1. The brief fact of the case of complainant is that he purchased one Samsung mobile bearing IMEI No. 355015/07/033896/6 & 355015/07/033896/4 from O.P.No.1 and paid Rs. 29,900/- vide invoice no. 679 dated 18.02.2016 alongwith warranty certificate.  It is alleged that seven months after its use, the said mobile handset showed several defects, for which he deposited the alleged handset with the O.P.No.3 with an assurance of return of handset within 3 days vide his bill no. 4221599591 dated 15.09.2016 but with one pretext or the other, the O.P No.3 playing hide and seek game and did not returned the handset to complainant and several approaches to the O.P.No.2 in this regard got in vein.  Thus alleging 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 and Rs. 50,000/- and Rs. 10,000/- towards compensation and costs of litigation.

2. The O.P. No. 1 though received the notice, did not choose to appear in this case, nor he filed the counter version nor also participated in the hearing, inspite of several opportunities given to him for his submissions, keeping in view of natural justice, hence, we lost every opportunities to hear from him.

3. The O.P. No. 2 is represented through their Ld. Counsel, who filed their 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 despatch to the market.Further they contended that the Complainant has not produced any expert opinion report to prove his allegations and with other contentions, showing their no liabilities they prayed to dismiss the case against them.

4. O.P.No.3 though received the notice, but did not choose to appear in this case, nor filed his version nor also participated in the hearing, as such we lost every opportunities to hear from him, and the allegations made against him remained unrebuttal and unchallenged.

5. 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 record and materials documents available in the record.

6. There is no dispute regarding sale of purchase of the alleged mobile handset to the Complainant by the O.P.No.1 bearing IMEI No. 355015/07/033896/6 & 355015/07/033896/4 from O.P.No.1 and paid Rs. 29,900/- vide invoice no. 679 dated 18.02.2016 alongwith warranty certificate and Complainant filed document to that effect.  Complainant also submits that seven months after its use, the said mobile handset showed several defects, for which he deposited the alleged handset with the O.P.No.3 with an assurance of return of handset within 3 days vide his bill no. 4221599591 dated 15.09.2016 but with one pretext or the other, the O.P No.3 playing hide and seek game and did not returned the handset to complainant and several approaches to the O.P.No.2 in this regard got in vein.  Since the O.P. No.1 & 3 did not appear throughout the proceeding, we lost opportunities to hear from them so also to come to a conclusion that whether the alleged mobile handset was repaired or not?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 their experts nor obtained any evidence from their channel partner i.e. O.P.No.1 or O.P.No.3 and the O.P. No.1 & 3 though received the notice from this Commission, 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.”

7. Further, at the time of hearing, the O.P.No.1 & 3 are 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 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 is sold to the Complainant.  The allegations of the Complainant regarding the fact that after seven month of its purchase, it exhibited the several 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 adduce any evidence to that effect, therefore, the allegations of Complainant is well  established, so also the absence of the O.P.No.1 & 3 makes the averments of Complainant strong and vital.
    
8. Further, the defects were occurred during the warranty period though the mobile handset was used only for seven months, which was handed over to the O.P.No.3 for its repair, but without any repair, the alleged handset was kept by him and lying with him, as such the Complainant prayed for the cost of the mobile from the O.Ps.  and in our view, such type of practice adopted by the O.P. No. 3 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 mobile. 

9. Further it is ascertained that the O.P.No.3 has closed his door and the alleged handset was lying with him.  In this connection, we would like to make it clear that it is the bounden duty of O.P.No.3 to have close monitoring activities of their authorized service center within a short interval, but the O.P.No.2 without doing so, kept silent for years, which results the present dispute.  And in our view, such type of activities of O.P. No.2 nothing but to encourage their authorized service center to play hide and seek game to their genuine customers, which is not permissible as per law. 

10. Hence considering the above discussions, we feel, the Complainant deserves to be compensated with compensation and costs for not providing better service by the O.Ps to the Complainant, 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 mobile handset i.e. Rs. 29,900/- to the Complainant alongwith Rs. 3,000/- towards compensation and Rs. 2,000/- towards costs of litigation within 45 days 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.  Further the O.P.No.2 is at liberty to recover the alleged handset from the O.P. No. 3 as lying with him, and also the amounts awarded for compensation and costs of litigation from the O.P. No. 3, if they desire to do so.

        Pronounced in the open Court on this the 1^st day of October, 2021.  Issue free copy to the parties concerned.