Haryana

Kaithal

325/20

Phool Kumar - Complainant(s)

Versus

Amit Mobile World - Opp.Party(s)

Sh.Vinod Bura

01 Apr 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                          Complaint Case No.      325 of 2020.

                                                          Date of institution:                  09.10.2020.

                                                          Date of decision:            01.04.2024.

 

Phool Kumar s/o Shri Om Parkash, r/o Gadra Patti, VPO Balu, Tehsil Kalayat, District Kaithal.

                                                                                      …Complainant.

 

                                                      Versus

 

1. Amit Mobile World, Chhatrawas Road, near Congress Bhawan, Kaithal, through its Authorized Proprietor/Partner.
2. Bajaj Finserv, above 1^st Floor, Global Sanitary, Ambala Road, Opp. RKSD College, Kaithal, through its Authorized Signatory.
3. Oppo Mobile Care Center, near Sir Chottu Ram Chowk, Dhand Road, Kaithal.
4. Oppo Mobile India, Head Office: 2^nd Floor, Block-1, Vatika Business Park, Sohna Road, Sector-49, Gurugram-122002.
5. CPP Group India, Golf View Corporate, Tower-A, Golf Course Road, Sector-42, Gurugram-122002.
6. M/s HDFC Ergo General Insurance Company Ltd., office at 6^th Floor, Leela Business Park, Andheri Kurla Road, Andheri (E), Mumbai-400059.

 

...Opposite Parties

 

          Complaint under Section 35 of the Consumer Protection Act

 

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SH. SUNIL MOHAN TRIKHA, MEMBER.

                  

 

Present:       Shri Vinod Bura, Advocate, counsel for the complainant.   

                   Opposite Parties No.1,3 & 4 ex-parte.

                   Shri Vikram Tiwari, Advocate, counsel for Opposite Party No.2.

                   Shri Chand Ram, Advocate, counsel for Opposite Party No.5.

                   Shri Sudeep Malik, Advocate, counsel for Opposite Party No.6.

 

ORDER   -  NEELAM KASHYAP, PRESIDENT

                   The complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the OPs.

2.                In the complaint, complainant alleged that he had purchased a mobile handset make Oppo model Reno 2(f) for a consideration amount of Rs.23990/- from OP No.1, vide Tax Invoice No.23990 dated 28.11.2019. That the said mobile was fully insured by OP No.2 vide policy No.IM4345537. That in the month of February 2020, the said mobile fell down and its backside body has been cracked and after that, he visited in the office of OP No.3 to change back body of mobile, who changed the same and took Rs.2460/- and receipt of said amount with bill of mobile sent to the office of OP No.2 for claiming the charges, but OP No.2 had not paid the said amount. That now the screen of mobile becoming dark and not working properly and in this regard, he approached OP No.3, who demanded Rs.7100/- from him for replacement of screen of mobile. That the said mobile handset is still under warranty and fully insured. That the above act and conduct of OPs, amounts to gross deficiency in service, on their part, constraining him, to file the present complaint, against the OPs, before this Commission.    

3.             Upon notice, initially representative of OP No.1 appeared before this Commission, but on 17.01.2021, he failed to appear before this Commission and as proceeded against ex-parte on that date. OPs No.3 & 4 appeared and filed written statement, but on 09.09.2022, they were proceeded against ex-parte on account of default in appearance. OP No.2 also filed its written statement. Thereafter, OPs No.5 & 6 were impleaded as party in the present case and they filed their respective written statements.

