This is a complaint filed under Section 12 of the Consumer Protection A ct for an order directing the opposite party to return the BenQ Mobile 56D 86 and to pay a sum of Rs 3500 as damage to the complainant together with a sum of Rs 750/- as cost.<br /> The complainant purchased a BenQ mobile 56D 86 with warranty of 12 months from Nikshan Electronics , Kannur on 4.11.2004 by paying the opposite party Rs 3400/-. Since the set was having a software complaint, the complainant entrusted the same to the opposite party being the authorized service centre of the manufacturer on 24.10.2005. It was delivered back to the complainant on 26.10.2005 stating that the defect was cured. But it showed defects again and entrusted the same with the opposite party again on 28.10.2005. The complainant obtained a receipt bearing no.546387 for entrusting the same to the opposite party. But the opposite party did not return the mobile. Legal notice was issued on 11.11.2005. The opposite party never returned the mobile set nor sent any reply. The complainant could not carry out his normal work due to non availability of his mobile phone. He also lost some of his customers as the parties could not contact him on that mobile. The complainant suffered mental pain and financial loss to the tune of Rs 3500/- because of the deficiency in service on the part of the opposite party.<br /> After the notice to parties, opposite party appeared and filed version. The opposite party denied all the averments. The contention of the opposite party in brief are as follows. The complainant brought his mobile phone for service on 25.10.2005. The set kept for observation and found n o trouble and informed the same to the complainant. The mobile phone is in working condition without any defect. The opposite party wants the Forum to direct the complainant to take back the mobile phone and to dismiss the complaint. Subsequently the opposite party was absent and was declared exparte.<br /> The point to be considered in this complaint is whether there is any deficiency in service on the part of the opposite party and complainant is entitled for any relief as prayed in the complaint. <br /> The evidence consist of chief affidavit of PW1 and Exts.A1 to A3.<br /> Admittedly the complainant entrusted mobile phone with the opposite party for service on 25.10.2005. Ext.A1 is the invoice issued by Nikshan Electronics which proves that the complainant purchased the set for Rs 3500/- on 4.11.04. Ext.A2 is the warranty card which proves that there is 12 months warranty from the date of purchase. Ext.A3 is the receipt for customer’s articles issued by the opposite party on 28.10.2005. Admittedly the set was entrusted with the opposite party within the warranty period. Ext.A2 shows that warranty period expires only on 3.11.2005. The opposite party is liable to repair the set since it is the authorized service centre. The complainant in his chief affidavit supporting the pleading categorically stated that he has issued legal notice to return the set . On perusal of the documents produced by the complainant the lawyer notice could be seen. Though it was not marked, the opposite party has not denied the same in his version. So naturally it can be believed that there was a lawyer noticed to the opposite party. There is no explanation why the notice was not replied by the opposite party. Taking into consideration the entire facts and circumstances , we are of the opinion that there is clear deficiency in service on the part of the opposite party and no doubt the opposite party is liable to return the mobile set in working condition. The complainant is also entitled for cost. But the complainant has not proved the actual loss that he was suffered. So the complainant is not entitled for compensation. The complainant is entitled for Rs 300 as cost of this proceedings.<br /> In the result, the complaint is allowed partly directing the opposite party to return the mobile set in working condition and to pay Rs 300/- as cost within one month from the receipt of this order, failing which the complainant is allowed to execute the order against the opposite party as per the provisions of the Consumer Protection Act.<br /> <br /> Sd/-MEMBER Sd/-MEMBER Sd/-PRESIDENT<br /> <br /> APPENDIX<br /> Exhibits for the complainant<br /> A1. Invoice dt. 4.11.2004 issued by Nikshan Electronocs, Kannur.<br /> A2. Warranty claim registration form issued by Nikshan Electronics, Kannur.<br /> A3. Receipt for customer’s articles. No. 546387 dt. 28.10.2005.<br /> Exhibits for the opposite party- Nil<br /> Witnesses examined on either side – NIL<br /> Forwarded/by order <br /> SENIOR SUPERINTENDENT<br /> <br /> <br />