For specific redressal to replace the defective set of mobile with a new one or refund of purchase money of Rs.2200/- along with the other prayers present complaint was filed on 26/03/2013 by the present complainant and the case was admitted for further proceedings on 05/04/2013. Fact remains, the complainant took all initiatives for serving the notice upon the O.Ps. and ultimately considering the entire records it appears that notices were duly served upon the O.Ps. what is apparent from postal internet status report as filed by the complainant which is within the record. But anyhow even after receipt of the said notices of this case, the O.Ps.-1 & 2 did not turn up.

As it is evident from the complainant that  he purchased one “Nokia” handset being model no.-Nokia ASHA 200 Duel SIM, IMEI No.-359348044062347 and 359348044062354 of S.H. Mumtazuddin Times (P) Ltd. from O.P.-1 on 02/04/2012 at a sum of Rs.4800/- only in cash with one year warranty. But just after purchase the mobile did not give proper service and several problems were found at the time of using the said mobile set and no doubt in the set for which the complainant reported the matter to the O.P. and they advised to contact the service provider to do the needful result was achieved from them, even the complainant had been to the service center many times for getting redressal but no effect.

So, being harassed and sustaining mental pain and agony and for not getting any service of the essential item the mobile what he purchased for his daily use and for the negative attitude of the O.Ps. and the negligent and deficient manner of service the complainant served legal notice upon the O.P.-2 on 17/01/2013 to settle the legitimate claim of the complainant within 10 (ten) days from the date of receipt of the notice, but they neither settled the dispute nor compensated till today. So, the complainant filed the complaint for redressal.

Truth is that O.Ps.-1 & 2 did not turn up though they got such chance to defend the allegations of the complainant but anyhow, ultimately for their non-appearance before the Ld. Forum to contest, the case is heard ex-parte.

In its W.V. the O.P.-3, Arya Infotech stated that the complainant visited on 21/09/2012 with the problem of her mobile set and after repair the set delivered on 16/10/2012. It is also stated by O.P.-3 that as a service center they have no authority in taking decision of replacement of the set.

Materials are filed by the complainant and relying upon the documents and unchallenged testimony of the complainant we are concluding with findings.

Decision with reasons

On in depth study of the complaint and on comparative evaluation of the material documents as filed by the complainant, it is undisputed fact that the complainant purchased one Nokia handset No.-35934804462347 and 359348044062354 on 02/04/2012 of S. H. Mumtazuddin Times (P) Ltd. at a price of Rs.4800/- in cash with one year warranty. It is proved from the documents dated 21/09/2012 and 24/09/2012 that the said mobile set was deposited for repairs since it was not functioning / working and not being recharged even after plugged with charger and the battery signals always low as a result it could not be used  and turned off while talking. That after charging the charger also the set was not been working properly though it was within the warranty period but O.P.-1 or service center failed to give proper service to restore the handset alive for the purpose of daily use by the customer/present consumer and no doubt there is no challenge on the part of the O.Ps. in respect of the allegations that the said mobile set has not been functioning up to the mark daily and he is not getting proper service even after purchasing such a mobile set which is essentially needed  for him daily.

Considering the above materials on record we are confirmed that this complainant purchased the mobile set from O.P.-1 and he is no doubt a customer under the O.P.-1 and when he is a customer of O.P.-1 invariably a consumer then it is the liability of O.P.-1 to give proper service / relief to the complainant when he sold this present mobile set. Fact remains, there was warranty and he went to the service center who failed to give any service. For that reason service center is not liable but it is liability of the seller to keep watch about the functioning of the mobile within the warranty period because complainant purchased it with good money from O.P.-1 but O.P.-1 did nothing. But a seller has its responsibility / liability to give proper service so that the purchaser customer (consumer) may enjoy the goods as purchased from O.P.-1. So, we are confident that O.P.-1 is the seller of the mobile set and is liable for negligent and deficient manner of service rendered by him to the complainant.

In the particular case only against O.P.-1, the relief can be granted when company is not directly involved to sell the article to the complainant and it is settled principle of law if any shop owner sells any particular goods of any manufacturer of mobile and said shop owner sells it there is the liability of the said shop keeper to give all services to the customer but not the manufacturer or the service center.

Anyhow, the complainant made parties all of them but only relief can be granted to the complainant against O.P.-1 but not against O.Ps.-2 & 3 because the complainant is not the consumer of O.Ps.-2 & 3 but he is a consumer of O.P.-1 who has not given any proper service and fact remains defects has not been removed by O.P.-1 adopting such process so that it may be returned to the complainant with serviceable condition but that had not been done so invariably complainant is entitled to get relief when he has proved his allegation against O.P.-1. So, O.P.-1 is liable to give proper relief to the complainant as per his prayer.

In the result, the complaint succeeds in part.

Hence,

Ordered

That the complaint be and the same is allowed ex-parte against the O.P.-1 with a cost of Rs.1000/- but the same is dismissed against the O.Ps.-2 & 3 without any cost.

O.P.-1 is directed to refund the entire purchase money of Rs.4800/- to the complainant who shall also return the mobile set to the O.P.-1 within one month from the date of this order failing which over the said amount per day penal interest of Rs.25/- shall be assessed till full satisfaction of the decreetal dues. O.P.-1 s also directed to pay compensation of Rs.1000/- to the complainant for causing harassment and mental agony.

If O.P.-1 fails to comply with the order within stipulated period  and as per spirit of this order in that case for each day’s delay punitive damages @ Rs.50/- per diem shall be charged or assessed against O.P.-1 till full satisfaction of the decree and if said amount is collected the amount shall be transmitted to State Consumer Welfare Fund and in this office on proper receipt. Even if the O.P. neglect to comply penal proceeding shall be started u/s-27 of the C. P. Act.

Complainant to send one copy of this Judgement to the O.P.-1at once for compliance.