Complainant through Adv : MR. A.D. PATEL
Opponent : EX-PARTE
PER :- Hon’ble President, Shri. B. B. YOGI
Place :- Gondia
-: ORDER :-
( Passed on dated 16th Jan, 2019 )
1. The consumer complaint is filed U/s 12 of the Consumer Protection Act, 1986 against the opposite party for selling dead phone /faulty phone, not repaired the phone and also not even returned the same till filing of the complaint.
2. Brief facts of the complaint are as under:
The complainant has purchased one mobile phone of model no. XT 1550 color Black for Rs. 10,039/- on dated 22/04/2016 through online from Amazon site vide order bearing No. ID-403-0676422-2291523. AS per complainant the phone was not working properly from day one and His like dead phone as SIM not working, network problem etc. so the complainant approached to the Opposite Party no. 2 - authorised service centre and handover the phone for repair on dated 28/12/2016 wherein it was remarked as “Re-Repair” with problem (i) dead phone (ii) SIM not working(iii) Network issue”.
3. The complainant has also written letter dated 02/01/2017 wherein it was mentioned that first time it was said by the authorized centre that the problem is due to software which needs to be updated, second time when complainant visited Opposite party No. 2 authorized centre at Nagpur(130 km) it was informed that motherboard required be changed and to be brought from Chennai for which complainant has incurred an expenditure of Rs. 900/- for travelling from Gondia to Nagpur and for many time. Since the mobile phone is not repaired and not even returned, hence the present complaint is filed before this forum for the reliefs as prayed in the complaint.
4. The Opposite Party received the notice issued by this forum but chosen not to remain present; therefore this forum has passed an Ex-parte order on 03/12/2018 as per law. After considering the documents and the arguments of the complainant we are giving our finding with reasons as under:-
FINDING WITH REASONS
5. In view of the Hon’ble Supreme Court Judgments in case of Sangramsinh P. Gaekwad & others V. Shantadevi P. Gaekwad (Dead) through LRs. & others-the effect of an admission in the context of section 58 of the Indian Evidence Act has been considered, wherein it was categorically held that the Judicial admission by themselves can be made the foundations of the rights of the parties and admission in the pleading are admissible Proprio vigore -by its own force against the maker thereof. Order VIII, Rule 5 of CPC says that every allegation of facts in the plaint, if not denied specifically or by necessary implications should be taken to be admitted except as against persons under disability. In the present case the Opposite Party has not filed any written version as required under law. Thus the facts are admitted and not denied specifically are admissible under section 58 of the Indian Evidence Act.
6. We have verified the documents filed by the complainant, from the purchase invoice and the Job card it is clear that the phone was faulty and the Opposite Party no.2 - agent (authorized service centre) has not returned the phone after complete repair. Principal is liable for the acts of the agent.
It may be stated here that the Consumer Protection Act, 1986 is a benevolent legislation, the main object of which is not only to protect the consumers but also to provide them a speedy and simple dispute redressal mechanism, free from hassle. We are bound by the law laid down by the Apex court and statutory provisions hence in absence of any defence and admitted fact from the job card, an act of not returning the phone duly repaired within reasonable time itself is shortcoming in service and amounts to Deficiency in service as defined under the Consumer Protection Act, 1986.
7. In view of findings in Para 05 & 06, we proceed to pass the following order.
ORDER
(1) Consumer complaint is partly allowed.
(2) It is hereby declared that the opponent’s is deficient in rendering service to the complainant.
(3) The opponent’s is directed to refund Rs. 10,039/- along with interest @ 8 % P.A. from 22/04/2016 to the complainant within 30 days from date of receipt of the order.
(4) The opponent’s do pay an amount of Rs.2000/- [Rupees Two Thousand only] to the complainant towards compensation for mental pain and agony.
(5) The opponent’s do pay an amount of Rs.2000/- [Rupees Two Thousand only] towards costs of litigation
(6) Certified copies of this order be furnished to the parties forthwith.
