JUDGMENT

Shri A.K.Patra,President

1. This Complaint is filed by the complainant named above inter alia alleging deficiency in service and unfair trade practice on the part of the Ops for non replacement of the defective good i.e  Samsung A33(8,128 GB 1EA) mobile phone being manufactured by OP 2  sold to the complainant.
2. The complainant seeks for an order directing the Opp.Party No.2 to replace the subject Mobile Set with a new one of same model or in alternative the OP 2 may be directed to refund the cost of the subject mobile phone and Ops be directed to pay a sum of Rs.1,00,000/- each to the complainant as compensation towards harassment & mental agony and further prayed for an award of  Rs.10,000/- towards cost of this litigation . 
3.   The brief facts as emerged from the complaint petition and documents filed herewith giving rise to the present complainant are that, the complainant has purchased one Samsung A33 (8,128 GB 1EA) mobile phone on 22.11.2022 from the authorized store of    Opp.Party No.2 vide Payment  Reference No. 3787996586750252022 and Tax Invoice No.3787996586750252022 for a consideration amount of    Rs.29,999/- vide tax invoice No 378796586750252.  The mobile set stopped functioning on 05/08/2023 i.e within the warranty period .The complainant, on the same date visited to the authorized repair centre i.e. OP 1, who repaired the mobile set and returned to the complainant on the same day.  On 16.12.2023 the mobile set again stopped functioning and the complainant again visited to the OP 1(one) Service Centre where he was informed that there is defects on the  PBA of the subject Mobile set . The OP 1 quoted an estimated cost of Rs.12, 689.32 for repairing of the said Mobil set. It is alleged that, subject Mobil set got dead/damaged   due to negligence & faulty repairing  on dt. 05/08/2023 at the end of the OP1 (one)/the authorized service center of the OP2   for which the complainant sustained loss & mental agony .The  conduct & attitude of the Op No.1/ the authorized service center of the OP2   amounts to unfair trade practice and deficiency in rendering service. The cause of action for this complainant arose on 05/08/2023 when the OP1 for the first time repaired the subject Mobile  set in faulty & negligent manner which subsequently on 16/12/2023 caused damaged the subject Mobile Phone set resulting financial loss & mental agony to the complainant .Hence this complaint. 
4. On being notice, the Opp.Party No 2(two) appeared through their advocate Sri Manas Ranjan Mohanty and filed their written version denying the petition allegations on all its material particulars. It is submitted by the Op2 that, all the Ops in this case are separate and independent entities, not agent of each other. The complainant has purchased a Samsung A33(8,128 GB 1EA) mobile phone on dt.22.11.2022 and all these are completely matter of record about the purchase of said set and warranty accordingly  the complainant is asked to produce the original sealed & signed warranty card . The OP2 specifically denied the facts that, on dt.05.08.2023 the said set was stopped functioning and on the same day complainant approached to OP 1 and the mobile set was repaired negligently and returned to the complainant. It is submitted that, the complainant contacted to the OP1 after warranty period i.e. on 16.12.2023 when the set was dead but the complainant was not ready to repair that time.  It is further submitted that, the claim of the complainant is based only on averments made in the complaint without supported by any report of an export and material on record to established the existence of any consumer disputes ,deficiency in services and /or adoption of unfair trade practice by the manufacture defects of the product under the product liability . The op 2 further contended that ,the service rendered by the Opposite Parties  through the authorized agent and the job cards relied upon by the Ops establish that this is not an established case of manufacturing defect in goods or deficiency in services. The Op No 2 with this submission urged to dismisses this complaint with cost.
5. Notice to the Op1(one ) is served through registered post on dt. 22/02/2023 as it is proved from the Track Consignment vide No. RO096578637IN placed on the record. But the Op 1 is not appeared though sufficient opportunities is given for filling of written version and for participating  in the hearing of this complaint.
6. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
7. The complainant, to substantiate his contention has filed the following documents:- (i) Computer generated true copy of invoice of the subject Mobile Set dt. 22/11/2022 ,(ii) Computer generated true copy of Warranty Claim of the subject Mobile Set dt.05/08/2023,(iii) Original estimate for repair of the subject Mobil Set dt. 16/12/2023 copy of legal notice dt.04.11.2021.The complainant petition is supported by an affidavit of the complainant. 
8. Heard. Perused the material on record. We have our thoughtful consideration to the submission of rival parties.
9. During hearing of the case the Complainant has also filed additional affidavit evidence as prescribed under C.P. Act, the averments of which are corroborating with the averment of the complainant remain un-rebutted. Thus, the contention of the complainant petition is proved on affidavit.
