1. The brief fact of the case of complainant is that on 27.12.2016 he purchased one Samsung Mobile handset from O.P.No.1 bearing model no. Samsung A910 Black, IMEI No. 352944081150115/01 & 352945081150112/01 and paid Rs. 32,400/- vide challan no. 67 dated 27.12.2016 alongwith warranty certificate.  It is alleged that 25 days after its purchase, the said mobile handset showed some defects in its functioning and he did not get its utility and on January, 2017, he deposited with the O.P.No.1, who after 20 days, returned the said computer with a false belief that the mobile was repaired, but after some days, the said mobile showed the previous defect alongwith some additional defects.That on approach to the O.P.No.1 regarding the defects, the O.P.No.1 disclosed that the alleged mobile is having manufacturing defect and expressed his inability to repair, thus showing the unfair trade practice and deficiency in service on the part of the O.Ps, he filed this case with a prayer to direct the O.Ps to refund the cost of the mobile handset and to pay Rs. 50,000/- and Rs. 10,000/- towards compensation and costs of litigation to him.
    
2. On the other hand, the O.P. No. 1 though received the notice of this Fora, did not choose to appear in this case, nor he filed the counter / written version nor also participated in the hearing inspite of several opportunities / adjournments have given to him for his submissions keeping in view of natural justice, as such, we have lost opportunities to hear from him.
    
3. The O.P. No. 2 is represented through their Ld. Counsel, who appeared in this case, filed their counter in shape of written version admitting the purchase of alleged mobile handset by the Complainant but denied all other facts contending that they have “Principal to Principal” relation with their channel partners and  also contended 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 dispatch 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, so also neither the Complainant nor the O.P.No.1 have intimated them regarding any defect, as such showing their no liability, 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. In the instant case, there is no dispute regarding purchase of the alleged mobile handset by the Complainant from the O.P.No.1 bearing model no. Samsung A910 Black, IMEI No. 352944081150115/01 & 352945081150112/01 on payment of Rs. 32,400/- vide challan no. 67 dated 27.12.2016 alongwith warranty certificate and the Complainant has filed document to that effect.  It is also submitted by the Complainant that 25 days after its purchase, the alleged mobile handset showed some defects in its functioning, for which, he did not get its utility and on January, 2017 he handed over the said mobile handset to the O.P.No.1, who after 20 days, returned the said mobile with a false belief that the mobile was repaired, but after some days, the said mobile showed the previous defects alongwith some additional defects.  Since the O.P. No.1 did not appear throughout the proceeding, we lost opportunities to come to a conclusion that whether the alleged mobile handset was properly repaired through the expert of the O.P.No.2 ?  Though the O.P.No.2 challenged the same stating that the defects occurred in the  mobile handset are not in their knowledge, but did not adduce cogent evidence either from a expert opinion nor obtained any evidence from their channel partner i.e. O.P.No.1 and since the O.P. No.1 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 connections, we have fortified with the Judgement of Hon’ble National Commission in the case between Urban Improvement Trust, Bikaner, Rajasthan Vrs Babu Lal and Another that “Unrebutted averments shall be deemed to be admitted.”
    
6. 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 that the defects were not in their knowledge.  However, the O.P.No.2 has admitted that the alleged mobile handset in dispute was manufactured by them which was sold by the O.P. No. 1 to the Complainant.  The allegations of the Complainant regarding the fact that after some days of its repair, it showed the previous defects alongwith some additional defects, 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 file any evidence to that effect, 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.
    
7. Further, the defects were occurred during the warranty period though the mobile handset was used for 25 days, which was repaired by the O.P. No. 1, but the same defects were persisted alongwith some additional defects even after of its repair was made by O.P. No.1, as such the Complainant prayed for the cost of the mobile from the O.Ps.  We feel, the alleged mobile handset must have repaired by the O.P. No. 1 through local technicians but not by any authorized technicians of O.P.No.2, for which the alleged mobile handset reiterated its previous defects alongwith some additional defects and such type of practice adopted by the O.P. No. 1 is clearly established the principle of deficiency in service.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 make any contradiction to the effect that of existence of the defects.
    
7. We feel, had the O.P. No.1 rectified the alleged defects occurred in the mobile handset through one authorized service center set up by the O.P.No.2, then the defects of the mobile handset 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 alleged mobile handset from the complainant, immediately, he was supposed to intimate the O.P.No.2 for providing better service to their genuine customer.  Further it is seen that in the present locality, though there is an authorized service center is set up newly, but is unable to provide better service to the customers, as such the customers who purchase the products of the O.P.No.2 from the O.P. No. 1 must have depended on the O.P.No.1 to avail proper service.  But without providing better service, as per the norms of the company, the O.P.No. 1 indulged himself in corrupt practice of selling the products and carry out the defects as per his own choice by the help of unauthorized technicians, which is not permissible in the eye of law.
    
9. Further lying the said mobile handset for about more than one and half years without any use, in our view, is of no use.
    
10. Hence considering the above discussions, we feel, the Complainant deserves to be compensated with adequate compensation and costs for non providing better service by the O.Ps to their valuable customer like the Complainant, as the Complainant must have suffered mental agony and physical harassment, for which he was compelled to file this case incurring some expenses.  Considering his sufferings, we feel if a sum of Rs. 2000/- towards compensation and Rs. 1000/- towards cost of litigation is awarded, than it 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 refund the cost of the alleged mobile handset i.e. Rs. 32,400/- to the Complainant within one month from the date of receipt of this order, failing which, the said amount shall carry interest @ 10% per annum from the date of this order.  Further the O.P.No.1 is herewith directed to pay Rs. 2,000/- towards compensation and Rs. 1,000/- for costs of litigation to the Complainant within 30 days from the date of receipt of this order, failing which, the compensation amount shall carry interest @ 10% p.a. from the date of this order.  Further the Complainant is directed to hand over the alleged mobile handset to the O.P.No.2 at the time of complying the order by them.

        Pronounced in the open Forum on this the 12^th day of April, 2018.

        Issue free copy to the parties concerned.

           Sd/-                                                                           Sd/-

       Member                                                                    President (I/c)