| Final Order / Judgement | - The brief fact of the case of complainant is that he purchased one Samsung Mobile handset from O.P.No.1 bearing model no. Samsung – A 50 4+64 (Black), IMEI No. 354471104395806 and paid Rs. 19,990/- vide invoice no. 3709 dated 19.03.209. It is alleged that 2 to 3 days after it’s purchase, the said mobile hands exhibited some defects like battery problem, for which he deposited with the O.P.No.1, who after 7 days keeping with him, returned the said mobile being repaired, but after 7 days, the said mobile showed the previous defects alongwith some additional defects like touch screen, as such he again contacted with O.P. No. 1 and as per his suggestions, complainant left his mobile for about 7 days.But after 7 days, on contact with the O.P. No. 1, he replied that the mobile handset has not yet received from the O.P. No. 2.In the month of May 2019, O.P.No.1 returned the mobile handset showing its inherent manufacturing defects, thus showing the unfair trade practice and deficiency in service on the part of the O.Ps and with other allegations, he filed this case with a prayer to direct the O.Ps to refund the cost of the mobile handset and to pay Rs. 50,000/- and Rs. 5,000/- towards compensation and costs of litigation to him.
- On the other hand, 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 have lost opportunities to hear from him.
- The O.P. No. 2 is represented through their Ld. Counsel, who appeared in this case, filed their counter in shape of written version admitting the purchase of alleged mobile handset 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 the market. 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, as such showing their no liability, they prayed to dismiss the case against them.
- Except Complainant no other parties to the present disputes, have filed any documents. Heard from the parties present. Perused the documents and materials available in the record.
- 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. Samsung – A 50 4+64 (Black), IMEI No. 354471104395806 and paid Rs. 19,990/- vide invoice no. 3709 dated 19.03.209 and the Complainant has filed document to that effect. It is also submitted by the Complainant that 2 to 3 days after its purchase, the alleged mobile handset showed some defects like battery problem and did not function properly, for which he deposited with the O.P.No.1, who after 7 days keeping with him, returned the said mobile being repaired, but after 7 days, the said mobile showed the previous defects alongwith some additional defects like touch screen, as such he again contacted with O.P. No. 1 and as per his suggestions, complainant left his mobile for about 7 days and after 7 days, on contact with the O.P. No. 1, he replied that the mobile handset has not yet received from the O.P. No. 2 but returned the mobile handset on May 2019 disclosing that the alleged mobile is having inherent defects. 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 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 a expert opinion nor obtained any evidence from their channel partner i.e. O.P.No.1 and since the O.P. No.1 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.In this connection, we have fortified with the Judgement of Hon’ble National Commission in the case between Urban Improvement Trust, Bikaner, Rajasthan Vrs Babu Lal and Another 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, as such the contentions of the O.P. No. 2 was taken into consideration 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. The allegations of the Complainant regarding the fact that after some days of its repair, it showed the previous defects alongwith some additional 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 strong and vital.
- Further, the defects were occurred during the warranty period though the mobile handset was used for 2 to 3 days s, which was repaired by the O.P. No. 1, but the same defects were again persisted alongwith some additional defects even after of its repair 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 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, for which the alleged mobile handset reiterated its previous defects alongwith some additional defects 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 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 overlooking the service being not provided by their channel partner and miserably failed to make any contradiction to the effect that of existence of any defects.
- 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, immediately, 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 were no authorized service center of O.P. No. 2, as such the customers who purchase 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, which is not permissible in the eye of law.
- 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, 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. 19,990/- and also to pay Rs. 3,000/- towards compensation 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 handset shall carry interest @ 10% p.a. from the date of this order till payment. Complainant is directed to handover the alleged handset to O.P. No.2 at the time of compliance of order.
Pronounced in the open Forum on this the 29th day of November, 2019. Issue free copy to the parties concerned.
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