1. The brief fact of the case of complainant is that on 27.05.2021 she purchased one Samsung mobile of O.P. No. 2 bearing no. M 30 having IMEI No. 355696/11/663332/8 and 355697/11/663332/6 from O.P. No.1 vide invoice no. 88 for consideration of Rs. 15,800/- with warranty certificate.  It is alleged that after using the said product for about 1 month, the alleged product exhibited defects like touch screen / battery / overheat performance in its body part did not function properly, for which she submitted the mobile handset to the O.P. No. 1 who keeping the mobile for about 15 days, returned the same, but after using the same for about a week the same reiterated the previous defects and deposit the same with O.P. No. 1, who in the month of August, 2021 returned the alleged product.It is also alleged that on many occasions the said mobile handset exhibited several defects from time to time, thus with other allegations, she filed this case claiming the costs of mobile handset alongwith Rs. 1,00,000/- and Rs. 10,000/- towards compensation and costs from the O.Ps.

2. On the other hand, the O.P. No. 1 though received the notice of this Commission, 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 them for their submissions keeping in view of natural justice, as such, we have lost opportunities to hear from them.

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 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 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 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 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. M 30 having IMEI No. 355696/11/663332/8 and 355697/11/663332/6 from O.P. No.1 vide invoice no. 88 for consideration of Rs. 15,800/- with warranty certificate and complainant filed documents to that effect.It is also alleged that after one month of its use, she found the alleged product exhibited defects like touch screen / battery / overheat performance in its body part did not function properly, for which she submitted the mobile handset to the O.P. No. 1 who keeping the mobile for about 15 days, returned the same, but after using the same for about a week the same reiterated the previous defects and deposit the same with O.P. No. 1, who in the month of August, 2021 returned the alleged product saying that the mobile handset suffers from inherent 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 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 Commission, did not challenge the versions of complainant, as such the averments made by the complainant became unrebuttal by the O.Ps.In this connections, 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 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, was sold by O.P. No. 1 to the complainant.  The allegations of the complainant regarding the fact that after its repair, she found defects in the alleged mobile time and again with a suggestion of having inherent defect, was well corroborated by her 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 wellestablished, 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 one month, 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 inherent 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 i.e. complainant, and had the O.P. No.1 provided the service towards repair of the alleged mobile handset through an authorized service center 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.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 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 seen that since there was no service center of O.P.No.2 at the time of occurrence in the present locality, as such the complainant 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. In this regard, we feel the O.P. No. 1 might have repaired the alleged mobile handset through the local unauthorized 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. Further lying the said handset for a period of about 1 year without any use, in our view, is of no use.
    
10. 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 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 her sufferings, we feel a sum of Rs. 3,000/- towards compensation and Rs. 1,000/- 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. 15,800/- to the complainant within 45 days from the date of receipt of this order alongwith compensation of Rs. 3,000/- towards causing mental agony, physical harassment and Rs. 1,000/- towards costs of litigation, failing which, the costs of product i.e. Rs. 15,800/- 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 Court on this the 5^th day of September, 2022.  Issue free copy to the parties concerned.