JUDGMENT

1. This Complaint is presented by the complainant named above alleging manufacturing defect in the product /mobile hand-set purchased from the OP  and further he has alleged unfair trade practice & deficiency in rendering  service on the part of OPs for their   failure  to repair the defect arose during the period of warranty .
2. The complainant has prayed  for the following relief:-

1. To hold  the OP liable for unfair trade practice and deficiency of services,
2. The Opposite party may be directed to refund the sale price of Rs.14,999/- of the product  with interest,
3.  for a direction to pay Compensation to the tune of Rws.50,000/-for deleting his important data/memory without his notice by the reprehensive of op ,
4.  for a direction to pay Compensation to the tune of Rs 40,000/- towards  mental agony, harassment and
5.  for an award of Rs 10,000/- towards litigation cost and ,
6. To pray for any other relief which this Commission deems just and proper.

3. The fact of the complaint  in brief is that:-  on 04.09.2019 ,the complainant had    purchased  one  Realme 5Pro mobile hand set from the OP company official online shopping website www.relme.com for a consideration price of Rs 14,999 against the invoice number :HR/TI92000404601.During February 2020 ,the complainant found some manufacture defects in the said mobile such as:- automatic switching off issues, vibrating issues, application shutting down automatically ,network connecting and heating at an extreme level  without using the internet or charging .On 12.02.2020 the complainant visited to the Realme Service center situated at Mahavirpada, Bhawanipatna where in, his mobile was kept for one day for inspection. Thereafter ,in the next day i.e. on 13.02.2020,when the complainant re-visited to the said service centre he found that, all his important data/memory has been deleted and the issue were unresolved .On being asked ,the representative of the op at the service centre expressed their inability to restore /save  the important data & memories in the phone  and replied that ,they have uploaded the mobile and it takes time for the issues to be resolved and on being asked for supply of the copy of the job sheet of services done for logging FIR at the Police Station ,the representative of the OP in its service center strictly refused to give any copy of the job sheet of the mobile set. It is alleged that, the problem could not be resolved and the mobile phone continued to show defects for which the complainant was compelled to purchase a new mobile hand set. It is alleged that, the OP sold a mobile with manufacture defects and on being complaint the op failed to provide proper service and even failed to provide job sheet of the details of the repair done with the alleged mobile rather delete the important data of the complainant stored in the mobile hand set without the notice of the complainant shows clearly the unfair trade practice and deficient service of the OP towards the complainant for which the complainant suffered financial loss & mental agony need to be compensated by the op adequately . Hence this complaint .
4. On being notice, the Opposite Party   appeared through their counsel Sri S.K Mishra but failed to filed their written version within the stipulated period of time as prescribed under C.P. Act 2019 as such the written version of the op has not been accepted vide order dt. 13.09.2022 in view of order dt.4.3.2020 of the Apex Court passed in New India Assurance Co. Ltd. Vrs.  Hilli Multi Purpose Cold Storage Pvt.Ltd. However, we have given sufficient opportunities to the Ops to take part in further proceeding of the case without written version but no rebuttal evidence is adduced by the op .
5. The Op remain absent on the date fixed for hearing so also the complainant. No evidence on affidavit is filed by the parties.  , Accordingly, heard the learned counsel for the complainant present & perused the material on record. We have our thoughtful consideration on the summation of the learned counsel for the complainant.
6. The Ld. Counsel for the complainant submitted that ,the OP sold a mobile with manufacture defects and on being complaint the op failed to provide proper service to rectify the alleged defect  raised   within the   period of warranty and even failed to provide job sheet of the details of the repair work done with the alleged mobile rather, delete the important data of the complainant stored in the mobile hand set without the notice of the complainant clearly shows the unfair trade practice and deficient service of the OP towards the complainant for which the complainant suffered financial loss & mental agony need to be compensated by the op adequately ,preferable awarding monetary compensation & returning the cost of the alleged mobile hand set with interest from the date of purchased or be  replaced with new one of same model with fresh warranty .
7. Learned counsel for the complainant placing reliance  upon the judgment of the Hon’ble Supreme Court passed in  M.Venkataramana Hebbar Vs M. Rajagopal draw our attention on the doctrine of non –traverse and urged that it is rightly applicable in this case as non of the allegation made by the complainant are ever disputed or traversed by the O.P in any manner .The opposite party have neither    disputed nor  produce any evidence contrary to the averment of the complainant which in terms is a clear admission of facts of the complaint and the same need not proved as per Sec 58 of Indian evidence Act. Law is well settled that,  every allegation of facts in the complaint if not denied specifically or by necessary implication , or stated to be admitted in the pleading of the O.P shall be taken to be admitted accept as against a person disability . Where the O.p has not filed a pleading it shall be law full for the court to pronounced judgment on the basic of the fact contend in the plaint except as against the person under a disability To substantiate his claim the complainant has filed the copy of purchased bill against the alleged mobile only without signed & authenticated to be true. No other evidence is adduced by the complainant to prove the allegation made against the op .Even the complainant averment is not supported by any affidavit of the complainant.
8. Admittedly, no evidence on affidavit as prescribed in C.P.Act 2019 is adduced by the complainant. We are of the opinion that, the copy of documents i,e copy of purchased bill against the alleged mobile filed by the complainant along with his complainant petition without  authenticated by fundamental evidence that, this copy is in fact a true copy of the original may not be accepted as evidence,(Reliance placed on the ratio of judgement of Honourable Supreme Court in M. Chandra Vrs. M. Thangamuthu & another ,reported in 2010(ii) CLR (SC) 746 :(2010) 9 SCC 712 ) 
9. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
10. In Rabindra Nath Dasgupta & Others Vrs. M/S Karnani Properties Limited , the Hon’ble High Court of Calcutta held; “It is a settled principle that, pleadings are not evidence and that, a party wants to prove anything as made out in his pleadings has to give evidence in support of the same “Here in this case ,the complainant has failed to adduce any cogent evidence to substantiate his claim.
11. Law is well settled that, complainant is to prove deficiency in service as alleged against the Ops but here the complainant failed to prove any manufacture defects ever there in the alleged mobile hand set and any negligence & deficiency of service on the part of the Ops as such above  submission of the learned counsel of the complainant is not acceptable .  
12. Based on above facts & circumstances and settled principle of law, we are of the opinion that this complaint sans merits. Hence, dismissed against the OPs ex-parte .However, no order as to cost.

  Dictated and corrected by me.

President

I   agree.

Member    

Pronounced in open Commission today on this   5^th April 2023  under the seal and signature of this Commission. The pending application if any is also disposed off accordingly.

Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.

                                                                    Dictated.