1. The brief fact of the case of complainant is that on 07.03.2020 the complainant purchased one Samsung Mobile bearing model no. A-51 6/128 (Prism Crush Blue) having IMEI No. 354464116429606 from the O.P.No.1 vide invoice no. 1670 dated 07.03.2020 and paid Rs. 23,990/-.  It is alleged that after 10 days, he found defect hanging problem and battery backup problem, for which he deposited the handset with O.P.No.1, but after 25 days of its inspection returned the handset with suggesting its fully repair and not of replacement.Further it is alleged that after using the same for about 10 to 15 days, he found the previous defects alongwith some additional defects like noise sound coming out from the handset, for which he again contacted with the O.P. No. 1, who kept the mobile for about 15 days and replied 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 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.

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

3. The O.P. No. 2 is represented through their Ld. Counsel, who filed their counter in shape of written version admitting the manufacture of the alleged product so also purchase of alleged mobile handset by the complainant from the O.P. No. 1 but denied all other facts contending that they have contended 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, so also nor the complainant or the O.P. No.1 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 dispute, have filed any documents.  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 purchase of the alleged mobile handset by the complainant from the O.P.No.1 bearing model no. A51 6/128 (Prism Crush Blue) having IMEI No. 354464116429606 from the O.P.No.1 vide invoice no. 1670 dated 07.03.2020 and paid Rs. 23,990/- and received warranty certificate and the complainant has filed documents to that effect.  It is also submitted by the complainant that after 10 days, he found defects of hang problem and battery backup problem, for which he deposited the handset with O.P.No.1, but after 25 days of its inspection returned the handset with suggesting its fully repair and not of replacement and after using the same for about 10 to 15 days, he found the previous defects alongwith some additional defects like noise sound coming out from the handset, for which he again contacted with the O.P. No. 1, who kept the mobile for about 15 days and replied that the alleged mobile is having manufacturing defect.  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 having any defects as alleged by the complainant.  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 though the O.P. No.1 received the notice from this Fora, did not challenge the versions of complainant, as such the allegations made by the complainant became unrebuttal by the O.Ps.  In this connection, we have fortified with the verdicts 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.”

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, as such the contentions of the O.P. No. 2 was taken into consideration to the effect 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 which has sold by O.P. No. 1 to the complainant.  The allegations of the complainant regarding the fact that after its repair, he found defects in sound system, for which he deposited the same with the O.P.No.1, who after its inspection returned the handset with suggesting as a manufacturing defect, was well corroborated by the complainant 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.

7. Further, the defects were occurred during the warranty period though the mobile handset was used for about 10 days, which was supposed to be repaired by the O.P. No. 1 in assistance with the authorized technicians of the O.P.No.2,  but without providing his best service, the O.P.No.1 only suggested that the alleged mobile handset is having manufacturing defect, which is not permissible in the eye of law.  As it is the first and foremost duty of the O.P. No. 1 to provide his best services to his genuine customer, and had the O.P. No. 1 provided the proper service towards repair of the alleged mobile handset than the defects in the mobile handset could have easily rectified and the complainant would not have suffered 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.2contending 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 but miserably failed to make any contradiction regarding existence of any defects.

8. 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 common phenomena of the general public, 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.  We feel O.P. No. 1 might have repaired the alleged handset through the local technicians but not by the authorized service engineer of the O.P. No. 2 and without providing better service as per the norms of the company, the O.P.No. 1 indulged himself in corrupt practice of his business, which is bad in law.

9. Considering the above discussions, we feel, the complainant deserves 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. 23,990/- to the complainant and also directed to pay Rs. 3,000/- towards compensation and Rs. 2,000/- for costs of litigation to the complainant within one month from the date of receipt of this order, failing which, the cost of alleged handset shall carry interest @ 10% per annum from the date of this order till payment.  Further the complainant is 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 16^th day of November, 2020.  Issue free copy to the parties concerned.