1. The brief fact of the case of complainant is that on 15.10.2020  he purchased one Samsung Mobile handset of O.P. No.3 from O.P.No.1 bearing model no. SM – A 217F (6/64) having IMEI No. 355372110599556 and 355373110599554 vide invoice no. 15002 dated 15.10.2020 and paid Rs. 16,499/- alongwith warranty certificate.  It is alleged that after a week of use, the said mobile handset showed several defects like audio problem for which incoming and outging voice facilty became very uneasy to hear and also overheat performance in its body part and did not function properly for which he handed over the mobile handset to O.P. No.2 through the O.P. No.1 who suggested to come after a week and after a week he replied that the said defect comes under paid service  and on approach to lodge a claim with the O.P. No.3, the O.P. No.2 did not do so and returned the said mobile. Further alleged that while consult with the O.P. No. 1 for its replacement or to refund the costs of mobile, but O.P. No.1 only suggested to contact with the O.P. No. 2 & 3 and since then, the alleged mobile handset is lying unused.  Thus showing 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 mobile handset and to pay Rs. 50,000/- and Rs. 5,000/- towards compensation and costs.

2. The O.P. No. 1 though received the notice of this Commission but did not choose to appear in this case, nor filed the counter 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 lost every opportunities to hear from him.
    
3. On the other hand, the O.P. No. 2 & 3 represented through their common Ld. Counsel, who filed their counter version 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 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 showing their no liability, they prayed to dismiss the case against them.

4. Parties have filed their supportive documents.  Heard from the complainant as well as from the A/R for O.P.No. 2 & 3.  Perused the documents and materials available in the record.

5. In the instant case, there is no dispute regarding sale of alleged mobile handset to the complainant by the O.P.No.1 bearing model no. SM – A 217F (6/64) having IMEI No. 355372110599556 and 355373110599554 vide invoice no. 15002 dated 15.10.2020 and paid Rs. 16,499/- alongwith warranty certificate and complainant has filed document to that effect.  Complainant also submits that after a week of use, the alleged mobile handset showed defects like audio problem and overheat performance in its body part and did not function properly for which he handed over the mobile to the O.P. No.2 through the O.P. No.1 and since the O.P. No. 1 did not appear throughout the proceeding, we lost every opportunities to hear from him so also to come to a conclusion that whether the alleged mobile handset was handed over to him or not and also whether he sent the same to the O.P. No.2 or not ? Though the O.P.No. 3 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 authorized service center i.e. O.P.No.2 to prove that whether the alleged mobile handset was sent to him for any repair or not. So also the O.P. No. 1 though received the notice from this Commision, 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 verdicts 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.3 contains any truth or not, as such the contentions of the O.P. No. 3 was taken into consideration regarding to the fact that the defects were not in their knowledge.  However, the O.P.No.3 has admitted that the alleged mobile handset in dispute was manufactured by them which was sold to the complainant. The allegations of the complainant regarding the fact that after a week of its use, the alleged mobile handset exhibited the audio problem and overheat performances was well corroborated by him at the time of hearing.  Though the O.P.No.3 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 and in our view, such type of practice adopted by the O.Ps is clearly established the principle of deficiency in service.Though the submissions of complainant was challenged by the O.P.No.3 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.3 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.

7. We feel, since the alleged mobile handset is under warranty at the time of cause of action, hence, it is the prime duty on the part of the O.P. No.1 & 2 to provide better service to the complainant, being their genuine customer.  Further it was the duty of O.P.No.2 on the day when he received the alleged mobile handset from the complainant, immediately, he was supposed to intimate the O.P.No.3 for providing better service to their genuine customer as the alleged handset was suffers from defects after a week of its purchase.  But without providing better service, as per the norms of the company, the O.P.No. 2 only suggested to contact with the O.P. No.3, whereas it is the duty of the O.P. No. 2 to receive the mobile handset and sent it to the O.P. No. 3 either for its replacement or refund of costs, but the same has not been done by the O.P. No. 2 and he indulged himself in corrupt practice of providing improper service, which is not permissible as per law. 
    
8. Further lying the said mobile handset for a long period without any repair and use, in our view, is of no use.
    
9. Hence considering the above discussions, we feel, the complainant deserves to be compensated with adequate compensation and costs for not 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.3 being the manufacturer of the alleged product is herewith directed to refund the cost of the alleged mobile handset i.e. Rs. 16,499/- to the complainant in lieu of the alleged handset and also to pay Rs. 5,000/- towards compensation and Rs. 2,000/- towards costs of litigation within 45 days from the date of receipt of this order, failing which the cost of mobile shall carry interest @ 10% p.a. from the date of purchase i.e. from 15.10.2010 till payment.

        Pronounced in the open Court on this the 26^th day of May, 2021.

         Issue free copy to the parties concerned.