DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB  : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 31^st   day of October 2023

C.C.21/2018

Complainant

K.C Baiju,

Kavulla Kunnummal (HO),

                  Moonnamthod,

Thamarassery Post,

PIN- 673 573

Opposite Parties

1.         3G Mobile world (TP 8/995E)

Surabhi shopping complex,

Thamarassery,

Kozhikode – 673 573 (PIN)

(By adv. Sri. Dilkhush.V.K)

2.        Gionee Mobile (India Head Quarters),

Syntech Technology Private Limited,

FZ-Block No.1 –Ground floor,

Mohan Co-operative Industrial Estate,

Madhura Road, New Delhi -110044.

3.        APPS Daily Solutions Private Limited,

D-3137 Oberoi Garden Estate,

Chandivali Farm Road.

Antheri (E) Mumbai - 400072

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT.

             This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

On 23/02/2016 the complainant purchased one M5 Lite Marathon 45 Golden Gionee mobile hand set from the shop of the first opposite party paying Rs. 13,000/-. The second opposite party is the manufacturer. The warranty period was one year. As per the recommendation of the manager of the first opposite party, the complainant availed an insurance protection policy from the third opposite party by paying Rs. 1,249/-.

3. On 1/11/2016 the hand set showed the problem of operating system hang and switching off by its own. On the next day, the complainant reported the issue to the first opposite party. The first opposite party took the hand set to their service section and promised that they would solve the issue and would give the hand set back within two days. After two days, when the complainant contacted the first opposite party, they requested for another 4 days. When contacted after 4 days, the first opposite party told that  the third opposite party would contact  him and they were handling the issue since the phone comes under the eligibility of insurance. Even after waiting for several days, the complainant did not receive any response. Then he received a call from the third opposite party informing that they were helpless as the complaint was not registered within 4 days of the issue. When contacted the first opposite party, they promised to sort out the issue with the third opposite party within one week. The first opposite party had also provided a spare phone to him. Again he contacted the first opposite party and then he was requested to wait for another 15 days. Even after 3 ½ months of entrustment, the first opposite party has not given back the hand set after repairs. Hence the complaint for refund of the price of the mobile hand set and the insurance amount collected, along with compensation.
4. The first opposite party filed written version. The second and third opposite parties were set ex-parte.  
5. The contentions of the first opposite party, in brief, are as follows;

The purchase of the hand set in question by the complainant on 23/02/2016 is admitted. But the allegations with regard to the complaint in the hand set and about the insurance etc. are not correct. In fact, the complainant had approached them with a physically damaged and dead phone to know the formalities to get insurance compensation from the third opposite party. The complainant never requested any service warranty from the manufacturer. He wanted to claim insurance from the second opposite party. They explained the formalities for claiming insurance protection. The complainant wanted only a service document for the purpose of claiming insurance, for which, they issued a service job sheet. After this, he never approached them. He directly contacted the third opposite party. The allegation that the repudiation of the claim by the third opposite party was for the sole reason that the complaint was not registered within 4 days is totally unknown to the complainant. The first opposite party is in no way connected with the insurance contract between the complainant and the third opposite party. It is admitted that a standby hand set was handed over to the complainant for his temporary use. There was no deficiency of service on the part of the first opposite party. None of the reliefs is allowable. It is, therefore, prayed to dismiss the complaint with costs.

6. The points that arise for determination in this complaint are;

      (1). Whether there was any deficiency of service on the part of the opposite parties, as alleged?

