Sri Subhra Sankar Bhatta, Judicial Member

Ld. Counsel for the Appellant Amrita Sharma is present.

Today is fixed for passing ex parte judgment and order.

The appeal is taken up for delivery of ex parte judgment and order.

Considered the elaborate submission advanced by the Ld. Counsel for the Appellant.

Seen the brief notes of argument and other materials available on record including the impugned judgment and order of the Ld. District Consumer Disputes Redressal Forum, Kolkata Unit—III (South) passed on 15^th November, 2016 in connection with Consumer Complaint Case no. CC/101/2016.

Amrita Sharma, the Complainant as Appellant has preferred the present appeal against the Respondents under Section 15 of the Consumer Protection Act, 1986 assailing the impugned judgment and order passed by the District Commission on 15^th November, 2016 in complaint case no. CC/101/2016 whereby Ld. District Commission was pleased to allow the complaint case in part and also directed the OPs to refund the price of the mobile phone which Complainant paid within two months of this order on return of the mobile phone to the OPs.

Being aggrieved by and dissatisfied with the above judgment and order of the District Commission the Appellant has preferred the present appeal on various grounds as highlighted in the memorandum of appeal. It has been contended that the impugned order of the Ld. District Commission is misconceived, erroneous and contrary to law; that the Ld. Commission below totally failed to exercise its jurisdiction vested on it by law; that the Ld. Commission below failed to appreciate the actual facts and circumstances of the case; that the Ld. Commission below ought to have considered that the Appellant had categorically mentioned in the body of the complaint petition about the deposit of the mobile phone in question to Respondent No. 2 viz. Current Technology Retail (India) Limited for Repairing; that the Ld. Commission below failed to appreciate that the husband of the Appellant visited the office of Respondent no. 2 in order to collect the mobile phone after repairing but the husband of the Complainant did not receipt the same due to existence of the defects; that the Ld. District Commission erroneously directed the Appellant/Complainant to return the mobile phone to the Respondents for getting refund of the price for the said phone; that the Ld. Commission below ought to have awarded compensation in favour of the Appellant/Complainant for the harassment faced by her since the first day of its purchase; that the Ld. Commission below ought to have considered the admitted defect of the mobile phone since purchase. On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned judgment and order.

It is crystal clear from the order sheet that both Respondent Nos. 1 and 2 entered appearance on 20^th September, 2017. Notice of appeal was duly served upon Respondent no. 3 through paper publication. Subsequently, Respondents were found absent on 13^th April, 2022 vide order no. 15 and they were directed to file show cause as to why the present appeal shall not be heard ex parte against them. Despite such order the Respondents did not turn up on 4^th July, 2022 and consequently the present appeal was proceeded ex parte against the Respondents.

During the course of hearing argument Ld. Counsel appearing for the Appellant/Complainant has drawn our attention to the order dated 4^th July, 2022 vide order no. 17and vehemently urged that the appeal being no. A/243/2017 filed at the behest of the Respondent/OP was dismissed for default. Ld. Counsel has also drawn our attention to the impugned judgment and order dated 15^th November, 2016 and vehemently argued that the operating part of the impugned judgment was erroneous and cannot be executed in any manner. Ld. Counsel has further drawn our attention to the petition of complaint specially paragraphs no. e, g, h and vehemently argued that it is an undisputed fact that the mobile in question was already deposited to the Respondents/OPs by the Appellant/Complainant for necessary repair but till date the Appellant/Complainant did not get return of the same as the defects are still persisting. It has been candidly argued that the Ld. Commission below did not consider the fact that the defects were there in the mobile phone in question from the very date of its purchase and the same is still existing. Ld. Commission below failed to consider the prolonged harassment faced by the Appellant/Complainant. No order of compensation was awarded by the Ld. District Commission.

Admittedly, the Appellant/Complainant had purchased an Apple i-Phone—6 from the shop of OP No. 3 on 08.02.2025 making payment of a total sum of Rs. 62,399/- by using credit card and cash. It is the specific allegation of the Appellant/Complainant that the said Apple i-Phone 6 never worked properly from the very inception of purchase. It has been alleged that the husband of the Appellant went to the shop of the OP No. 3 with the defective mobile set for removal of the problem. OP No. 3 reloaded ios software in the said mobile phone and handed over the same to the husband of the Appellant/Complainant. On returning back from the shop of the OP No. 3 the said mobile set again became hanged and was not working at all. On the next morning i.e. on 10.02.2015 the Appellant/Complainant again sent his husband with the said defective mobile set to the shop of OP No. 3 for removal of such defect but the OPs flatly refused to take any liability in this regard. On the said date the representative of the Appellant/Complainant went to the office of OP No. 2 and handed over the mobile set for proper diagnosis of the problem. Subsequently, the representative of the Appellant/Complainant visited the office of the OP No. 2 for getting the mobile set after removal of problems. It has been clearly stated in the petition of complaint that the said mobile set is still lying the custody of OP No.2, the authorised service centre of OP No. 1. Thus being the position it can be safely concluded that the mobile set in question is still lying under the custody of OP No. 2 (authorised service centre of OP No. 1).  In the operating part of the impugned judgment and order Ld. Commission below wrongly held and directed the Complainant to return the mobile phone to the OPs and OPs were directed to refund the price of the mobile phone on getting refund of the same. Such observation is absolutely wrong and cannot stand in the eye of law.

Undoubtedly, the mobile set in question was found defective since its purchase from the shop of the OP No. 3. There is no doubt that the Appellant/Complainant has faced harassment and trouble due to such defective mobile set. Considering such aspect we have no hesitation to conclude that the Appellant/Complainant is certainly entitled to get compensation for such harassment and trouble faced by her since purchased of the mobile set. Thus, we find irregularity and illegality in passing the impugned judgment and order. The impugned judgment and order deserve interference of this Appellate Commission.

Resultantly, the present appeal succeeds.

It is, therefore,

O R D E R E D

That the present appeal being no. A/604/2017 be and the same is allowed ex parte but considering the circumstances without any order as to costs.

The impugned judgment and order dated 15^th November, 2016 passed by the Ld. Consumer Disputes Redressal Commission, Kolkata Unit—III (South) in connection with consumer complaint case no. CC/101/2016 are hereby set aside.

The Respondents are directed to refund the price of the mobile phone (Apple i-phone 6) within one month hereof failing which interest @ 9% p.a. will be accrued on the base price of the mobile set.

The Respondents are further directed to pay a sum of Rs. 35,000/- (thirty five thousand) as compensation within one month hereof failing which the Appellant is entitled to take the recourse of law.

Let a copy of this judgment and order be transmitted to the Ld. District Commission forthwith for information and taking necessary action.

Let a copy of this judgment and order be handed over or sent to the concerned parties free of costs.

Thus, the Appeal stands disposed of.

Note accordingly.