1. The brief fact of the case of complainant is that on 19.06.2020 he purchased 7 nos. of Rollick ice cream for Rs. 315/- @ Rs. 45/- for each.  It is alleged that during consumption, complainant found that each cup contains very less quantity so also the ice cream are very sourness in quality and smell coming out of it and while contacted with respective O.Ps and demanded for its replacement or its cost, but did not get any result.  Thus being exploited by the O.Ps and with allegations he filed this case claiming for refund of Rs. 315/- and Rs. 1,00,000/- and Rs. 10,000/- towards compensation for causing mental agony and financial loss and costs of litigation and also prayed to direct the O.Ps to deposit Rs. 1,00,000/- in the Consumer Welfare Fund.

2. O.P. No.1 appeared and filed his counter version admitting the sale of alleged products to the complainant for Rs. 315/- @ Rs. 45/- for each cup of ice cream and dispute arose between the complainant and the O.Ps, but denied the allegations of complainant contending that he being only a retailer on commission basis under the rest O.Ps, and as per complaint of complainant, has suggested the complainant to contact with the rest O.Ps and also he contacted with the O.P. No.2 requested to receive back the remaining ice creams lying with him  but the O.P. No.2 remain silent for about 4 months and the O.P. No.2 assured the complainant to hand over one family pack, but did not replace the same and till October, 2020 they paid only deaf ears and since he is only retailer on marginal commission, showing his no liabilities, he prayed to dismiss the case against him.

3. O.P. No. 2 appeared and filed his counter version admitting that he is the distributor of the alleged ice creams sold to the complainant. But denied the allegations contending that neither complainant nor O.P. No.1 have informed him about the sale of alleged products.  Further contended that due to lock down for Covid – 19, his shop was remained closed and complainant never contacted with him and since there is no expert opinion report regarding the quality of the alleged ice creams, the liability cannot be conferred on him.  Further contended that he has already deducted an amount of Rs. 576/- as per claim of O.P. No.1 vide no. 93 dated 09.05.2020 and O.P. No.1 without returning the alleged products, has sold the same to the complainant and with other contentions, he prayed to dismiss the case.

4. Parties have filed their respective documents in support of their submissions.  Perused the case record and material documents available therein.

5. During the proceeding, since the notice sent to O.P. No. 2 was returned back unserved and as per petition dated 10.11.2020 filed by the complainant, this Commission appointed a Commission to enquire into the matter.  As per direction of this Commission, the appointing Commission after due enquiry submitted his report, which brought the fact of the subject matter to the front line.
    
6. From the documents available in the record, it is ascertained that complainant purchased 7 nos. of Rollick Ice Cream from the O.P. No.1 for Rs. 315/- @ Rs. 45/- per each cup of ice cream, who is the retailer under the rest O.Ps.  The allegations of complainant is that during consumption of alleged products, he found less quantity in each cup and quality in not good conditions, while on demand for replacement or the costs of alleged products, the O.P. No.1 contacted with the O.P. No.2 who in turn replied that since lock down is prevailed, he neither replace nor refund the costs of the products and the said versions are also admitted by the O.P. No. 1 & 2 in their counter version.  Though the O.P. No.2 challenged the version of complainant stating that since the complainant has not filed any expert opinion report regarding the quality of the alleged ice cream cups, as such the liability cannot be saddled with them. 
   
   We have gone through the documents filed by the complainant and ascertained that the complainant miserably failed to file any documentary evidence to prove his allegation regarding the quality of the alleged ice creams, which is highly essential under the provision of section 13(1)(c) of the Act, 1986.In this connection, we would like to make it clear that if any defects occurred in the any goods and the same cannot be determined in the naked eye, in that occasion, the sample of such goods shall be tested and analyzed through an appropriate laboratory.But in the instant case, the complainant has not filed any laboratory report nor also prayed for any such test. Hence without any expert opinion report, the quality of the alleged products cannot be ascertained at present and the allegations of complainant cannot be believable to that effect.

7. Further the allegation of complainant is that during consumption of alleged products, he found less quantity in each ice cream cup.  Whereas, the said versions never been challenged by any of the O.Ps, rather the O.Ps have not uttered a single word to that effect.  Further complainant filed the alleged ice cream cups before this Commission.  We have ascertained that that the cups are properly sealed one and the quantity of each cups are different from each others.  It is ascertained that quantity of some cups are too less, which is clearly visible in the naked eye. Hence it cannot be disbelievable that the quantity of the alleged cups are as per the quantity mentioned in the body of the cups.  Hence we feel, the O.P. No.2 has distributed the alleged ice cream cups, which are manufactured by the O.P. No.3.  Since the O.Ps have not raised any dispute regarding the quantity of the alleged products, the allegations of complainant remained unchallenged and unrebuttal.  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.”   
   
   Further we feel, during such distribution, it was duty of O.P.No.2 to ascertain about such facts and must brought the facts into the knowledge of the O.P.No.3, so also he should return the alleged products to the O.P. No.3 for its proper verification.But without doing so, the O.P. No.2 distributed the alleged products to the O.P. No.1 for his personal gain, which is not justified.

8. Further as per Enquiry Commission’s report, it is ascertained that the O.P. No. 2 has refunded the costs of alleged products to the O.P. No. 1, which is after lapse of 5 to 6 months that too after filing of present case by the complainant, but miserably failed to take back the alleged products from the shop of O.P. No.1.  The Enquiry Commission’s report also reveals that the O.P. No.1 has not sold further any such products, when he receives complaint from the complainant, as such the liability cannot be conferred upon the O.P. No. 1.

9. Though the allegations regarding quality of the alleged products cannot be determined without any expert report, but the allegations regarding quantity is not disbelievable.  And for such act of the O.P. No. 2 & 3, complainant must have faced some sort of mental agony, financial loss as well as physical harassment, which compelled the complainant to seek redress before this Commission. Hence this order.

ORDER

The complaint petition is allowed in part.  The O.P. No.2 is herewith directed to refund the costs of the alleged products i.e. Rs. 315/- to the complainant alongwith compensation of Rs. 3,000/- towards causing mental agony and financial loss and Rs. 2,000/- towards costs of litigation within one month from the date of receipt of this order, failing which the costs of products shall carry interest @ 10% p.a. from date of purchase i.e. 19.06.2020 till payment.   Further the O.P.  No.2 is at liberty to recover the entire paid amount from the O.P. No.3, if he desires to do so.

Pronounced the order in the open Court on this the 09^th  day of July, 2021.  Issue free copy to the parties concerned.