Complainant Major Prashant Singh Thakur has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to replace new mobile handset to him as they failed to provide a suitable service to the handset mobile. Opposite parties be further directed to pay Rs.1,00,000/- as compensation on account of mental agony, harassment and inconvenience suffered by him besides Rs.5,000/- as litigation expenses and any other relief to which he may be found entitled to may also awarded to him, in the interest of justice.

2. The case of the complainant in brief is that he is a respectable officer and working in the Army and is in the service of the country. He purchased one Gionee F-103 Mobile Handset with accessories IMIE No.869060020175281 on 14 Feb, 2016 manufactured by opposite party no.1 from the show room of opposite party no.2. In the month of April the abovesaid mobile handset started having problems with its display resulting in continuous and random flickering of the screen and the matter was immediately reported to opposite party no.2 and as per its advice, the defective mobile was handed over in the authorized service i.e. opposite party no.3 in the month of April/May 2016. The mobile handset was returned back after rectification within two days and the abovesaid handset was put to use during April and May 2016, after functioning correctly for about two months, the mobile handset once again started having the same problem. He immediately reported the matter to opposite party no.2 and the mobile was again forwarded to opposite party no.3. He has further pleaded that on 9 June, 2016 he received the mobile handset from opposite party no.3 for post rectification of the defects which have not yet been confirmed by him. On receipt of the mobile handset from the service centre of opposite party no.3 it was found that there was a visible defect on the right side of the mobile screen near the volume keys in the form of a faded patch in shape of an standing line of size approx.2 inches but the same was not repaired and he had been mentally harassed by the lack of response from opposite parties inspite of repeated e-mail and telephonic conversation and the action of his complaint has not been taken so far. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3. Notice of the complaint was issued to the opposite parties. Opposite party no.2 appeared through its counsel and filed its written reply taking the preliminary objections that the present complaint is not maintainable as the complainant has suppressed material facts from this Hon’ble Forum and is further liable to be dismissed on the sole ground that no cause of action has ever occurred against the opposite party no.2 as the complainant himself has admitted in his pleadings that the opposite party no.2 has only sold the mobile handset, the same was thereafter handed over to the Service Centre i.e. opposite party no.3; the complaint is liable to be dismissed on the sole ground that the opposite party no.2 is only the dealer of the products manufactured by opposite party no.1 under the trade name “GIONEE’ who is only selling the products manufactured by opposite party no.1 and for any defects under Warranty, the Authorized Service Centre is to be contacted for any such purpose and the present complaint has been filed by the complainant is nothing but an abuse of process of law and with an intention to enrich themselves by raising absolutely unjust and untenable claim against the opposite party and therefore, the said complaint deserves to be dismissed on this ground alone. On merits, it was admitted that the complainant is an Army Officer. At the time of the purchase of mobile handset, the complainant has himself introduced him as an Army Officer. It was further admitted that complainant has purchased one Gionee F-103 Mobile Handset from the showroom of the opposite party no.2, manufactured by opposite party no.1 against bill. It was next submitted that the details about the warranty and defect during warranty period were duly explained to the complainant at the time of the selling of the handset and the list of Service Centers is mentioned on the backside of the bill. The opposite party no.2 is not even aware if the complainant has ever handed over the Mobile Handset to opposite party no.3 as the opposite party no.2 is only concerned with the Sale of the Mobile Handset, moreover the company i.e. opposite party no.1 has made the provision for rectifying defects during warranty period by way of establishing the Authorized Service Centers throughout the Country, which details were duly provided at the time of Sale and the complainant himself has given the same for rectifying the defect to the Authorized Service Centre. Actually, the opposite party no.2 is nowhere involved in any transactions other than the selling of the Mobile Handset as such he has been wrongly impleaded as opposite party no.2. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4. Notice issued to the opposite parties no.1 and 3 had been served through registered A.D. but none had come present on their behalf, therefore, they were proceeded against exparte vide order dated 29.3.2017.

5. Complainant tendered into evidence his own affidavit Ex.C-1, alongwith other documents Ex.C2 to Ex.C8 and closed the evidence.

6. Sh.Gurpreet Ghai Prop. Nazakat Telecom opposite party no.2 tendered into evidence affidavit of Ex.OP-2/1, alongwith other documents Ex.OP-2/2 and Ex.OP-2/3 and closed the evidence.

7. We have intently examined all the documents/evidence as produced on the complaint records (as duly put forth by the complainant and the OP2 Vendor) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional absence/optional ex-parte participation by the titled opposite parties 1 Mfr. & 3 Co. Service Centre despite the proven dispatch/service of the summons; of course, in the very back-drop of arguments as put forth by the learned counsels for the present litigants.

8. We find that the complainant had allegedly purchased one OP1 Mfd. Mobile Device Set of Gionee Make F-103 Model from the OP2 vendor vide cash memo (Ex.C2) dated 14.02.2016 for Rs.9,600/- that however fell defective in the month of April’ 2016, itself. Thus, the complainant approached the OP2 vendor who directed him to the OP3 service center who in turn did return it (after due repairs) to the present complainant. However, the said mobile device again turned defective again in May’2016. The OP3 Service Centre again repaired the Mobile Device Set but it was found to be in an apparently damaged physical condition that demanded its replacement for which the opposite parties were not prepared and hence prompted the present complaint.

9. The OP2 vendor has in turn replied that he being simply the seller of goods be not desired to replacement/refund etc and for the purpose the OP1 Manufacturer and the OP3 Service Centre be held liable and responsible. However, we are not convinced with the OP2 vendor’s plea and thus hold him jointly and severally liable to an adverse statutory award under the applicable Act. We find that the complainant’s consumer rights have indeed been determined since the OP 1 & 3 have willingly and intentionally opted-out for ex-parte proceedings and even the participating opposite party vendor did never offer complimentary repairs/ replacement/ refund etc during the entire course of present proceedings knowing well the factum of effective warranty of the defective mobile.

10. However, we shall be at a judicious discretionary liberty to draw an adverse ‘judicial inference’ by virtue of a plethora of superior courts judgments that the ex-parte opposite parties 1 & 3 had no defense to prosecute and thus they instead preferred to go ‘ex-parte’. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/or to cast undue excessive ‘distresses’ to the delinquent(s).

11. In the light of the all above, we find the hue of actionable merit (under the Act) in the present complaint and thus ORDER the titled opposite parties jointly and severally to replace (free of any cost) the damaged/mal-functioning defective Mobile Set (in question) with a new/fresh piece of Mobile with similar specifications to the present complainant besides to pay him Rs.5,000/- as compensation and Rs.3000/- as litigation cost within 30 days of the receipt of these orders otherwise all the opposite parties shall be jointly and severally liable to pay the award amount with interest @ 9% PA from the date of orders till actual payment.

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)

August 25, 2017. Member

*MK*