| Final Order / Judgement | - The brief fact of the case of complainant is that on 22.11.2017 he purchased a Lava Mobile handset from O.P.No.1 bearing model no. LAVA Z 80 having IMEI No. 911596201674525 911596201779522 and paid Rs. 9,000/- vide invoice no. 736 dated 22.11.2017. It is alleged that after 5 months of its use, he found overheat problem in a little charge of battery and became totally dead, for which he approached the O.P.No.1, who kept the mobile handset for about 20 days and returned the same without any repair suggesting the repair through O.P. No. 2.Further it is alleged that after using for about 2 months, complainant found the previous defects and again approached the O.P. No.1, who did not register any complainant but kept the mobile handset again for about 20 days and returned the handset, and on use, complainant found the handset is not working properly and on contact the O.P. No.1 replied of having manufacturing defects, for which the complainant contacted with O.P. No.2 but, since he did not get any result, thus alleging 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 to refund the cost of the mobile handset and to pay Rs. 30,000/- and Rs. 5,000/- towards compensation and costs of litigation to him.
- The O.P. No. 1, though received the notice from this Fora, did not choose to appear in this case, nor filed their counter nor participated in the hearing in spite of several opportunities given to him keeping in view of natural justice, as such we lost every opportunities to hear from him.
- The O.P. No.2 appeared through their Ld. Counsel and filed their counter admitting the sale of alleged mobile handset but denying other allegations contending that on 26.03.2019, on visit of complainant to their service, they have intended to provide service, but complainant took away the mobile handset without getting any repair. Further contended that on 03.04.2019, complainant came to their service centre with the defective handset and service was provided to him. Thus with other contentions, showing their no liability, they prayed to dismiss the case.
- Parties have filed their respective documents. Heard from the Complainant as well as from the A/R of O.P.No.2. O.P. No. 1 is absent on calls. Perused the case record and material documents available therein.
- In the instant case, there is no dispute regarding purchase of the alleged mobile handset by the complainant from the O.P.No.1 bearing model no. LAVA Z 80 having IMEI No. 911596201674525 911596201779522 and paid Rs. 9,000/- vide invoice no. 736 dated 22.11.2017 alongwith warranty certificate and the Complainant has filed document to that effect. The allegations of complainant is that after 5 months of its use, he found overheat problem in a little charge of battery and became totally dead, for which he approached the O.P.No.1, who kept the mobile handset for about 20 days and returned the same without any repair suggesting to repair through O.P. No. 2. Further it is alleged that after using for about 2 months, complainant found the previous defects and again approached the O.P. No.1, who did not register any complainant but kept the mobile handset again for about 20 days and returned the handset, and on use, complainant found the handset is not working properly and on contact the O.P. No.1 replied of having manufacturing defects and since the O.P. No. 1 did not appear throughout the proceeding, we lost opportunities to hear from him so also to come to a conclusion that whether the alleged mobile handset was properly serviced / repaired through the authorized service center i.e. O.P.No. 2 ? Though the O.P.No.2 challenged the fact that the complainant has never approchaed them for any assistance but never challenged the dispute to the effect that the complainant left his mobile for two times with O.P. No. 1 for about 20 days respectively and also the O.P. No. 1 did not register his complaint.Though the O.P. No. 2 has filed job sheets to prove their contentions, but miserably failed to prove that the alleged mobile handset is working properly as on date of filing of the case.No documentary evidence was filed by them or by the O.P. No. 1 who suggested the handset as manufacturing defects.Since the O.P. no. 1 is totally absent in the present proceeding, as such we do not have any hesitation to disbelieve the versions of complainant and the allegations of complainant is remained unchallenged from the side of O.P. No. 1.Hon’ble National Commission in the case between Urban Improvement Trust, Bikaner, Rajasthan Vrs Babu Lal and Another has also hold that “Unrebutted averments shall be deemed to be admitted.”
- 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 the alleged mobile handset in dispute was manufactured by them which was sold to the Complainant. The allegations of the Complainant regarding the fact that after some days of its repair, it reiterates 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 choose to file any evidence to that effect like any documentary evidence from their retailer but only filed the documents related to service on dated 26.03.2019 and 03.04.2019 and totally silent over the period in the year 2018, 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.
- Further, the defects were occurred during the warranty period though the mobile handset was used for only 5 months, which was repaired by the O.P. No. 1 through the O.P.No.2, but the same defects were persisted even after of its repair was made by O.P. No.1, as such the Complainant prayed for refund of 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 as per his own choice but not by any authorized technicians of O.P.No.2, for which the alleged mobile handset reiterated its previous defects and in our view, such type of practice adopted by the O.P. No. 1 is clearly establishes the principle of deficiency in service.
- 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, 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 mobile handset from the complainant, immediate 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 centre, as such the customers who purchases the product 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 permissible in the eye of law.
- Further lying the said mobile handset for a long period without any repair and use, in our view, is of no use.
- 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 like 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 manufacturer is herewith directed to refund the cost of the alleged mobile handset i.e. Rs. 9,000/- to the complainant and also herewith directed to pay Rs. 3,000/- towards compensation for non providing service to the complainant and Rs. 2,000/- for costs of litigation to the Complainant within 30 days from the date of receipt of this order, failing which, the cost of mobile shall carry interest @ 10% p.a. till payment. Further the O.P. No. 2 is at liberty to recover the amount paid by him to the complainant as per this order, from the O.P. No. 1 in accordance with law.
Pronounced in the open Forum on this the 27th day of December, 2019.
Issue free copy to the parties concerned.
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