1. The brief fact of the case of complainant is that on 02.08.2015 he purchased one Samsung Mobile handset from O.P.No.1 bearing model no. Samsung Galaxy G360H having IMEI No. 357386/06/941674/3 & No. TIMG 2167S/2-3 and paid Rs. 8,000/- vide delivery challan no. 73 dated 02.08.2015 alongwith warranty certificate.  It is alleged that 7 month after it’s purchase, the said mobile handset exhibited several defects and on March 2016, he approached the O.P.No.1 who received the alleged mobile handset for its repair and  after 20 days returned the mobile by saying the handset is repaired, but after some days,  it exhibited the previous defects.  Considering the defects of the mobile handset, and on approach to O.P. No. 2 regarding the defects, who disclosed that the handset suffers from inherent manufacturing defects.  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 refund the cost of the mobile handset and to pay Rs. 30,000/- and Rs. 3,000/- 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.2 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 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 with contentions 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.  O.P. No. 2 is absent during the hearing.  Perused the case records and material documents available therein.  
    
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 Galaxy G360H having IMEI No. 357386/06/941674/3 & No. TIMG 2167S/2-3 and paid Rs. 8,000/- vide delivery challan no. 73 dated 02.08.2015 alongwith warranty certificate and Complainant has filed document to that effect.  The allegations of Complainant is that 7 month after it’s purchase, the said mobile handset showed several defects and stopped functioning and he did not get its utility and on March 2016, he deposited the handset 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.  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.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, 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 the fact 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 O.P. No. 1 to the Complainant and is within the 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.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 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 7 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 any authorized service center of the O.P.No.2, 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.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 any defects.

8. We feel, had the O.P. No.1 rectified the alleged defects occurred in the mobile handset through the any 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 his genuine customer.  Further it is seen that in the present locality, though there is authorized service center, which 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 a long period without any repair and 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 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.2 being the manufacturer of the alleged product is herewith directed to refund the cost of the alleged mobile handset i.e. Rs. 8,000/- to the complainant alongwith 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.2 at the time of complying the order by them.

Pronounced in the open Forum on this the 27^th day of August, 2019.

        Issue free copy to the parties concerned.