Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 150.
Instituted on : 10.03.2016.
Decided on : 12.09.2016.
Ravinder s/o Sh. Ramesh R/o village-Lakhan Majra, Distt. Rohtak Ph.No.9729372587 Age 24 years.
………..Complainant.
Vs.
- Shree Durga Mobile Shop, Main Bus Stand, Gohana Road, Lakhan Majra, Distt. Rohtak through its Proprietor.
- M/s Mobile Solution, Civil Hospital Road, Opp. Godara Medical Hall, 1st Floor, Rothak through its Proprietor.
- Intex Technologies(P) Ltd. D-18/2, Okhla Industrial Area, Phase-II, New Delhi-110020 through its Managing Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.Sumit Siwach, Advocate for the complainant.
Opposite parties already exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a Mobile phone Intex Aqua bearing IMEI No.911423153015732 for a sum of Rs.4200/- vide bill No.226 dated 26.04.2015 having one year warranty. It is averred that just after few months of the purchase of above said mobile it started creating problem e.g. software and hanging problem, due to which the complainant could not use the said mobile phone. It is averred that complainant contacted with the opposite party no.1 on 06.10.2015 and the said phone was got repaired by the opposite party no.2. But just after few days it again started creating problems and was repaired on 4.11.2015 and 09.11.2015. It is averred that the defect of the phone was not removed properly and its sim slot was damaged by the opposite party no.2 and returned in defective condition. On 14.12.2015 complainant requested the opposite party no.2 to replace the mobile set but they refused to either repair or replace the mobile phone of the complainant. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed either to repair the mobile phone or to refund the price of mobile set alongwith interest, compensation and litigation expenses to the complainant.
2. Notice of the present complaint was sent to the opposite parties. But none appeared on behalf of opposite parties despite service through process-server and registered post and as such opposite party no.1 to 3 were proceeded against exparte vide order dated 08.07.2016 of this Forum.
3. Ld. counsel for the complainant led evidence in support of his case and has tendered affidavit Ex.CW1/A, documents Annexure C1 to Annexure C3 and has closed his evidence.
4. We have heard ld. counsel for the complainant and have gone through the material aspects of the case very carefully.
5. There is no rebuttal to the evidence that as per invoice Annexure C1 dated 26.04.2015 the complainant had purchased the mobile set for a sum of Rs.4200/- from the opposite party no.1. It is also not disputed that the alleged handset was defective and as per job sheet issued by opposite party no.2 placed on record as Annexure C2 dated 09.11.2015 there was problem of “Auto off, insert sim and the sim slot damaged” and the mobile set was within warranty period.
6. After going through the file and hearing the parties it is observed that the mobile in question was purchased by the complainant on 26.04.2015 and the defect in the mobile set appeared during the warranty period. As per complaint, affidavit and documents placed on record, the mobile set could not be repaired/replaced by the opposite parties during the warranty period despite repeated requests of the complainant. It is also on record that opposite parties did not appear despite service and as such it is presumed that opposite parties have nothing to say in the matter and all the allegations leveled by the complainant against the opposite parties regarding defect in the mobile set stands proved. In this regard reliance has been placed upon the law cited in III(2008)CPJ 98 titled Pahnawa Boutique & Anr. Vs. Shaifi Verma whereby Hon’ble Haryana State Commission, Panchkula has held that: “Complaint fully supported by affidavit-No basis to reject complainant’s version-O.P.failed to contest proceedings despite notice-Order of Forum allowing the exparte complaint upheld”, as per 1998(3)CCC 65(P & H) Hon’ble Punjab & Haryana High Court in Sardari Lal Vs. Kartar Singh & Ors. has held that: Non-appearance of a party as a witness in the suit-Gives rise to a strong presumption against him” and as per 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that it is a fit case where the refund of price is justified. As per statement dated 05.09.2016 made by ld. counsel for the complainant, the mobile set in question is in the possession of complainant.
7. In view of the facts and circumstances of the case, it is observed that complainant will hand over the mobile in question to the opposite parties and in turn opposite party No.3 i.e. manufacturer shall refund the price of mobile set i.e Rs.4200/-(Rupees four thousand two hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 10.03.2016 till its realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of order. Complaint is allowed accordingly.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
12.09.2016.
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Joginder Kumar Jakhar, President
……………………………..
Komal Khanna, Member
…………………………….
Ved Pal, Member.
