1. The brief fact of the case of complainant is that on 08.02.2019 he purchased one Samsung Mobile handset from O.P.No.1 bearing SM – G570F/DD bearing IMEI No. 358213/08/095729/0 and paid Rs. 13,500/- vide invoice no. 198 dated 08.02.2019 alongwith warranty certificate.  It is alleged that 4 month after it’s use, the said mobile handset showed several defects like touch screen / battery / instant hanging / overheat performance in its body part and did not function properly, since there is no service center in the locality, he deposited the alleged handset with the O.P.No.1, who after one month keeping with him returned the said mobile handset by saying that the mobile was repaired, but after 2 months, the said mobile showed the previous defect alongwith some additional defects like discolour in the chamber.That on approach to O.P.No.1 regarding the existence of further defects, the O.P.No.1, who kept the mobile for about 15 days and returned the same, but the alleged handset reiterated its defects and on approach to O.P. No. 1 who returned the handset without any repair or replacement.Thus alleging unfair trade practice and deficiency in service on the part of the O.Ps, complainant filed this case with a prayer to direct the O.Ps to refund the cost of mobile handset and to pay Rs. 30,000/- and Rs. 10,000/- towards compensation and costs of litigation to him.

2. 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 lost every opportunities to hear from him.

3. On the other hand, the O.P. No. 2 is represented through their Ld. Counsel, who filed their counter in shape of written statement admitting the purchase of alleged mobile handset by the Complainant but denied all other facts contending 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, 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 SM – G570F/DD bearing IMEI No. 358213/08/095729/0 and paid Rs. 13,500/- vide invoice no. 198 dated 08.02.2019 alongwith warranty certificate and Complainant has filed document to that effect.  The allegations  of Complainant is that 4 months after its purchase, the alleged mobile handset showed some defects like touch screen / battery / instant hanging / overheat performance in its body part and did not function properly, since there is no service center in the locality, he deposited the alleged handset with the O.P.No.1, who after one month keeping with him returned the said mobile handset by saying that the mobile was repaired, but after 2 months, the said mobile showed the previous defect alongwith some additional defects like discolour in the chamber.  That on approach to O.P.No.1 regarding the existence of further defects, the O.P.No.1, who kept the mobile for about 15 days and returned the same, but the alleged handset reiterated its defects and on approach to O.P. No. 1 who returned the handset without any repair or replacement.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 properly repaired through the expert technician of the O.P.No.2 ?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 choose to adduce any cogent evidence either from a expert opinion nor obtained any evidence from their channel partner i.e. O.P.No.1 and the O.P. No.1 though received the notice from this Fora, 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 by the Judgement 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.2 contains any truth or not, as such the contentions of the O.P. No. 2 was taken into consideration regarding to 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 which was sold to the Complainant.  The allegations of the Complainant regarding the fact that after two month of its first repair, it exhibited the previous defects alongwith some additional defects, 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 adduce 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 4 months, which was repaired by the O.P. No. 1, but the same defects were persisted alongwith some additional defects even after of its repair was made 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.2, for which the alleged mobile handset reiterated its previous defects alongwith some additional defects 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 to the effect that of existence of any defects in the mobile. 

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 in the present locality, though there is no authorized service center is exist, the customers who purchase the mobilehandset of O.P. No. 2 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 defect as per his own choice by the help of local unauthorized technicians, which is not permissible as per law.

9. Further lying the said mobile handset for a long period without any repair and use, in our view, is of no use.

10. 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. 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. 13,500/- to the Complainant alongwith Rs. 3,000/- towards compensation and Rs. 2,000/- towards costs of litigation within one month from the date of receipt of this order, failing which the cost of mobile shall carry interest @ 10% p.a. from the date of 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. 

Pronounced in the open Forum on this the 17^th day of March, 2020.  

Issue free copy to the parties concerned.