1. The brief fact of the case of complainant is that on 26.04.2019 he purchased one Samsung mobile of O.P. No. 2 having model no. A50 bearing IMEI No. 356129102445133 from the O.P. No. 1 vide invoice no. 11610 dated 26.04.2019 for consideration of Rs. 23,000/- which was insured with the O.P. No. 3 vide policy no. OG-20-2423-9931-00002865 valid from 26.04.2019 to 25.04.2020 for consideration of Rs. 2,360/-.  It is submitted that after using the said handset for about 4 months, the alleged product exhibited defects like display problem and did not function properly, for which he submitted the mobile handset to the O.P. No. 1 who keeping the same after 15 days returned the handset being repaired.It is also alleged that after using the same for about 10 to 15 days the previous defects reiterated alongwith some additional defects like battery charging problem and overheat performance all over the body part, for which he again submitted the handset to the O.P. No. 1 for its proper repair, but since the no proper repair work carried out, O.P.No. 1 suggested complainant that since the alleged handset is insured with O.P. No. 3, as such the O.P. No. 2 refusing to replace the same.Since not getting no favourable response andbeing harassed, he filed this case claiming the costs of mobile handset alongwith Rs. 50,000/- 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 sale of alleged mobile handset to the complainant but denied all other facts contending that all the products of O.P. No. 2 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 handset are not in their knowledge, so also nor the complainant nor the O.P. No.1 intimated them regarding any defect, as such showing their no liability, they prayed to dismiss the case against them.

4. O.P.No.3 appeared through their Ld. Counsel and filed their written version admitting the insurance coverage of the alleged handset made by them, but denied the allegations contending that the defects in the alleged mobile handset is not in their knowledge and no claim was lodged with them for any claim and with other contentions, showing their no liabilities, they prayed to dismiss the case.

5. Except Complainant no other parties to the present disputes, have filed any documents.  Complainant filed copy of invoice and insurance copy showing coverage of alleged product.  Heard from the Complainant as well as from the A/R for O.P. No. 2 & 3.  Perused the case record and documents available in the record.   

6. In the instant case, there is no dispute regarding sale of alleged mobile handset to the Complainant alongwith with insurance coverage and Complainant filed documents to that effect.  The allegations of complainant is that that the alleged product was exhibited several defects from time to time and on approach to the O.P. No.1 for replacement of the alleged mobile handset, who carried out repair works for twice, have suggested that due to insurance coverage, the O.P. No. 2 denying for replacement.Whereas the O.P. No.2 contended that the defects were not in their knowledge and neither O.P. No.1 nor complainant intimated them regarding such defects.Whereas the O.P. No. 3 contended that since the defects were not brought out to their knowledge and no claim was lodged, therefore, they have no deficiency in service.

7. It is ascertained from the record that the O.P. No. 1 who sold the alleged mobile handset to the complainant, being their authorized retailer / channel partner, has also taken the coverage of insurance against the alleged handset on behalf of the O.P. No. 3, which clearly evident that the O.P. No.1 is the agent for both the O.P. No. 2 & 3.  Firstly it is the duty of the O.P. No. 1 to the intimate about the defects of the alleged product as and when he received the handset from the complainant for its repair, simultaneously, it is also the duty of the O.P. No. 1 to intimate the said fact the O.P. No. 3 as the handset is under insurance coverage.   In our view since the O.P. No. 1 has not informed the rest O.Ps about the status of the alleged handset, the present dispute arises.  Further it is ascertained that though the alleged mobile handset was repaired two times, but the defects reiterated from time to time.  Though the O.P. No. 2 & 3 have challenged the same stating that the defects occurred in the alleged product are not in their knowledge, but did not choose to contradict the versions of complainant by producing the documentary evidence from the channel partner i.e. O.P. No. 1, as such the averments made by the Complainant became unrebuttal by the O.P.  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.”   

8. Further the allegations of the complainant regarding the fact that after its repair, he found defects in the alleged mobile handset time and again, was well corroborated by him at the time of hearing.   Further it was the duty of the O.P. No.1 to inform the O.P. No. 3 about the defects occurred in the alleged handset as the same is validly insured with the O.P. No. 3.  Further, the defects were occurred during the valid period of insurance coverage though the mobile handset was used for 4 months, which was also repaired by the O.P. No. 1, but the defects could not solved.    Further it is settled principle of law that if any product exhibits defects from the time to time, than presumption can be taken for inherent defects.  In our view, since the alleged product is validly insured with the O.P. No. 3, it is the duty of O.P. No.3 to reimburse the insured amount to the complainant. 

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 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. 10,000/- 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 insurer of the alleged mobile handset is herewith directed to pay the cost of the alleged mobile handset i.e. Rs. 23,000/- alongwith compensation of Rs. 10,000/- towards causing mental agony, physical harassment and Rs. 2,000/- towards costs of litigation to the complainant, by their channel partner i.e. O.P. No. 1, within 30 days from the date of receipt of this order, failing which, the cost of product i.e. Rs. 23,000/- shall carry interest @ 10% p.a. from the date of this sale of alleged product i.e. 26.04.2019 till payment. 

Pronounced the order in the open Court on this the 5^th day of September, 2022.  Issue free copy to the parties concerned.