1. The brief fact of the case of complainant is that on 27.09.2017 he purchased one Samsung Mobile handset from O.P.No.1 bearing model no. Samsung Galaxy J2, IMEI No. 351680/09/529534/5 & 351681/09/529534/3 and paid Rs. 7,000/- vide invoice no. 985 dated 27.09.2017 alongwith warranty certificate.  It is alleged that 3 month after it’s purchase, the said mobile handset showed several defects including sound system and stopped functioning and he did not get its utility and on January 2018, he deposited with the O.P.No.1, who after 20 days keeping with him, returned the said mobile 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 O.P.No.1 regarding the existence of further defects, the O.P.No.1 disclosed that the alleged mobile is having manufacturing defect and expressed his inability to repair, thus alleging 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 replace the mobile or refund the cost of the mobile handset of Rs. 7,000/- and to pay Rs. 20,000/- and Rs. 5,000/- towards compensation and costs of litigation to him.
    
2. On the other hand, the O.P. No. 1 appeared in this case and filed his counter admitting the selling of the alleged mobile handset to the complainant, but denied the allegations of complainant stating that he was only a retailer and as per the complaint of complainant, he reported the matter to the O.P.No.3 and if any manufacturing defect exist in the alleged mobile, than it is the company who is liable for said defective goods and with other contentions, he prayed to dismiss the case against him.

3. The O.P.No.2, the authorized service center of the O.P. No.3, though received the notice from the Fora, did not choose to appear in this case nor filed his counter nor participated in the hearing, as such we lost every opportunities to hear from him, so also non participation of the O.P.No.2 in the present proceeding, makes the allegations of the complainant vital and strong from his side.
    
4. The O.P. No. 3 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.

5. Except Complainant no other parties to the present disputes, have filed any documents.  Complainant has filed the retail invoice issued by O.P. No. 1 and job sheet vide no. 68400000026 issued by the O.P.No.2.  Heard from the Complainant as well as from the A/R for O.P.No.3.  Rest O.Ps are absent during the hearing.  Perused the case records and material documents available therein.  
    
6. 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 Galaxy J2, IMEI No. 351680/09/529534/5 & 351681/09/529534/3 and paid Rs. 7,000/- vide invoice no. 985 dated 27.09.2017 alongwith warranty certificate and the Complainant has filed document to that effect.  It is also submitted by the Complainant that 3 month after it’s purchase, the said mobile handset showed several defects including sound system and stopped functioning and he did not get its utility and on January 2018, he deposited with the O.P.No.1, who after 20 days keeping with him, returned the said mobile with a false belief that the mobile was repaired, but after some days, the said mobile showed the previous defect alongwith some additional defects.  Complainant also filed document to that effect.  Since the O.P. No.1 did not participate in the hearing and also did not choose to adduce any evidence to that effect, we lost opportunities to hear from him so also to come to a conclusion that whether the alleged mobile handset was properly repaired through the expert of the O.P.No.3?  Further the O.P. No. 2 though the received the notice did not choose to appear in the case, as such the allegations of complainant remained unchallenged from the side of O.P. No. 1 & 2.Though the O.P.No.3 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 or from their service center i.e. O.P. No. 2 and since the O.P. No.2 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.”

7. Further, at the time of hearing, the O.P.No.1 & 2 are absent on repeated calls, for which we lost opportunities to come to know that whether the submissions of the O.P.No.3 contains any truth or not, as such the contentions of the O.P. No. 3 was taken into consideration regarding the fact that the defects were not in their knowledge.  However, the O.P.No.3 has admitted that the alleged mobile handset in dispute was manufactured by them which was sold by O.P. No. 1 to the Complainant and is within the warranty period.  Further the job sheet vide no. 68400000026 issued by the O.P.No.2 clearly proves that the alleged mobile is under warranty period.  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.3 have challenged the same but to make it contrary, they did not file any evidence to that effect, therefore, the allegations of Complainant is wellestablished, so also the absence of O.P.No.2 makes the averments of Complainant strong and vital.

8. Further, the defects were occurred during the warranty period though the mobile handset was used for 3 months, 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 the local technicians but not by O.P.No.2 who is the authorized service center of the O.P.No.3, for which the alleged mobile handset reiterated its previous defects alongwith some additional defects and in our view, 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.3 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.3 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 any defects, whereas the complainant has already produced the job sheet issued by their authorized service center to prove his submissions.   
    
9. We feel, had the O.P. No.1 rectified the alleged defects occurred in the mobile handset through the O.P. No.2, the authorized service center, set up by the O.P.No.3, 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 & 3 for providing better service to his genuine customer.Further it is seen that in the present locality, though there is an authorized service center i.e. O.P.No.2 who 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.3 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.

10. Further the allegations of complainant that the O.P.No.2 has grabbed a sum of Rs.3,304/- from him towards service of the alleged mobile handset whereas the alleged mobile handset is under warranty and the O.P.No.2 was not supposed to take any amount towards repair charges and complainant has filed document i.e job sheet vide no. 68400000026 for Rs. 3,304/- to that effect and the said versions of complainant is never been challenged by any of the parties in disputes.  As such it is clearly established that the O.P. No.2 has taken Rs. 3,304/- illegally from the complainant whereas the alleged mobile handset is under warranty and such act of O.P.No.2 is clear case of deficiency in service. 
     
11. Further lying the said mobile handset for a long period without any repair and use, in our view, is of no use.

12. 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 some mental agony, financial loss and physical harassment, for which he was compelled to file this case incurring some expenses.  Considering his sufferings, we feel a sum of Rs. 3,000/- towards compensation and Rs. 2,000/- 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.3 being the manufacturer of the alleged product is herewith directed to refund the cost of the alleged mobile handset i.e. Rs. 7,000/- to the Complainant alongwith Rs. 3,304/- which was extracted by the O.P.No.2.  Further O.P.No.3 is herewith directed to pay Rs. 3,000/- towards compensation and Rs. 2,000/- for costs of litigation to the Complainant.  All the above order is to be complied 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.3 at the time of complying the order by them.

        Pronounced in the open Forum on this the 5^th day of June, 2018.

        Issue free copy to the parties concerned.