10. The Ops have failed to adduce any evidence affidavit as prescribed under C.P.Act, 2019 to substantiate their contention though participated in the hearing of this case and got sufficient opportunities have been availed. Rather evidence adduced by the complainant remains un-rebutted.
11. We perused the complaint petition and documents available on record. From the aforesaid facts it is found that the complainant has purchased one Samsung A33(8,128 GB 1EA) mobile phone set  on 22.11.2022 from the authorized store of    Opp.Party No.2 vide Payment  Reference No. 3787996586750252022 and Tax Invoice No.378796586750252 at a consideration amount of Rs.29,999/- which was found defective within the warranty period and required repairing.Lastly when the  warranty period was over, the mobile set  was dead within a short period and when the OP1 estimated repair cost of Rs.12,268/- which the complainant is unable  to repair the mobile set by paying such huge amount .
12. The op 2 in para 1 of their written version contended that, “the Ops that all the Ops in this case are separate and independent entities, not agent of each other” on the other hand in para  6 of their written version contended that, “the service rendered by the Opposite Parties  through the authorized agent and the job cards relied upon by the Ops establish that, this is not an established case of manufacturing defect in goods or deficiency in services” clearly established that ,the Op 2 representing the Op 1. Nothing specifically denied or nothing material placed on record to hold that, the Op 1(One) is not the authorized service center of the Op2 (two)/the manufacturer of the subject Mobile Set. Rather the complainant has proved on affidavit that , the mobile set stopped functioning on 05/08/2023 i.e within the warranty period .The complainant, on the same date visited to the authorized repair centre i.e. OP 1, who repaired the mobile set and returned to the complainant on the same and that, on  16.12.2023 the mobile set again stopped functioning and the complainant again visited to the OP 1(one) Service Centre where on  PBA of the subject Mobile set found  defect and that ,OP 1 quoted an estimated cost of Rs.12, 689.32 for repairing of the said Mobil set. The allegation raised by the complainant that, subject Mobil set got dead/damaged   due to negligence & faulty repairing  on dt. 05/08/2023 at the end of the OP1 (one) i.e the authorized service center of the Op 2/Manufacturer for which the complainant sustained loss & mental agony proved on affidavit remain un-rebutted.
13. In the instant case  as it is appears that, the mobile set  being manufactured by such a reputed company/op2 and  purchased by the complainant had developed  defects within the warranty period on a  short span which lead to dead condition and the O.ps were unable to restore its normal functioning.
14. Nothing pleaded or proved to hold that, the subject Mobile Set is misused by the complainant resulting its dead condition as on 16/12/2023 required replacement of  PBA at the estimated cost of 12,268/-. Rather it appears that, the complainant invested a substantial amount and purchased the mobile set with an expectation to have the effective benefit of use of the article/Mobile. In this case, the complainant is deprived of getting beneficial use of the article/Mobile .The Op 2 has manufactured defective goods/Subject Mobile set and sold it to the complainant got damaged on a short span of time due to negligence & faulty repairing at the end of the OP1 (one) i.e the authorized service center of the Op 2/Manufacturer clearly proved an unfair trade practice & deficiency in service on the part of the Ops certainly caused financial loss & mental agony to the complainant cannot be denied. However the claim of the complainant is at higher side.
15. Hence, this Commission allowed the complaint   partly and disposed of the matter with the following directions.

                                           ORDER

The Opp.Party No.2 (two) is hereby directed to replace the subject Mobile Set with a new one of the same model with fresh warranty to the complainant without charging any extra amount and to pay monetary  compensation of Rs.5,000/- which include litigation  cost  to the complainant within four weeks from the date of receiving of this order   or in alternative pay back the cost of the mobile set i.e. Rs.29,999 with interest @ 12% per annum from the date of filing of this complaint i.e.06.02.2024   till its actual payment with  litigation cost of Rs 5,000/- to the complainant, subject to return  back of the said Mobil set .

The consumer complaint is party allowed in the above terms, & pending application if any is also stands disposed of accordingly.

             Dictated and corrected by me.

                                               President

                                           I   agree.

                                                              Member   

 Pronounced, in the open Commission today on this 30 May  2024  under the seal and signature of this Commission. The pending application if any is also stands disposed off accordingly. Judgment could not be pronounced on time in want of quorum. 

The judgment be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet  to treat the same as copy of the order received from this Commission .Ordered accordingly.