1. The brief fact of the case of complainant is that on 27.05.2020 the complainant purchased one Samsung Mobile bearing model no. A505 4/128 (Violet) having IMEI No. 351595114799194 from the O.P.No.1 vide invoice no. 188 dated 27.05.2020 and paid Rs. 20,999/- and received warranty certificate.  It is alleged that after a week, he found defect on battery/ instant hanging / overheat performance in its body part, for which he deposited with the O.P.No.1, who after a week of its inspection, returned the handset with suggesting its fully repair and not of replacement.  Further it is alleged that after using the same for about 10 to 12 days, he found the previous defects alongwith some additional defects like net problem and discolour in the chamber, for which he again contacted with the O.P. No. 1, who kept the mobile for about 15 days replied that since the mobile has not yet been received from O.P. No. 2, it will take again 7 days.  After receiving the said mobile handset, he found the previous defects still exists, thus the complainant again contacted with the O.P. No. 1, who replied that the alleged mobile is having manufacturing defects.  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. 20,000/- and Rs. 5,000/- 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 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 they have contended 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. A505 4/128 (Violet) having IMEI No. 351595114799194 from the O.P.No.1 vide invoice no. 188 dated 27.05.2020 and paid Rs. 20,999/- and received warranty certificate and the complainant has filed documents to that effect.  It is also submitted by the complainant that after a week, he found defects in battery/ instant hanging / overheat performance in its body part, for which he complained with the O.P.No.1, who after a week, returned the handset, but after receive mobile handset, he found the same problems exhibited alongwith some additional problems like net connection and discolour in the chamber and on approach to O.P. No. 1 who suggested of having manufacturing defect. 
   
   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 Fora, 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 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 has sold by O.P. No. 1 to the complainant.  The allegations of the complainant regarding the fact that after its repair by O.P. No.1, he found defects like discolor in the chamber and net problem, for which he deposited the same with the O.P.No.1, who after its inspection returned the handset with suggesting as manufacturing defect, 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.
    
7. Further, the defects were occurred during the warranty period though the mobile handset was used only for a week, 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 manufacturing defect, which is not permissible in the eye of law as well as the terms of O.P. No. 2.  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 proper service towards repair of the alleged mobile handset 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 proper 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 through the local unauthorized technicians but not by the authorized service engineer 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. 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. 3,000/- 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. 20,999/- to the complainant along with compensation of Rs. 3,000/- and Rs. 2,000/- towards costs of litigation within 45 days from the date of receipt of this order, failing which, the said cost of mobile handset shall carry interest @ 10% per annum from the date of this order.  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 10^th day of November, 2020.  Issue free copy to the parties concerned.