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. 50,000/- towards compensation and Rs 5,000/- towards cost of litigation ect.
The complainant in the petition submitted that he purchased a Micro max Mobile phone bearing Model No. MMX-A-46 IMEI No.911335402811655, BAT-S/W-UO2775140,3300127054 and S-IMEI No. 911316752720175 from O.P.No.1 an authorized retailer on dated 02.07.2014 for an amount of Rs. 4,600/- vide receipt No.56 dated 2.7.2014 with warranty. After One 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 seven days of its deposit the OP No-1 delivered the mobile by saying that the defects were rectified. Thereafter, one day its use 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 Office Peon of this forum and notice sent to the O.P No-2 & 3 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.
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 & 3 to refund Rs. 4,600/- 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 28th April, 2015
