1. The brief fact of the case of complainant is being allured with the massive advertisement about the products of O.P. No. 2, complainant on 10.12.2020 placed an order to purchase one Red Mi 9 Not Pro to the O.P. No. 1 vide order no. 8018988737 dated 10.12.2020 for consideration of Rs. 6,500/-.  It is alleged that after receipt the parcel from O.P. No. 1 he found two numbers of wrinkled jeans pant instead of the mobile for which he placed the order, for which he contacted with the O.Ps but did not receive any favourable response till date, thus showing deficiency in service, he filed this case claiming for replacement of product or to refund the costs of mobile handset alongwith Rs. 50,000/- and Rs. 5,000/- towards compensation and costs of litigation from the O.Ps.

2. The notice sent to O.P. No. 1 through Regd. Post vide RL No. RO024840248IN dated 21.01.2021 has not returned back unseved, as susch we held the service of notice is sufficient basing on the verdict of Hon’ble Allahabad High Court in the case between Rajanikant Mani Tripathi Vs. State of U.P. and Anr., accordingly, the O.P. No. 1 set exparte and the allegations made against them remained unchallenged and unrebuttal.

3. The O.P. No. 2 appeared through their Ld. Counsel, filed their written version denying the allegations of complainant have contended that since the alleged transaction was made between the complainant and O.P. No. 1, as such the complainant is not a consumer under them and no consideration was paid to them by the complainant, so also they have not authorized the O.P. No. 1 to sale their products. Further alleged that since no allegation was made against the O.P. No. 2, as such the case is not maintainable and with other contentions showing their no deficiency in service, they prayed to dismiss the case.

4. Except complainant no parties to the present dispute have filed any documents.  Heard from the complainant as well as the A/R for O.P. No. 2.  Perused the case record and material documents available therein.

5. It is an evidentiary fact that the complainant has purchased the alleged Red Mi 9 Not Pro which is the product of O.P. No. 2 through the O.P. No. 1 vide their invoice no. 8018988737 dated 10.12.2020 for consideration of Rs. 6,500/-.  Complainant filed document to that effect.  The allegation of complainant is that after receipt the parcel from O.P. No. 1 he found two numbers of wrinkled jeans pants instead of the alleged mobile which he placed the order, for which he contacted with the O.Ps but did not receive any favourable response till date, since the O.P. No. 1 did not appear throughout the proceeding, as such we lost opportunities to hear from them.As such the allegations made against them remained unchallenged and unrebuttal.Though the O.P. no. 2 has contended that they do not have any commercial relation with the O.P. No. 1 and the O.P. no. 1 has not been authorized to sale or market their products, but did not choose to file any documentary evidence to that effect, whereas the O.P. No. 2 is supposed to document to prove their contentions and without any cogent documentary evidence, the plea of O.P. No. 2 will not sustain from any angle.And we do not think that the O.P. No. 2 has not authorized the O.P. No. 1 to sale or market the products of O.P. No. 2.Since no contradictions brought out by both the O.Ps, the oral submission o O.P. No. 2 will not help them, and without any cogent or proper evidence, the allegations of complainant remained strong an unchallenged.In this connection, we have fortified by the verdicts of Hon’ble National Commission in the case between Urban Improvement Trust, Rajasthan, Bikaner Vrs Babulal and another, wherein the Hon’ble Commission has held that “unrebuttal averments are deems to be admitted”.

6. Further it is a fact that the product was belonged to the O.P. No. 2 and if they have not authorized the O.P. No. 1 to sale or market their product, than how can it is be possible that the O.P. No. 1 has got the alleged products to advertise the same in their platform and sold the same for Rs. 6,500/- to the complainant.  It is a common phenomena, now-a-days prevailing in the market, that generally all the branded companies are using online platform to sale or market of their various products to increase their business volume on commission.  Hence it cannot be said that the O.P. No. 2 does not have any commercial connection with the O.P. No. 1.   Further it is a matter of surprise, if the O.P. No. 1 has sold the alleged product of O.P. No. 2 without their permission or without their consent, than the O.P. No. 2 should disclose that what the steps they have taken against the O.P. No. 1.  Considering the above discussions, we do not think that the O.P. No. 2 has no any commercial relation with the O.P. No. 1.
    
7. Considering the above discussion, we feel, the O.P. No. 1 has delivered the alleged two numbers of wrinkle jeans pants instead of the mobile handset being ordered either knowingly or unknowingly, where it is the duty of the O.P. No. 1 to verify and check the products they are going to deliver prior to deliver the same to the customer properly.  But in the instant case, the O.P. No. 1 has not done so, and delivered the wrong products against the alleged product being ordered, which is clear deficiency in service.  However, the alleged product is belonged to the O.P. No. 2 being manufacturer.  Further it is settled law for any act of commission agent, the company is solely liable.  Hence this order.

                                                                                                                          ORDER

          The complaint petition is allowed in part.  The O.P. No. 2, being the manufacturer of the alleged mobile handset, is herewith directed to refund the costs of mobile handset i.e. of Rs. 6,500/- alongwith Rs. 3,000/- towards compensation and Rs. 1,000/- towards costs of litigation within 45 days from the from the date of receipt of this order, failing which the costs of mobile handset shall carry interest @ 10% p.a. from the date of purchase i.e. 20.12.2020 till payment.   Further the O.P. No. 2 is at liberty to recover the entire amount paid by them from the O.P. No. 1, if they desire to do so.

          Pronounced the order in the open Court on this the 5^th day of September, 2022.  Issue free copy to the parties concerned.