filed the written statement. It is alleged in the preliminary objections of written statement that the said mobile contain one year warranty and the said mobile was purchased by the complainant on 19.3.2009. The present complaint has been filed on 19.3.2010 after the expiry of the warranty period. Hence the complaint is not maintainable. Hence the complainant is estopped by his own act and conduct from filing the present complaint. The complaint is bad for non-joinder and mis-joinder of necessary parties. On merits it is pleaded that the opposite party deals in only sale and purchase of mobile and the guarantee is extended by the manufacturer of the said mobile. It is alleged that if the mobile was out of order in the month of February, 2010, then why he kept mum for about 1½ months The complainant has not mentioned that what type of defect was in the mobile. There is no merit in the complaint and the same is liable to be dismissed.

3. The complainant has tender into evidence his own affidavit Ex.PA along with bill Ex.P1 and closed the evidence.

4. The opposite party has tendered into evidence affidavit Ex.RA and conditions of warranty Ex.R1 and closed the evidence.

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5. We have heard learned counsel for opposite party and complainant in person. The counsel for the opposite party has given emphasis that though the mobile was purchased from opposite party but this mobile contains one year warranty and this mobile was purchased by the complainant from the opposite party vide receipt Ex.P1 on 19.3.2009 and present complaint has been filed by the complainant on 19.3.2010 one day after the expiry of warranty. So this complaint is not maintainable. On the other hand, the complainant argues that this Forum has to take into consideration when a defect arose in the mobile set. As per complainant this mobile set was out of order and was not giving proper service in the month of February, 2010 and he handed over this mobile set to the opposite party for repair on 18.2.2010. The counsel for the opposite party argues that the present complaint of the complainant was filed after expiry of warranty period but he has to see whether this mobile set was out of order and was not giving proper service in the month of February, 2010 or at lease within the period of warranty. So we have to see when the present complainant made up his mind to file the present complaint. Ex.PA is a duly sworn affidavit of the complainant. The affidavit of the complainant was sworn on 18.3.2010 by the Oath Commissioner. This clearly shows that mobile set was giving problem to the complainant within warranty period and the complainant approached opposite party many times in the month of February and March and this mobile remained with the opposite party for repair as per affidavit Ex.PA, complainant received a telephone call from opposite party

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on 15.3.2010 that the mobile has been repaired and complainant can take it from the shop of opposite party. The opposite party was duty bound to repair the mobile phone of the complainant to the satisfaction of the complainant. The complainant was successful in proving his case that mobile developed some defects during the warranty period i.e. within 12 months from the date of purchase and this mobile phone was handed over to the to the opposite party for repair and he filed the present complaint.

6. In view of the discussion above, we find that the mobile phone which was sold to the complainant on 19.3.2009 for Rs.4250/- by the opposite party is not giving proper service.

So we direct that the complainant will hand over the mobile set to the opposite party for repair and opposite party can keep this mobile with him for seven days and will hand over the mobile set to the complainant after repair to his satisfaction free of costs. The opposite party is also directed to pay Rs.1000/- to the complainant on account of compensation for mental tension, harassment and also as costs of litigation within one month from the receipt of copy of this order.

Copy of the order be sent to the parties through registered post free of costs. File be consigned to the record room.

Dated: Shashi Narang Gulshan Prashar Paramjit Singh

15.4.2010 Member Member President