ORDER
The complainant filed a petition praying to pass an orders directing the O.Ps to refund the cost of the Mobile to the complainant and to pay Rs.20,000/- towards compensation and Rs 5,000/- towards cost of litigation.
The complainant in the petition submitted that he purchased a Micro max Mobile phone bearing Model No. A-104 IMEI No.911368054562862 & No. 99113680554663872 from O.P.No.1 an authorized retailer on dated 14.11.2014 for an amount of Rs.6,900/- vide receipt No.56 dated 14.11.2014 with warranty. After six months of its purchase the complainant found defects in the said mobile and the same was brought to the knowledge of O.P.No.1 towards the rectification of defects and on his advice the complainant deposited the mobile with the OP No-1. After t months of its deposit the OP No-1 delivered the mobile by saying that the defects were rectified. Thereafter, on use for some days, the mobile the complainant found same defects for which the complainant approached the OP No-1 but there was no response from the side of the OP-1 finally he disclosed that the mobile set is suffering from inherent manufacturing defects and the same could not be rectified. Due to unfair trade practice/deficiency in service by the Opposite Parties the complaint suffered mentally, physically and financially.
Notice served to the OP No-1 through personal service and notice sent to the O.P No-2 through Registered post did not received back as un-served and, therefore, delivery presumed. Despite notice the Opposite Parties neither appeared nor filed their version as such they were proceeded ex-parte for non appearance.
Heard the complainant in course of hearing. Perused the pleadings and gone through the record carefully. Further, despite notices and ample opportunities, the OPs did not choose to file their counter version in this case. Since the Opp.Parties did not file any counter to the version of the complainant, We feel that the version of the complainant can not be disbelieved as there was no averment to the contrary or any evidence adduced by the Opp.Parties in rebuttal. It appears that the claim of the claimant is admitted by the Opposite Parties.
We are fortified by a decision of the Hon’ble High Court of Jammu & Kashmir in the matter of Fiat India Pvt. Ltd. Versus Dr. Zahid Hussain Gillari and others reported in 2003 CTJ 953(CP) wherein the Hon’ble High Court held that “it is well settled that where the averments made in the complaint are un-rebutted, the presumption is that the averments are true and correct”.
We come across a decision of the Hon’ble Supreme Court in the matter of Vidya Dhar-versus-Munkif Rao and another reported in 1992(2) Civil Court Cases at page-91 held that “ if a party did not adduce any evidence in rebuttal, then adverse inference should drawn against the party for not rebutting the evidence”.
Taking consideration the undisputed documentary evidence and pleadings, we are inclined to pass order in favour of the complainant, directing the O.P.No.2 to refund Rs. 6,900/- the cost of the mobile and pay Rs 5,000/- as compensation and Rs.1000/- as cost of the litigation to the complainant within 30 days on receipt of a copy of this order, in default, the Opposite Parties are liable to pay Rs. 200/- per day of default payable in to the account of state Consumer welfare fund, Odisha.
Copy of the order be sent to the parties free of cost.
Pronounced in open Court on 24th November, 2015
