1. The brief fact of the case of complainant is that on 27.05.2019 she purchased one Redmi Note 7 mobile handset from O.P.No.1 bearing model no. 3/32 (black) having IMEI No. 861067040953899 and paid Rs. 10,800/- vide invoice no. 33 dated 27.05.2019 with one year warranty.  It is alleged that two months after its use, the mobile handset exhibited display and hanging problem, for which she deposited with the O.P.No.1, who after one month keeping the said mobile handset with him, replied to come after 15 days, as the same has not been received from O.P. No. 2 and after 15 days, O.P. No.1 returned the mobile handset being repaired fully.  It is further alleged that since the alleged handset exhibited its previous defects additional to battery backup problem, the O.P. No. 1 without providing service only suggested to contact with O.P. No. 2.  Thus being harassed, 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. 50,000/- and Rs. 10,000/- towards compensation and costs to him.

2. On the other hand, the O.P. No. 1 & 2 though received the notice of this Fora, did not choose to appear in this case, nor filed their respective counters / written versions 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 every opportunities to hear from both of them.

3. That one Xiaomi Technology Ind. Pvt. Ltd., being manufacturer of the alleged product, appeared through their Ld. Counsel and filed an application for adding them as necessary party to the present case.  Considering their petition and submissions, we added them as necessary party as O.P. No. 3 vide our order no. 06 dated 17.01.2020.  They also filed counter versions admitting the purchase of alleged product by the complainant but denying all other allegations contending that the complainant never approached them regarding any defects and asked for any service.  Further it is contended that the allegations of complainant are all about only against the O.P. No. 1 i.e. the seller of the product and they have not availed any opportunity for inspection of the alleged products.  It is also contended that since the complainant has not produced any report to prove her allegations as per Section 13(1)(c) of Act, 1986, as such they do not have liability  and with other contentions, they have prayed to dismiss the case.

4. Complainant has filed certain documents to prove her allegations, whereas the O.P. No. 3 did not choose to file any documents in support of the contentions.  Heard from the A/R of respective parties.  Perused the case record and material documents available therein.

5. It is documentary fact that on 27.05.2019, complainant purchased the Redmi Mobile from the O.P. No. 1 vide no. 33 for Rs. 10,800/- bearing IMEI No. 861067040953899.  Complainant filed document to that effect.  The allegations of complainant is that two months after its use, the mobile handset exhibited display and hanging problem, and on many occasions, she found some additional defects, and since she did not get any proper service, being harassed mentally, physically and financially, she filed this case.Whereas the contentions of O.P. No. 3 is that since the complainant never approached them regarding any defects and for any service, and has not produced the expert opinion as required u/s 13(1)(c), as such showing their no liability, they prayed to dismiss the case.

6. Since the O.P. No.1 did not appear throughout the proceeding, we lost opportunities to come to a conclusion that whether the alleged mobile handset was properly repaired through the expert of the O.P.No.3 ?  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 adduce cogent evidence either from an expert opinion nor obtained any evidence from their channel partner i.e. O.P.No.1 to prove that there is no defects in the alleged handset.  Since the O.P. No.1 did not challenge the versions of complainant, even though he received the notice from the Fora.  As such the allegations made by the complainant became unrebuttal from the side of the O.P. No. 1.  

7. 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 to the effect that the defects were not in their knowledge.  However, the O.P.No.3 has admitted that that the alleged mobile handset in dispute was manufactured by them which was sold by the O.P. No. 1 to the complainant.  The allegations of the complainant regarding the fact that after some days of its repair, it showed the previous defects alongwith some additional defects, 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 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 allegations of complainant became strong and vital.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 Commission has held that “Unrebutted averments shall be deemed to be admitted.”

8. Further, the defects were occurred during the warranty period though the mobile handset was used for two months, which was repaired by the O.P. No. 1, but the same defects were persisted even after of its repair by O.P. No.1, as such the complainant prayed for the cost of the mobile from the O.Ps.  We feel, the alleged mobile handset must have repaired by the O.P. No. 1 through the local technicians but not by any authorized technicians of O.P.No.3, for which the alleged mobile handset reiterated its previous defects alongwith some additional defects and 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.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 of existence of the defects. 

9. We feel, had the O.P. No.1 rectified the alleged defects occurred in the mobile handset through any authorized service center set by the O.P.No.3, then the defects of the mobile handset could have easily and properly rectified.  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.3 for providing better service to their genuine customer.  In the present case, since there is no authorized service center in the present locality, the customers who purchase the products of the O.P.No.3 from the O.P. No. 1 must have depended on the O.P.No.1 to avail proper service.  But without providing better service, as per the norms of the company, the O.P.No. 1 indulged himself in corrupt practice of selling the products and carry out the defects as per his own choice by the help of unauthorized technicians, which is not permitted in the eye of law.

10. Further lying the said mobile handset for about more than one and half years without any use, in our view, is of no use.

11. 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 mental agony and physical harassment, for which the complainant was compelled to file this case incurring some expenses.  Considering her sufferings we feel a sum of Rs. 5000/- and Rs. 2000/- towards compensation and costs 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. 10,800/- to the complainant alongwith Rs.5,000/- towards Compensation and Rs. 2,000/- towards cost of litigation to the Complainant, within one month from the date of receipt of this order, failing which, the  cost of handset amount shall carry interest @ 10% per annum from the date of this order till payment.

        Since no specific allegations is made out against the O.P. No. 2, no order against them.

        Pronounced in the open Forum on this the 4^th day of September, 2020.

        Issue free copy to the parties concerned.