1.                     The brief history of the case of the complainant is that he purchased a Micromax mobile handset model A109, IMIE No.911375605122880 & 911375605141203 from OP.2 for Rs.8000/- vide Retail Invoice No.782 dt.09.4.2015 but as major defects noticed in the handset on 05.8.2015 the OP.1 replaced the defective set with a new one.  It is submitted that on 18.7.2016 the complainant again noticed major defects in the said replaced handset and gave the same for repair to OP.1.  The OP.1 repaired the handset by replacing PCB and took Rs.2000/- towards charges but due to further defect in the handset, the same was returned to OP.1 for repair.  It is further submitted that the OP.1 in spite of repeated approach is not paying any heed to return the handset and finally the complainant got issued legal notice to OP.1 through his Advocate but to no replay.  Thus alleging deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the Ops to pay compensation of Rs.50, 000/- to the complainant.

2.                     The OP.1 has entered his appearance through A/R but failed to file any counter in spite of repeated adjournments and thus remained exparte in this proceeding.

3.                     The OP No.2 filed counter denying the allegations of the complainant but admitted about the fact of replacement of Micromax mobile A109 with a new one on 05.08.2015.  It is contended that thereafter the complainant has never approached to him with any complaint.  Thus denying any deficiency in service on its part, the OP prayed to dismiss the case of the complainant.

4.                     The OP No.3 also filed counter denying the allegations of the complainant and contended that none of the parties have at any point of time intimated the OP.3 regarding the allegations made in the complaint petition.  The OP contended that as per complaint, the OP.1 has replaced the defective set with a new one and if this is so the complainant has to produce the handset with accessories besides the original bill of A109 before the Forum in order to know the actual fact of the dispute.  It is further contended that the present dispute does not say about any manufacturing defect and hence there is no cause of action to sue the OP.3.  It is also submitted that no technical expert report has been submitted by the complainant to show that the alleged set is defective.  Thus denying any fault on its part, the OP.3 also prayed to dismiss the case of the complainant.

5.                     The complainant has only filed certain documents in support of his case.  Heard from the A/R for the complainant as well as Ops 2 & 3 and perused the materials available on record.

6.                     In this case purchase of Micromax mobile handset model A109 (Blue) by the complainant from OP No.2 for Rs.7700/- vide Invoice No.784 dt.09.4.2015 is an admitted fact.  As the handset suffered defects, the OP.2 has admittedly replaced the defective handset with a new one on 05.08.2015.  Again as the second handset suffered defects on 18.7.2016, the set was handed over to OP.1, ASC of Micromax for repair.

7.                     The complainant stated that on examination of fault in the handset, the OP.1 issued a bill for Rs.2000/- vide No.1329 dt.18.7.2016 stating that the PCB is to be changed.  The OP.1 has written in the invoice that the warranty is only for 6 months.  No supportive document regarding warranty on the mobile for 6 months is filed.  Generally, one year warranty is given by the manufacturer of mobile handsets.  If the date of replacement sale of the present handset is 05.8.2015, certainly it comes within warranty period of one year on the date of noticing defect on 18.7.2016.  Hence the OP.1 committed wrong in declaring the handset out of warranty and taking Rs.2000/- in the name of repair.

8.                     After repair the complainant noticed that the handset suffered the same problem for which he handed over the set to OP.1 for repair.  The complainant has filed copy of invoice No.1199 dt.20.8.2016 issued by OP.1 stating that the repairs can be made in warranty.  We do not understand how this time the repair falls within warranty period as declared by OP.1.  The OP.1 this time also demanded Rs.2000/- through a bill dt.22.8.2016 within warranty repairs.  The case of the complainant is that the OP.1 in spite of repeated approach did not return the handset with repair.  A legal notice to OP.1 also failed.

9.                     The A/R for OP.3 vehemently submitted before the Forum that the complainant is to be directed to produce the defective handset with accessories for verification.  It is not know as to who will verify the handset.  It is a fact that the handset is with the ASC of the Company and the ASC in spite of approach and legal notice neither replied nor returned the handset to the complainant.  The OP.1 also did not prefer to file counter in this case though entered appearance through his advocate.  The A/R for the OP.1 also promised to produce the defective handset before the Forum but to no avail.  It is pertinent to say that the OP.3 Company has engaged OP.1 as ASC and has total control over the ASC.  In the above premises, we do not feel it proper to direct the OP.1 to produce the handset in question with accessories in order to know the fact of dispute.  Moreover, the fact is very clear in this case and the set is with OP.1 that means with the Company’s ASC.

10.                   Further the A/R for OP.3 is grumbling about expert opinion.  In this context, it can be said that the ASC duly appointed by OP.1 Company is an expert centre in the field of mobile repairing and the said ASC has issued 3 documents as narrated supra from which it was clearly ascertained that the handset of the complainant is suffering series of defects for which it could not be repaired for used.  Lastly the ASC could not repair the set and kept with him till date.  In the above circumstances, it can be safely hold that the handset sold to the complainant is a defective one and the OP.3 being the manufacturing company is to refund Rs.7700/- to the complainant towards cost of the handset with due interest.  As the ASC (OP.1) has not done its duty prudently and kept the handset without taking necessary action in time and thus it has committed deficiency in service.  Further within warranty period, the ASC has charged Rs.2000/- from the complainant.  For such unfair and inaction of the OP.1, the complainant must have suffered serious mental agony and also has come up with this case incurring some expenditure and as such the complainant is entitled for compensation and costs.  Considering the sufferings of the complainant, we feel a sum of Rs.10, 000/- towards compensation and costs in favour of the complainant will meet the ends of justice.

11.                   Hence ordered that the complaint petition is allowed in part and the OP No.1 is directed to pay Rs.10, 000/- towards compensation and costs to the complainant.  The OP.3 is directed to pay Rs.7700/- towards cost of the handset with interest @ 12% p.a. from the date of filing of this case i.e. 06.12.2016 to the complainant and to collect the defective handset from the ASC (OP No.1) at its own convenient.  The above directions are to be complied by the Ops within 30 days from the date of communication of this order.  If the OP.1 does not comply with the order, the awarded amount of Rs.10, 000/- against him shall carry interest @ 12% p.a. from the date of this order till payment.

(to dict.)