1. The brief fact of the case of complainant is being a pan shop vendor, on 05.07.2015 he purchased one Samsung refrigerator vide model no. RR1915CCASA/TL, and S.N. No. 09404ZAF807619D and paid consideration of Rs. 13,000/- with a condition of 5 years guarantee vide invoice no. 1013 dated 05.07.2015.  It is alleged that 9 months after it’s use, the said fridge showed various defects like gruff sound, non cooling, over hear on body part and totally disorder and non functioning, as such on 13.04.2016, he contacted with the O.P. No. 1 & 2, who after inspection, suggested as having manufacture defect, thus alleging deficiency in service on the part of the O.Ps, he filed this case with a prayer to direct the O.Ps to refund the cost of alleged fridge and to pay Rs. 50,000/- and Rs. 10,000/- towards compensation and costs of litigation to him.

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

3. On the other hand, the O.P. No. 2 & 3 are represented through their Ld. Counsel, who filed their counter in shape of written statement admitting the purchase of alleged fridge by 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 their channel partner for sale on Principal to Principal basis.  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 & 3.  Perused the documents and materials available in the record.

5. In the instant case, there is no dispute regarding purchase of the alleged fridge by the Complainant from the O.P.No.1 bearing model no. RR1915CCASA/TL, and S.N. No. 09404ZAF807619D and paid consideration of Rs. 13,000/- with a condition of 5 years guarantee vide invoice no. 1013 dated 05.07.2015.  Complainant filed document to that effect.  The allegations of complainant is that 9 month after it’s use, the said fridge showed several defects gruff sound, non cooling, over hear on body part and totally disorder and non functioning, as such on 13.04.2016, he contacted with the O.P. No. 1 & 2, who after inspection, suggested as having manufacture defect.  Since the O.P. No.1 did not appear throughout the proceeding, we lost every opportunities to hear from him so also to come to a conclusion that whether the alleged fridge was properly inspected through the expert technician of the O.P.No.3 i.e. O.P. No. 2.  Though the A/R for O.P. No. 2 & 3 challenged the same stating that the defects occurred in the alleged fridge 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 though received the notice from this Fora, did not challenge the versions of Complainant, as such the averments made by the Complainant became unrebuttal from the side of the O.Ps No. 1.  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 is absent on repeated calls, for which we lost opportunities to come to know that whether the submissions of the A/R for O.P.No.2 & 3 contains any truth or not, as such the contentions of the O.P. No. 2 & 3 was taken into consideration regarding to the fact that the defects were not in their knowledge.  However, the O.P.No. 2 & 3 has admitted that the alleged fridge in dispute was manufactured by them which was sold to the Complainant.  The allegations of the Complainant regarding the fact that after 9 months of its use, it exhibited the various defects, was well corroborated by him at the time of hearing.  Though the A/R for O.P.No.2 & 3 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 makes the averments of Complainant strong and vital.

7. Further, the defects were occurred during the warranty period though the fridge was used for 9 months, which was inspected by the O.P. No. 1, but the same defects were persisted even after of its inspection was made by O.P. No.1, as such the Complainant prayed for the cost of the mobile from the O.Ps.  We feel, the alleged fridge might not have repaired by the O.P. No. 1 through the local technicians but not by O.P. No. 2 who is the authorized service center of O.P.No.3, for which the alleged fridge became useless 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 & 3 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 & 3 intends to 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 fridge.   

8. We feel, had the O.P. No.1 rectified the alleged defects occurred in the fridge through the O.P. No. 2 who is the authorized service center set up by the O.P.No.3, then the defects of the fridge could have easily and properly rectified, so that the Complainant would not have suffered.  Further it was the duty of O.P.No.1 on the day when he received the alleged fridge from the Complainant, immediately, he was supposed to intimate the O.P. No. 2 & 3 for providing better service to their genuine customer.  Further it is seen that generally the customers who purchase the handset of O.P. No. 3 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, which is not permissible as per law. 

9. Further lying the said fridge for a long period without any repair and 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 non providing better service by the O.Ps to their valuable customer, as the complainant must have suffered 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.3 being the manufacturer of the alleged product is herewith directed to refund the cost of the alleged fridge i.e. Rs. 13,000/- 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 fridge shall carry interest @ 10% p.a. from the date of order.  Further the Complainant is directed to hand over the alleged fridge to the O.P.No.3 at the time of complying the order.

        Pronounced in the open Forum on this the 10^th  day of February, 2020.  Issue free copy to the parties concerned.