1. The brief fact of the case of complainant is that on 30.04.2019 he purchased one Samsung Mobile handset from O.P.No.1 bearing model no. S 10 Prism Blue, IMEI No. 354622101090556 and paid Rs. 67,000/- vide invoice no. 635 dated 30.04.2019 alongwith warranty certificate.  It is alleged that 1 month after it’s purchase, the said mobile handset showed some defects like touch screen / battery / overheat performance in its body part, for which he deposited alleged handset with the O.P.No.1, who after 1 month keeping with him, returned the said computer with a false belief that the mobile was repaired, but after 2 to 3 months, the said mobile showed the previous defect alongwith some additional defects like instant hanging and net problem.On approach to O.P.No.1 regarding the existence of further defects and handed over the same to him.That on September, the O.P. No.1 returned the mobile but to no effects. Finding no otherway, he deposited the handset with the new set up service center of O.P. No. 2 who registered the same vide no. 4299756375 dated 19.02.2020, but after inspection he disclosed 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. 10,000/- towards compensation and costs of litigation to him.

2. 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.

3. 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 sale of alleged mobile handset to 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, so also neither the Complainant nor the O.P.No.1 have intimated them regarding any defect, as such, with contentions, showing their no liability, they prayed to dismiss the case against them.

4. Complainant filed certain documents like copy of invoice bill no. 635 dated 30.04.2019 and bill issued by Samsung Care Center vide bill no. 4299756375 dated 19.02.2020 in support of his allegations, whereas the O.P. choose to file only Samsung Care Center vide bill no. 4299756375 dated 19.02.2020 in support of their contentions.  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. S 10 Prism Blue, IMEI No. 354622101090556 and paid Rs. 67,000/- vide invoice no. 635 dated 30.04.2019 alongwith warranty certificate.  It is alleged that 1 month after it’s purchase, the said mobile handset showed some defects like touch screen / battery / overheat performance in its body part, for which he deposited alleged handset with the O.P.No.1, who after 1 month keeping with him, returned the said computer with a false belief that the mobile was repaired, but after 2 to 3 months, the said mobile showed the previous defect alongwith some additional defects like instant hanging and net problem.  On approach to O.P.No.1 regarding the existence of further defects and handed over the same to him.That on September, the O.P. No.1 returned the mobile but to no effects.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?As such the allegations of complainant are well proved to the effect that the O.P. No.1 has not provided any proper service to him.

6. Further complainant has filed the copy of bill raised by the authroised service center of O.P. No. 2 vide no. 4299756375 dated 19.02.2020, so also the O.P. No. 2 has filed the same copy in support of their contentions.  From which it is crystal clear that the alleged mobile handset suffers from defects during he warranty period and the defects could not rectified.

7. 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 connections, 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.”   
    
8. 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 regarding 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 which was sold by O.P. No. 1 to the complainant.  The allegations of the complainant regarding the fact that after some days after 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.

9. Further, the defects were occurred during the warranty period though the mobile handset was used for 1 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 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 have not gone through the documents filed by the complainant and intentionally intended 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.

10. 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 at the time of its first deposit with him, 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 is an authorized service center is set up newly, but is unable to provide better service to the customers, 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 by the help of unauthorized technicians, which is not permissible in the eye of law.

11. 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. 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. 67,000/- to the complainant alongwith Rs. 5,000/- 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 purchase 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 9^th day of November, 2020.

        Issue free copy to the parties concerned.