1. Brief fact of the case of the complainant is that he purchased one Sony mobile handset from O.P.No.1 bearing model no. M4 AQUA E2363 bearing IMEI No. 36219807-642560-4 vide invoice no. 1878 dated 13.08.2015 for consideration of Rs. 20,990/- alongwith warranty certificate.  It is alleged that five months after its use, the said mobile handset showed some defects in its functioning and he did not get its utility and in the month of January, 2016, he reported the matter to the O.P.No.1 and as per his advise he deposited the said mobile handset with the O.P.No.1, who after 7 days returned the said mobile with a belief that the mobile was repaired, but after two to three days, the said mobile showed the previous defects for which the complainant again deposited the alleged handset with the O.P.No.1.It is also alleged that on repeated approach to the O.P.No.1 regarding the defects, the O.P.No.1 disclosed that the alleged mobile is having manufacturing defect, thus showing 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 either to replace the alleged handset or to refund the cost of the mobile and to pay Rs. 30,000/- and Rs. 5,000/- towards compensation and costs of litigation to him.

2. The O.P. No. 1 though not appeared before this Fora, but submitted his counter version which was received through registered post wherein he admitted the sale of alleged handset to the complainant but denied other allegations contending that being a retailer of the O.P. No. 2, he sold he alleged handset to the complainant and he does not have any knowledge about the defects occurred in the alleged handset and also contended that he is only related with the sale of the product of the O.P.No.2 but for any defects and complainant has to lodge his claim before the O.P.No.2, hence denying his liability, O.P.No.1 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 denied all other facts contending that though the alleged mobile handset was sold by the O.P.No.1, but no service record was available with any of their service centers. Further they contended that complainant has not deposited the alleged handset with them and without inspecting the same, the issue pertaining to the handset cannot be resolved and with other contentions and 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.  During hearing, the O.P.No.1 is totally absent, inspite of repeated opportunities given to him for hearing, and except counter version no other evidence is led by any of the parties.  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 alleged mobile handset to the complainant by the O.P.No.1 bearing model no. M4 AQUA E2363 bearing IMEI No. 36219807-642560-4 vide invoice no. 1878 dated 13.08.2015 for consideration of Rs. 20,990/- alongwith warranty certificate.  Complainant filed document to that effect.  The allegations of complainant is that due to defects in the alleged mobile handset, in the month of January, 2016, he deposited the same with the O.P.No.1 for its repair, who after keeping the same for about seven days, returned the mobile but the previous defects found exist.  Whereas the O.Ps have challenged the versions of complainant stating that the complainant never come to them for any complaints regarding the defects of the alleged mobile.  Except the fact regarding service point, no other points raised by the opposite parties. From the record, it is seen that except counter versions no relevant documents are filed by the opposite parties to prove their submissions.Though the A/R fir O.P.No.2 challenged the same during hearing, but miserably failed to produce any documentary evidence in support of their submissions.We think, had the complainant not been to the opposite parties for lodging any claim during the month of January, 2016, the O.Ps could have produced their complaint register during such period to prove their submissions.But without producing any documentary evidence to that effect, both the opposite parties have intended to push the burden of proof on the complainant.Further it is well known to one and all that always a complainant does not have documentary evidence to prove his allegations, but it does not mean that the complainant has not suffered due to defects in a products being purchased by him.At the time of hearing, complainant vehemently submitted that he deposited the alleged mobile handset with the O.P.No.1 for its repair, though the same is challenged by the opposite party no. 1, but miserably failed to produce any documentary evidence.As it is seen that always a consumer who purchased a product and found defects in it, immediately he contacts with the seller, from whom he purchases the product.Hence, we feel, definitely, the complainant had been to the opp. party no. 1 for lodging the complaint in regard to the defects of the alleged handset and without registering the complaint, the opposite party no. 1 might have repaired the same through a local technician.Since the O.P. No.1 did not participate in the hearing, we lost opportunities to come to a conclusion that whether the alleged mobile handset produced before him or not and if produced whether the 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 adduce cogent evidence either from an expert opinion nor obtained any evidence from their channel partner i.e. O.P.No.1.As such the averments made by complainant became unrebuttal from the side of the O.Ps.

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.  However, the O.P.No.2 has admitted that that the alleged mobile handset in dispute was manufactured by them which was sold by the O.P. No. 1 to the complainant.  The allegations of the complainant regarding the fact that after some days of its repair, it showed the previous 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 the O.P.No.1 makes the averments of complainant became strong and vital.

7. Further, the defects were occurred during the warranty period though the mobile handset was used for five months, which was repaired by the O.P. No. 1, but the same defects were persisted even after of its repair by O.P. No.1, as such the complainant prayed for to replace the alleged mobile or to refund 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 and the same is not in the knowledge of the O.P. No. 2, for which the alleged mobile handset reiterated its previous defects and 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 the service details of the alleged mobile handset is not found in their system, but miserably failed to produce the details of complaints being lodged during such period from their system, 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 regarding existence of the defects.

8. We feel, had the O.P. No.1 brought the said fact into the knowledge of the O.P.No. 2, than the defects of the alleged handset could have easily and properly rectified by the authorized service center of the O.P.No. 2.  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.  In the present case, since there is no authorized service center in the present locality, the complainant who purchases 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 permitted as per law.

9. Further lying the said mobile handset for about more than two years without any 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 not providing better service by the O.Ps to their valuable customer like the complainant, as the complainant must have suffered mental agony and physical harassment, for which the complainant was compelled to file this case incurring some expenses.  Considering his sufferings we feel a sum of Rs. 3000/- and Rs. 2000/- towards compensation and costs 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. 20,990/- to the complainant and also to pay compensation of Rs. 3,000/- and Rs. 2,000/- towards compensation and costs of litigation within one month from the date of receipt of this order, failing which, the compensation amount shall carry interest @ 10% per annum from the date of this order.  Further the complainant is herewith 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 3^rd day of December, 2018.

        Issue free copy to the parties concerned.