The main legal point established is that the warranty period and the condition of the mobile set are crucial factors in determining the appropriate relief under the Consumer Protection Act.

ORDER :

1. Appellant has preferred this appeal against the order dated 31.08.2015, of learned District Consumer Disputes Redressal Forum, Shimla, whereby it (the appellant) has been directed to return the mobile set of the respondent after due repair, within 45 days, failing which to pay a sum of Rs. 14,000/-, with interest at the rate of 9%, per annum, on account of value of the mobile set and also to pay a sum of Rs. 5,000/-, on account of compensation for harassment and another sum of Rs. 2,000/-, as litigation expenses.

2. Respondent No.1 filed a complaint, under Section 12 of the Consumer Protection Act, 1986, against the appellant and respondent No.2, alleging that he had purchased a mobile set, manufactured by respondent No.2 from the appellant for a sum of Rs. 20,800/-, on 28.11.2009 and that on 04.11.2011, when the mobile phone went out of order, he handed it over to the appellant for repair, vide job-sheet No.1321. He alleged that despite his having visited the appellant's workplace repeatedly, mobile set had not been returned to him, after due repair. On these allegations, he filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking a direction to the appellant and respondent No.2, to repair the mobile phone free of charges or to refund its price and also, to pay compensation and litigation expenses.

3. Appellant and respondent No.2 were issued notices, which were duly served upon them. However, they did not put in appearance. Appellant appeared through counsel only on the date, on which the matter was listed for final hearing, after the respondent No.1 had adduced ex-parte evidence.

4. Learned District Forum has allowed the complaint and directed the appellant, as aforesaid.

5. We have heard learned counsel for the parties and gone through the record.

6. It is not the case of respondent No.1 that the phone was still within warranty period, when it developed a snag. He visited the appellant's premises on 04.11.2011, or say about two years after the purchase of the mobile set with the complaint that the same had not been working. The phone, on inspection, was found to be dead and tampered, as per Annexure C-2, service job sheet produced by the respondent No.1, himself. Now when the phone was dead and had been found tampered and also, it is not the respondent No.1's case that the phone at the time, when it was delivered to the appellant was within the warranty period, learned District Forum was not justified, in directing the appellant to return the mobile, after due repair, or to pay a sum of Rs. 14,000/-, on account of the cost of the phone. Warranty period having already expired (we have assumed so for the reasons that the respondent No.1 did not state that the warranty period was still available and also, it having specifically been mentioned in the job card that the phone was out of warranty), there was no question of respondent No.1 seeking the relief that the mobile set be repaired without charging anything or it should be replaced or its price be refunded. However, in view of the fact that the defective mobile phone had been handed over to the appellant, only this much direction could have been issued to the appellant that the phone be returned, without carrying out any repair and in case, respondent No.1 wanted the repair to be carried out, the same be carried out, on the payment of repair charges by the respondent.

7. In view of the above stated position, appeal is accepted and the order of the learned District Forum is modified and it is directed that the appellant shall return the phone of respondent No.1, without carrying out repair, within 15 days, from the date of receipt of copy of this order and in case, respondent No.1 pays repair charges, mobile set will be returned, after carrying out repair.

8. A copy of this order be sent to each of the parties, free of cost, as per Rules.