1. The brief fact of the case of complainant is that on 14.11.2020 he purchased one Samsung Mobile bearing model no. A70s 6+128 (prism crush white) having IMEI No. 359753/10/144076/7 from the O.P.No.1 vide invoice no. 353 dated 14.11.2020 and paid Rs. 26,000/- and received warranty certificate.  It is alleged that after 10 days, he found defect of instant hanging, for which he deposited with the O.P.No.1, who after 10 days 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 15 days, he found the previous defects alongwith some additional defects like battery backup and overheat performance in the body part with low charge of battery, for which he again contacted with the O.P. No. 1, who kept the mobile for about 10 to 12 days and returned the mobile but the was previous defects still exists saying that the mobile handset suffers from inherent 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. 50,000/- and Rs. 10,000/- towards compensation and costs of litigation to him.

2. On the other hand, the O.P. No. 1 though received the notice of this 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 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 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. A70s 6+128 (prism crush white) having IMEI No. 359753/10/144076/7 from the O.P.No.1 vide invoice no. 353 dated 14.11.2020 and paid Rs. 26,000/- alongwith warranty certificate and Complainant filed documents to that effect.  It is also alleged that after 10 days, he found defect of instant hanging, for which he deposited with the O.P.No.1, who after 10 days 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 15 days, he found the previous defects alongwith some additional defects like battery backup and overheat performance in the body part with low charge of battery, for which he again contacted with the O.P. No. 1, who kept the mobile for about 10 to 12 days and returned the mobile saying that the mobile handset suffers from inherent defects.  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 Commission, 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 regarding 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, was sold by O.P. No. 1 to the Complainant.  The allegations of the Complainant regarding the fact that after its repair, he found defects in the alleged mobile time and again with a suggestion of having inherent 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 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 10 days, 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 inherent defect, which is not permissible in the eye of law.  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 service towards repair of the alleged mobile handset through an authorized service center 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 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 handset through the local unauthorized technicians but not by the authorized service engineer of the O.P. No. 2 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. Further lying the said handset for a period of about 2 years without any use, in our view, is of no use.

10. 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.2 being the manufacturer of the alleged product is herewith directed to refund the cost of the alleged mobile handset i.e. Rs. 26,000/- to the Complainant within 45 days from the date of receipt of this order alongwith compensation of Rs. 10,000/- towards causing mental agony, physical harassment and Rs. 2,000/- towards costs of litigation, failing which, the said costs of product i.e. Rs. 26,000/- shall carry interest @ 10% p.a. from the date of this purchase till payment.  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 24^th days of August, 2022.  Issue free copy to the parties concerned.