1. The brief fact of the case of complainant is that on 15.11.2020 he purchased one Samsung A.C. of 1.5 Ton 5 Star Split Triple Inverter Dura for Rs. 32,999/- through Flipkart platform vide invoice no. FAAC3R92100318425, which was installed on delivered on 22.11.2020 and installed by the technical head of the O.P.No.2 on 28.11.2020, but could not installed properly due to damage in the nozzle in the gas chamber.It is alleged that on contact with the O.P.No.2, though he responded on 06.12.2020, but did not take any action.Thus showing deficiency in service, complainant filed this case with a prayer to replace the alleged product and to pay Rs. 50,000/- and Rs 10,000/- towards compensation and costs of litigation.

2. The O.P. No. 1 though received the notice, did not choose to appear in this case, nor he filed the counter version nor also participated in the hearing, inspite of several opportunities have given to him for his submissions keeping in view of natural justice, hence, we lost opportunities to hear from him.

3. The O.P. No. 2 is represented through their Ld. Counsel, who filed their written statement admitting the sale of alleged A.C. to the complainant through online platform but denied all other facts contending that the alleged handset is a well established product in the market over a period of years and all those products are put through stringent control system, quality checks by the quality department before despatch to the market.  Further they contended that the Complainant has not produced any expert opinion report to prove his allegation and also the defects in the said mobile are not in their knowledge, as such showing their no liability with other contentions, they prayed to dismiss the case against them.

4. Except Complainant no other parties to the present disputes, have filed any documents.  Heard from the Complainant as well as from the A/R for O.P.No.2.  Perused the documents and materials available in the record.

5. There is no dispute regarding sale of the alleged A.C. to the Complainant through online platform of 1.5 Ton 5 Star Split Triple Inverter Dura for Rs. 32,999/- vide invoice no. FAAC3R92100318425 alongwith warranty certificate and Complainant has filed document to that effect.  During hearing, Complainant submitted that during installation of the product, the technician of O.P.No.2 found that the nozzle in the gas chamber for which the A.C. could not installed properly and on contact with the O.P.No. 2, no result came out, thus he filed this case.  On the other hand, the contentions of O.P. No.2 is that the seller i.e. Flipkart should be necessary party in the present dispute and complainant has not filed any expert opinion report to prove his allegations so also the defects were not in their knowledge, hence prayed for dismiss.

6. On careful perusal of record, it is ascertained that O.P. No.2 has filed documents like 2 nos of acknowledgement of service requests and one estimated bill issued by O.P.No.1 which shows that the complainant has made complaint for the repair of the alleged products for two times to the O.P.No.2, as the O.P.No.2 is the manufacture and service provider.  Further the document i.e. estimated bill clearly shows that the alleged product is having defects inside the gas chamber for which Rs. 2538/- was raised towards repair.  Since the O.P. No.1 did not appear throughout the proceeding, we lost opportunities to hear from him so also to come to a conclusion that whether the alleged product was properly repaired by them on the first request of the complainant ? Though the O.P.No.2 challenged the same stating that the defects occurred in the alleged A.C. are not in their knowledge, but have never denied that there is no defects in the said product and the O.P. No.1 though received the notice from this Fora, did not challenge the versions of Complainant, as such the averments made by the Complainant became unrebuttal from the side of the O.Ps.In this connection, we have fortified with by the Judgement of Hon’ble National Commission in the case between Urban Improvement Trust, Bikaner, Rajasthan Vrs Babu Lal and Another wherein Hon’ble National Commission has held that “Unrebutted averments shall be deemed to be admitted.”

7. Further, at the time of hearing, the O.P.No.1 is absent on repeated calls, for which we lost opportunities to come to know that whether the submissions of the O.P.No.2 contains any truth or not, as such the contentions of the O.P. No. 2 was taken into consideration regarding to the fact that the defects were not in their knowledge.  However, the O.P.No.2 has admitted that the alleged A.C. in dispute was manufactured by them which was sold to the Complainant.  The allegations of the Complainant regarding the fact that during installation of the alleged A.C. it was found that nozzle was damaged in the gas chamber was well corroborated by him at the time of hearing.  Though the O.P.No.2 have challenged the same but to make it contrary, they did not adduce any evidence to prove that they have supplied the alleged product in good condition through the Flipkart, therefore, the allegations of Complainant is well  established, so also the absence of the O.P.No.1 makes the averments of Complainant strong and vital.

8. Further, the defects were occurred during the warranty period that is to say on the same day of installation, as such the Complainant prayed for the replacement of the alleged A.C. of same costs.  Though the submissions of Complainant was challenged by the O.P.No.2 contending that replacement or refund of cost cannot be made without any expert opinion report made to that effect, which seems that O.P.No.2 intended to strictly push the burden of proof on the Complainant but miserably failed to go through their documents filed by them before this Commission, whereas the documents itself shows that defects in the alleged A.C.Hence, we do not feel the pleas of O.P.No.2 will sustain in any angle.

9. Further, considering the facts and circumstances, we would like to make it clear that the alleged A.C., though supplied through the online platform, but originally manufactured by the O.P.No.2.  And generally, it is seen that the reputed companies are using the services of online platforms to promote and sale their products all over and the online platforms are acting as agent of the companies on commission basis.  Further it is well settled of law that for any act of agent, the company is solely liable.  Hence we do not think that the plea of O.P.No.2 regarding implementation of Flipkart as necessary party, will not do in any manner.  

10. We feel, had the O.Ps rectified the defects occurred in the alleged A.C. with immediate effect, then the defects of the A.C. could have easily and properly rectified, so that the Complainant would not have suffered.  Further it was the duty of O.P.No.1 on the day when he received the complaint regarding damage of nozzle in the gas chamber, immediately he was supposed to intimate the O.P.No.2 for providing better service to their genuine customer.
     
11. Further it is revealed from the document of correspondence made between the complainant and the O.P.No.2, being filed by the complainant, that the O.P.No.2 has clearly admitted that as “Return Request Accepted.  The seller has arranged a replacement for Samsung… from your order with order ID OD120210410394354000.  A Wishmaster will pick up the originally delivered item by Thursday, Dec 03, 2020.  The replacement will be shipped within 1 business day of the pick up.  Please keep the item in the product box alongwith accessories & tags ready for pickup.  Please check your email for important details to ensure a successful pickup.”  Hence we feel, the O.P. No.2 is well aware of the defects in the alleged product and is also ready for replacement with a new one.  Hence as per the correspondence made between the parties, the complainant is entitled for replacement of the alleged product with a new one of same costs.

12. Hence considering the above discussions, we feel, the Complainant deserves to be compensated with compensation and costs for not providing better service by the O.Ps to the Complainant, as the Complainant must have suffered some mental agony and physical harassment, for which he was compelled to file this case incurring some expenses.  Considering his sufferings, we feel a sum of Rs. 5,000/- towards compensation and Rs. 3,000/- towards cost of litigation will meet the ends of justice.  Hence this order.

                                                                                                                              ORDER

        The complaint petition is allowed in part and the O.P. No.2 being the manufacturer of the alleged product is herewith directed to replace the alleged product with a new defect free A.C. of same costs to the Complainant alongwith Rs. 5,000/- towards compensation and Rs. 3,000/- towards costs of litigation within 45 days from the date of receipt of this order, failing which the cost of A.C. shall carry interest @ 10% p.a. from the date of purchase till payment.  Further the Complainant is directed to hand over the alleged A.C. to the O.P.No.2 at the time of comply the order.

        Pronounced in the open Court on this the 1^st day of October, 2021.  Issue free copy to the parties concerned.