Deficiency in service is established when there is a fault or inadequacy in the performance of a contractual obligation. Failure to return a device after accepting payment constitutes such deficiency, and a party's failure to prove non-association with the service provider justifies joint liability.

CORAM:

HON’BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)

HON’BLE MS. BIMLA KUMARI, MEMBER (FEMALE)

Present: Ms. Lakshmi Kailasan, Counsel for the Appellant.

Mr. Mayank Gupta, Counsel for the Respondent.

PER: HON’BLE JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT

JUDGMENT

1. The facts of the case, as per the District Commission record, are:

“Sh. Madan Mohan Sharma above named complainant filed present complaint under Section 12 of the Consumer Protection Act, 1986. Briefly the facts as stated by the complainant are that his iphone 5S mobile handset developed some default. Thereafter, he approached Just Dial for providing references and address of some mobile repairing shops and it sent seven numbers of mobile repairing shops through telephonic message. Thereafter, OP offered their services for repair of the handset. The complainant visited workshop of OP and gave four mobile phones and out of which three mobile phones were repaired after three hours and paid Rs. 1200/- for three repaired handset but fourth iphone 5S mobile handset was not repaired on pretext that small IC needs to be replaced which is not available and it would take two days and assured by engineer Mr. Aman that after repairs mobile would be delivered at the complainant premises. Mr. Aman took a sum of Rs. 400/- as repair charges in advance. It is alleged that the complainant contacted Mr. Aman after four/five days telephonically but no satisfactory reply was given. It was told that IC was not available and in same breath informed that the phone was ready and would be delivered soon but the assurance of OP were to no effect. Thereafter the complainant lodged the complaint on Just Dial who fixed telephonic conference whereby the OP’s representative assured to repair the handset and shall deliver to the complainant next day and assured that the warranty period shall be extended for 6 months. It is asserted that the OP failed and handset is still in the possession of OP. The complainant approached several times but to no effect. Thereafter, the complainant wrote a letter on 26.06.2017 to OP and to compensate and pay cost of mobile handset. Hence, the present complaint for directions to OP to refund a sum of Rs. 35,000/- cost of mobile handset, a sum of Rs. 60,000/- for mental, agony, physical harassment and litigation expenses and a sum of Rs. 400/- advance service charges paid to OP. When the notice of the complainant was sent to OP none put in appearance on behalf of the OP and was proceeded ex parte vide order dated 29.05.2018. When the complainant was asked to lead evidence be filed affidavit of evidence testifying the contents of complaint on oath and also relied on Annexure-A, Annexure-B, Annexure- C and a letter dated 26.06.2017.”

2. The District Commission, after taking into consideration the material available on record, passed the order dated 02.02.2019, whereby it held as under:

“We have heard arguments of complainant and have gone through the material on record thoroughly and carefully. From the perusal of the documents, it reveals that the complainant is able to establish his case corroborating with documents on record. Moreover, the affidavit of the complainant remains unrebutted and unchallenged as OP chose not to appear in this matter. We have no reason to disbelieve the version of the com