                 (2) Reliefs and costs

7. The complainant filed affidavit and Exts. A1 to A5 were marked on his side. The complainant was not cross examined by the first opposite party. RW1 was examined and Ext B1 was marked on the side of the first opposite party.
8. We heard both sides.    
9. Point No. 1:   It is not disputed by the contesting first opposite party that the complainant has purchased M5 Lite Marathon 45 Golden Gionee mobile hand set  from them on 23/02/2016 paying  Rs. 13,000/-. Ext A1 is the tax invoice dated 23/02/2016 issued by the first opposite party to the complainant for having purchased the hand set in question.  The warranty for the product was for 12 months from the date of purchase. Ext A4 is the warranty card. The complainant had availed an insurance policy of the third opposite party by paying Rs. 1,249/-. Ext A2 is the invoice dated 24/02/2016 issued by the first opposite party for the Apps daily protection. The hand set showed complaint on 1/11/2016 and it was entrusted to the first opposite party on 2/11/2016 who issued Ext A3 service job sheet dated 2/11/2016. The complaint noted in Ext A3 is ‘dead’. There is no serious dispute on the above aspects.
10. The grievance projected by the complainant is that though the first opposite party had agreed to repair the hand set under the insurance coverage, they failed to take any further steps in this regard and omitted to register the complaint with the third opposite party within 4 days, as a result of which, the insurance cover could not be obtained. It is also the grievance of the complainant that the hand set is still remaining with the first opposite party and they have not returned it. In support of the allegations the complainant filed affidavit in terms of the averments in the complaint and in support of the claim and produced and marked 5 documents.  The first opposite party did not avail the opportunity to cross examine the complainant.
11. The learned counsel for the first opposite party argued that they have no role in allowing or repudiating the insurance claim and they are not in any way connected with the insurance contract between the complainant and the third opposite party. The complainant argued that on earlier occasion, the phone became defective and the insurance was claimed through the first opposite party and that was sanctioned.
12. Going by the evidence in hand, we are of the view that the contention of the first opposite party that they have no connection with the insurance cannot be accepted for more than one reason. First of all, it may be noted that the Apps Daily Insurance is sold from the shop of the first opposite party and admittedly the complainant herein availed the same from that shop. Secondly,  the premium of Rs. 1,249/- was collected by none other than the first opposite party and issued Ext A2 receipt to the complainant under their seal. If the first opposite party has no connection with the Apps Daily Protection, they had no reason to issue Ext A2, which is in the name of their shop and under their seal. Thirdly, the manager of the first opposite party, when examined as RW1 before this Commission, has admitted in the cross examination that they are providing Apps Daily Insurance to the customers. Fourthly, RW1 has produced Ext B1 discharge voucher dated 19/09/2016 of Apps Daily Solutions Pvt Ltd. in connection with the earlier claim of the complainant. If the first opposite party has no connection with the insurance protection, it is not known how they came to be in possession of Ext B1 document. It appears that the contention of the first opposite party that they have no connection with the Apps Daily Insurance Protection is not correct and that such a contention is raised only to escape from the liability.
13. The contention of the first opposite party they had only explained the formalities to be complied with by the complainant to get the insurance claim sanctioned and had no other role. This contention is also not sustainable in view of the admission of RW1 in the cross examination. RW1 has clearly admitted in the cross examination that on an earlier occasion the complainant had approached them with a similar complaint to the hand set and on that occasion they took the phone and claimed insurance protection from Apps Daily and the hand set was returned to the complainant after repairs within twenty days. This is further evidenced by Ext A5 discharge voucher (Ext A5 and Ext B1 are the same). It is averred in the affidavit of the complainant that his hand set was not returned by the first opposite party after repairs as done on an earlier occasion. It is also alleged that the first opposite party neither repaired the same nor claimed the insurance in time. RW1 has admitted in the cross examination that Apps daily claim should have been made within 4 days of the complaint.
14. It is to be noted that the hand set is not yet returned to the complainant. Admittedly, Ext A3 was issued by the first opposite party on 2/11/2016. There is no endorsement in Ext A3 that the hand set was returned to the complainant. Admittedly, a standby hand set was provided to the complainant by the first opposite party. This is also indicative of the fact that the handset of the complainant is with the first opposite party and that the same was not returned to him. So we have no hesitation to hold that the first opposite party has not returned the hand set to the complainant.
15. The complainant did not demand repairs of the hand set under the warranty issued by the manufacturer probably being a physical damage, as contended by the first opposite party. Therefore, the second opposite party manufacturer cannot be saddled with any liability. The Apps Daily Insurance Protection was also not claimed in time and so no deficiency of service can be attributed against the third opposite party and they cannot be held liable or responsible. The negligence and latches were on the part of the first opposite party, who has received the hand set from the complainant and did not move a little finger to redress the grievance of the complainant. The stand taken by the first opposite party that they have no role in claiming the insurance protection cannot be accepted in view of the specific admission made by RW1.  As rightly pointed out by the complainant, such a contention is taken by the first opposite party only to wriggle out of the situation and to avoid the liability. There is gross deficiency of service on the part of the first opposite party. The complaint was deprived of the facility of using his mobile hand set since 2/11/2016 which he purchased paying Rs. 13,000/-. Undoubtedly, the complainant was put to gross mental agony and hardship due to the negligence and latches of the first opposite party. The complainant is entitled to get refund of the price of the mobile hand set from the first opposite party. He is also entitled to get a reasonable compensation from the first opposite party for the mental agony and hardship suffered. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 5,000/- will be reasonable compensation in this regard. The   second and third opposite parties are entitled to be exonerated.
16. Point No.2:  In the light of the finding on the above point, the complaint is disposed of as follows;

                 a)  CC.21/2018 is allowed in part.

b) The first opposite party is hereby directed to refund Rs. 13,000/-(Rupees thirteen thousand only)  to the complainant, being the price of the mobile handset.

c) The first opposite party is directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as compensation to the complainant for the mental agony and hardship suffered.

c) The payment as aforestated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 13,000/- shall carry an  interest of  6% per annum from the date of this order till actual payment.

d) The second and third opposite parties are exonerated.

Pronounced in open Commission on this, the 31^thday of October, 2023.

Date of Filing: 16/01/2018

                         Sd/-                                                          Sd/-                                                        Sd/-

               PRESIDENT                                               MEMBER                                             MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 - Tax invoice dated 23/02/2016 issued by the first opposite party to the complainant

Ext A2 - Invoice dated 24/02/2016 issued by the first opposite party for the Apps daily protection.

Ext A3-Service job sheet dated 2/11/2016

Ext A4 - Warranty card.

Ext A5 - Discharge voucher dated 19/09/2016

Exhibits for the Opposite Parties :

Ext B1 -Discharge voucher dated 19/09/2016

Witnesses for the Complainant

NIL

Witnesses for the opposite parties 

RW1 – Rashid. P 

                                Sd/-                                                              Sd/-                                                       Sd/-

                       PRESIDENT                                                  MEMBER                                            MEMBER

True Copy,      

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