1. The brief fact of the case of complainant is that on 07.09.2019 he purchased one Samsung Mobile handset from O.P.No.1 bearing model no. Samsung Galaxy A 50 having SM No. A505FZBDNS (Blue), Ch. No. R37M3A14Y912C3 and IMEI No. 356129100317079 and paid Rs. 20,000/- vide invoice no. 11161 dated 07.09.2019.  It is alleged that after one month of its use,  the said mobile handset showed defects like poor battery backup problem with charge of 8 hours, for which he deposited the alleged handset with the O.P.No.1, who after one month suggested to come again after 15 days, as the mobile handset has not yet been received from the O.P. No.2 and after 20 days returned the mobile being repaired, but after 2 months, the said mobile showed the previous defect alongwith some additional defects like instant hanging and network problem and on contact with the O.P. No.1 who suggested that the alleged handset having manufacturing defects. Thus alleging deficiency in service on the part of the O.Ps, complainant filed this case with a prayer to direct the O.Ps to refund the cost of mobile handset and Rs. 30,000/- and Rs. 5,000/- towards compensation and costs of litigation.

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

3. The O.P. No. 2 is represented through their Ld. Counsel, who filed their written statement admitting the sale of alleged mobile handset to 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 despatch to the market.  Further they contended that the Complainant has not produced any expert opinion report to prove his allegations an 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.  Perused the record and materials documents available in the record.

5. There is no dispute regarding sale of the alleged mobile handset to the complainant from the O.P.No.1 bearing model no. Samsung Galaxy A 50 having SM No. A505FZBDNS (Blue), Ch. No. R37M3A14Y912C3 and IMEI No. 356129100317079 and paid Rs. 20,000/- vide invoice no. 11161 dated 07.09.2019 alongwith warranty certificate and complainant filed document to that effect.  Complainant also submits that after one month of its use, the said mobile handset showed defects like poor battery backup problem with charge of 8 hours, for which he deposited the alleged handset with the O.P.No.1, who after one month suggested to come again after 15 days, as the mobile handset has not yet been received from the O.P. No.2 and after 20 days returned the mobile being repaired, but after 2 months, the said mobile showed the previous defect alongwith some additional defects like instant hanging and network problem and on contact with the O.P. No.1 who suggested that the alleged handset having manufacturing 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 or authorized technician 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 choose to adduce any cogent evidence either from an 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 Commission, 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 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 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 is sold to the complainant.  The allegations of the complainant regarding the fact that after two months of its first repair, it exhibited 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 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 mobile handset was used only for one month, which was repaired by the O.P. No. 1, but the same defects were persisted alongwith some additional defects even after of its repair work was carried out 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 but miserably failed to make any contradiction to the effect that of existence of any defects in the alleged mobile. 

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 seen that the customers who purchase the mobile handset of O.P. No. 2 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 with the assistance of local unauthorized technicians, which is not permissible as per law.

9. Hence considering the above discussions, we feel, the complainant deserves to be compensated with compensation and costs for not providing better service by the O.Ps to 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. 5,000/- 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. 20,000/- to the complainant alongwith Rs. 5,000/- towards compensation and Rs. 2,000/- towards costs of litigation within 30 days from the date of receipt of this order, failing which the cost of mobile shall carry interest @ 6% p.a. from the date of order till payment.  Further the complainant is herewith directed to hand over the alleged mobile handset to the O.P.No.2 at the time of comply the order.

        Pronounced in the open Court on this the 30^th day of June, 2021.  Issue free copy to the parties concerned.