Dated:  22-08-2016

     Manju Bala Sharma , Member

1. In brief , the facts relevant for the decision of this complaint filed on 28.11.2014 by the complainant are that in the month of October, 2013, OP allured the complainant stating that he will provide him a brand new smart phone Samsung Galaxy SIII on a very reasonable rate. On 6-10-2013, the complainant purchased the said   mobile   phone on payment of Rs 4500/- in the presence of his daughter Vaishnavi and Sh. Sanjeev , friend of the complainant without the bill of the said mobile. It is further stated that on asking for the bill , the OP told that the same will be provided after some time and assured that if any problem occur in the said mobile he will cure the same. The mobile phone started troubling like the sound of mobile was very low and not clear or battery of mobile phone was discharging early.  The complainant immediately contacted the OP and on checking the mobile OP kept the battery of the mobile phone with him and asked the complainant to come after three days.  The complainant visited the shop of the OP thrice but OP ask him to come again next week.  In the second week of November , 2013, the complainant again visited the shop of the OP who provided the same battery to the  complainant by saying that he changed the cell of the said battery.  On assurance of OP , the complainant used the said battery in his  mobile phone after charging the same and tried to switch on his mobile phone but the mobile phone was immediately switched off  and the same was not switched on thereafter.  The complainant again visited the OP and asked him to change the mobile which the OP refused.  The complainant on 16-12-2013 wrote a letter to the OP requesting him to change the said mobile but OP again refused.   The complainant sent a reminder of the letter on 10-03-2014 but all in vain. Pleading deficiency in service and  unfair trade practice on the part of OP , the complainant prayed that the OP be directed to replace the defective mobile or in alternate to pay a sum of Rs. 4500/- to the complainant and compensation of  Rs. 50,000/- on account of mental torture, pain and agony and Rs. 11,000/- as cost of litigation.
2. Notice was issued to OP. The OP filed its reply stating that the mobile phone has not been purchased by the complainant from the OP and he only purchased the old battery after paying a sum of Rs. 100/- only.  The complainant visited  the shop of the OP and told that the  battery is not working and the OP gave another battery to him.  It is further stated that the complainant again come to the shop of the OP and asked him to get his mobile rectified/ repair to which the OP showed his inability.  The  complainant got annoyed on refusal of OP to get his phone checked up from somewhere and threatened him that he will see him in the court.
3.   Replication to the reply has been filed by the complainant reiterating the facts stated in the complaint and denied the allegations in the reply.
4. Affidavit of evidence has been filed by both the parties.  The complainant has filed copy of the cover of the mobile packing as Ex CW 1/1 , visiting card of OP as Ex CW1/2, letter  dated 16-12-2013  as Ex CW1/3  ,  reminder dated 10-3-2014 as EX CW1/4, legal notice dated 29-9-2014 as Ex CW1/5 and its speed post  receipt as Ex CW1/6 in support of his case.  OP filed copy of the packing box of the Samsung Galaxy SIII as Ex RW1/2 and the price of the Samsung  Galaxy SIII as Ex RW1/1 in support of his case and stated in his affidavit that the complainant has not purchased the mobile from his shop. However he used to  came to his shop for recharging.  OP stated that at present the amount  of Samsung Galaxy S3 is Rs. 24,673/-and the copy of the cover of the phone placed by the complainant  is wrong.
5. We have heard the learned counsel for the complainant and OP in person and gone through the record.
6. In the present case, the complainant has purchased the mobile by making the payment of Rs. 4500/- the cost of which is Rs 24,673/- as claimed by the OP in its affidavit. The complainant has stated that Ms Vaishnavi, the daughter of the complainant and Sh. Sanjeev friend of the complainant accompanied   the complainant at the time of purchase of the  mobile in question from the OP. The complainant has not filed the affidavit of any of  these persons which may prove that the complainant has purchased the mobile from the OP and OP has not issued the bill of the mobile to  the complainant.
7.  From the foregoing discussions, we are of the view that the complainant has failed to prove on record that he has purchased the mobile from the OP.  Hence, the complaint has no merit and is dismissed with no order as to cost.
8. Copy of the order be made available to the parties free of cost as per law.  File be   consigned to record room. 

Announced on this ……………..