1. The brief fact of the case of complainant is that on 21.06.2020 he purchased one Samsung Mobile handset from O.P.No.1 bearing model no. J600GZDGING having IMEI No. 358461/09/251567/7 and 358462/09/251567/5 and paid Rs. 10,600/- vide invoice no. 1045 dated 21.06.2020 alongwith warranty certificate.  It is alleged that after a week of its use, the said mobile handset showed several defects like touch screen / battery / overheat performance in its body part and did not function properly, for which, he deposited the alleged handset with the O.P.No.1, who after 10 days keeping with him, returned the said mobile handset by saying that the mobile was repaired, but after using for about 10 days, the said mobile showed the previous defects alongwith some additional defects like discolour and instant hanging. That on approach to O.P.No.1 regarding the existence of further defects, O.P.No.1 kept the mobile for about 15 days for its repair and in the month of September, 2020 he returned the mobile to the complainant.After using the same only 2 to 3 days, the said mobile exhibited the previous defects, and on approach to O.P. No. 1 who disclosed that the mobile is having inherent defect and to contact with the O.P.No.2.Thus alleging unfair trade practice and deficiency in service on the part of the O.Ps, complainant filed this case with a prayer to direct the O.Ps to refund the cost of mobile handset i.e. Rs. 10,600/- and to pay Rs. 25,000/- and Rs. 10,000/- towards compensation and costs of litigation.

2. The O.P. No. 1, though received the notice from the Court, but did not choose to appear in this case and absent throughout the proceeding, as such we lost every opportunities to hear from him, so also the allegations made against him remained unchallenged and unrebutal. 

3. On the other hand, the O.P. No. 2 is represented through their Ld. Counsel, who filed their counter in shape of written statement admitting the sale of alleged mobile handset to the Complainant 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 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 sale of the alleged mobile handset to the complainant from the O.P.No.1 bearing model no. J600GZDGING having IMEI No. 358461/09/251567/7 and 358462/09/251567/5 and paid Rs. 10,600/- vide invoice no. 1045 dated 21.06.2020 alongwith warranty certificate and complainant has filed document to that effect.  after a week of its use, the said mobile handset showed several defects like touch screen / battery / overheat performance in its body part and did not function properly, for which, he deposited the alleged handset with the O.P.No.1, who after 10 days keeping with him, returned the said mobile handset by saying that the mobile was repaired, but after using for about 10 days, the said mobile showed the previous defects alongwith some additional defects like discolour and instant hanging and on approach to O.P.No.1 regarding the existence of further defects, O.P.No.1 kept the mobile for about 15 days for its repair and in the month of September, 2020 he returned the mobile to the complainant.After using the same only 2 to 3 days, the said mobile exhibited the previous defects, and on approach to O.P. No. 1 who disclosed that the mobile is having inherent defect and to contact with the O.P.No.2.Though the O.P. No.1 received the notice but did not choose to appear in this case, as such we lost every 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 choose to adduce any cogent evidence either from a expert opinion nor obtained any evidence from their channel partner i.e. O.P.No.1 and the O.P. No.1 became silent over the said matter and 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.”

6. Further, at the time of hearing, the O.P.No.1 was totally absent on repeated call, 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 mobile handset in dispute was manufactured by them which was sold to the Complainant. The allegations of the complainant regardig the fact that after a week of its first repair, it exhibited the previous defects alongwith some additional defects, was well corroborated by him at the time of hearing. Though the Op.No.2 have challenged the same but to make it contrary, they did not adduce any evidence to that effect, therefore, the allegations of of complainant is well established, so also the absence of the Op.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 only for a week, 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 on many occasions, 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 technicians of 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 in the alleged mobile, so also have not produced any single documents from their channel partner i.e. O.P. No. 1. 
8. 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 and 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 no authorized service center exist, the customers who purchase the mobile handset of O.P. No. 2 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 repair works as per his own choice by the help of local unauthorized technicians, which is not permissible as per law. Further lying the said mobile handset for a long period without any repair and use, in our view, is of no use.

9. Considering the above discussions, we feel, the complainant deserves to be compensated for non providing better service by the O.Ps, 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. 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 handset i.e. Rs. 10,600/- to the complainant alongwith Rs. 3,000/- towards compensation and Rs. 2,000/- towards costs of litigation within one month from the date of receipt of this order, failing which the cost of mobile shall carry interest @ 10% p.a. from the date of order till payment.  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.

        Pronounced in the open Forum on this the 6^th day of July, 20210. Issue free copy to the parties concerned.