Kulwinder Singh complainant has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite parties praying that opposite parties be directed to replace the mobile in question with new one or pay Rs.15,500/- mobile price along with interest. Complainant has further prayed that opposite parties be directed to pay Rs.50,000/- as mental pain, agony and harassment including Rs.10,000/- as litigation expenses, in  the interest of justice.

2.       The case of the complainants in brief is that he had purchased a mobile mark ‘HTC Desire 728 G white colour, IMEI No.351879075977050’ from the opposite party No.1 for consideration of Rs.15,500/- on 04.01.2016 and opposite party gave warranty on the said mobile set for a one year from its purchase and as such he is consumer of the opposite parties. It was pleaded that after few days from the receiving of the mobile in question the same was not working properly when complainant made call then phone automatically got switched off and valuable data was also lost. Complainant approached to opposite party No.1 and requested them to solve the problem of mobile but they advised the complainant that the mobile will be repaired by HTC care centre. It was further pleaded that on 21.07.2016 complainant went to care centre HTC and handed over the said mobile within warranty period and after uploading the software they returned the mobile to the complainant but the defect in the phone was continuously arose and complainant again went to care centre who changed the mother board of the mobile and returned the same to the complainant but problem in mobile was not removed. The complainant again approached the opposite party No.1 and made request regarding the said problem of mobile and also requested that if problem cannot be  solved in that event replace the mobile with new one but they refused the complainant from repairing the mobile in question and not accepted the genuine requests of the complainant. It was also pleaded that complainant many times requested the opposite parties personally and through E-mail but the opposite parties did not pay any heed to the genuine requests of the complainant and lastly flatly refused to accept the genuine claim of the complainant which was clear cut deficiency in services and trade practice on the part of the opposite parties, hence this complaint.

3.           Notice of the complaint was issued to opposite parties. Opposite party no.1 had appeared through Sh.D.P.Gosain and Sh.Varun Gosain, Advocates but they failed to appear for filing of reply on behalf of opposite party No.1 and opposite party No.1 was proceeded against exparte vide order dated 17.01.2017. Opposite party No.2 also did not appear inspite the service through publication and was proceeded against exparte vide order dated 05.07.2017.       

4.      Counsel for the complainant had tendered into evidence affidavit of complainant Ex.C1 along with documents Ex.C2 to Ex.C5 and closed the evidence on behalf of complainant.

5.       We have carefully examined all the documents/evidence as available on the complaint records (as duly put forth by the complainant) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional absence/optional ex-parte proceedings by the titled opposite parties despite the proven service/publication of summons; of course, in the very back-drop of arguments as put forth by the learned counsel for the complainant.

6.       We find that the complainant had on record purchased (affidavit Ex.C1) one HTC Mark Desire 728G Mobile from the OP1 Vendor vide Invoice #1353 (Ex.C2) dated 04.01.2016 for Rs.15,500/- that however fell defective and mal-functioned within a few days of its purchase. Upon approach, the OP1 vendor directed him to the OP2 HTC Care Centre (for service and repairs etc) who did re-upload it with its appropriate software and returned it to the complainant as having finely repaired it to its good/optimum working order. Somehow, the repaired mobile device did not work well and continued with its defective/malfunctioning performance. Upon contact again, the OP2 HTC Care Center, this time, changed its mother-board but even that did not work/assist either and the mobile device stayed infested with its original defects/sours and finally the titled opposite parties verbally and vocally expressed their helplessness/inability to provide any further assistance and thus prompted the present complaint.        

7.       We find that the complainant’s consumer rights have indeed been determined since the OP1 vendor has intentionally opted for ex-parte proceedings after appearing once (before the forum) through his counsel whereas the other OP2 HTC Care Centre preferred ex-parte proceedings to participation right from the beginning and thus going by the old accepted norms it can be judicially presumed that the titled opposite parties never had any defense to plead in their support.

8.       No doubt, 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 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 parties.            

9.       In the light of the all above, we find the hue of actionable merit (under the Act) in the present complaint and partly allow the complaint and thus ORDER the titled opposite parties (vendor & HTC Care Centre) to refund the price of the mal-functioning defective Mobile Set (in question)  to the present complainant besides to pay him Rs.3,000/- as cost and compensation within 30 days of the receipt of these orders otherwise both the opposite parties shall be jointly and severally liable to refund the full purchase price of the Mobile Device Set (in question) with interest @ 9% PA from the date of purchase till actual payment alongwith cost awarded.   

10.     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)

SEPT. 15, 2017.                                                                        Member               

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