4.                OP No.2, in its written statement stated that the complainant purchased the Oppo mobile phone from OP No.1 and had availed a loan along with insurance at 0% interest PA from OPs No.2 to 4 as per details given below:

Loan Account No.	Loan Amount Financed	EMI	Tenure	Product purchased	Advance EMI paid if any	Loan Account Status	Date of Disbursal
593DPFFN238004	23990/-	1600/-	15 months	Oppo mobile	04 EMI’s	Closed	28.11.2019
593DPSFN238490	2574/-	234/-	11 months	Digital Fone Safe		Closed	28.11.2019

 

.                  That both the loans accounts are closed as on date and NOC has also been issued. That the total amount of EMI which has been deducted from the account of complainant per month is Rs.1834/- i.e. Rs.1600 towards the mobile phone and Rs.234/- towards the insurance of loan account. That Government of India on 23.10.2020 announced a scheme which mandate ex-gratia payment to Borrowers by crediting the difference between compound interest and simple interest for the period between 01.03.2020 and 31.08.2020 in respect to their loan accounts by the respective lending institutions. As per the said scheme, the Borrowers having sanctioned limits (aggregate of all the facilities) or outstanding amount not exceeding Rs.2 Crore as on 29.02.2020 shall be eligible for benefit under the said scheme. That the OP further refers the following conditions being mandatory for getting the benefit under the said scheme: (a) Loan Account to be standard as on 29.02.2020. (b) Ex-gratia payment under the said scheme applicable irrespective of the fact whether the Borrower had availed the moratorium in lines with the above referred master circulars issued by RBI dated 27.03.2020 and 23.05.2020. In the instant case, since all the above mentioned conditions are duly met, hence pursuant to the said scheme introduced by the Government of India on 23.10.2020, the OP had duly adjusted an amount of Rs.12/- towards loan account No.593DPFNN238004 and Rs.2/- towards the loan account No.593DFSFN238490. That the OP is financing company providing loans to all the needy persons, thus issuance of insurance policy or the acceptance/rejection of insurance claim solely depends upon the insurance partner/company i.e. OP No.3 and 4 and not this OP and hence the OP should not be held accountable for any of the actions taken by OPs No.3 & 4 towards the insurance claim of the complainant.

5.                OPs No.3 & 4 in their written statement stated that the complainant visited to their authorized service centre on 03.03.2020, where he reported to their engineer about the damaged back/battery cover due to fallen down of said mobile handset. That after proper inspection or testing of said mobile, engineer comes to the conclusion that back/battery cover damaged due to fallen down. That as damage is never covered under warranty, hence, his warranty becomes void and simultaneously given back/battery cover i.e. Rs.2467- only. Hence, after approval of the customer on the very same day, the damaged part i.e. battery cover replaced by their authorized service engineer by payment of Rs.2467/- only and returned the mobile to the complainant to his full satisfaction. That in the month of October 2020, the customer again visited their authorized service centre and reported about the blank display and after proper inspection of mobile, it is found that “mobile side Crome” was damaged that to attached with display resulting in display blank. As damage is never covered under warranty, hence again his warranty becomes void and simultaneously, given a verbal estimate for replacement of damaged display i.e. Rs.7167/- only, but customer denied for issuance of any estimate and further repaid from their end. That the customer also given a statement that he will report the same to the insurance company first and then visit to them.

6.                OP No.5 in their written statement stated that OP No.5 is not the insurance company, in fact, mobile phone of complainant was insured with OP No.6. The role of OP No.5 was limited to that of a mere ‘facilitator’. As such, claims, if any, were to be processed and settled by the said OP No.6 and not OP No.5. That the alleged damage was intimated to OP No.5, who forwarded the same to OP NO.6. Reportedly, OP NO.6 approved claim of Rs.1217/- (after deduction of compulsory deductible and depreciation) on 14.01.2021 and paid the same vide NEFT No.11211369515276.

7.                OP No.6 in its written statement stated that the present complaint is premature as no intimation about alleged loss has ever been given by complainant to OP No.6. That it is not under the domain of OP No.6 to change the mobile phone and it is matter between complainant and OPs No.1, 3 & 4. Hence, the present complaint against OP No.6 be dismissed with special and heavy costs.  

8.                To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C3.

9.                OP No.2 in its evidence, tendered affidavit Ex.RW1/A and documents Annexure R-1 to Annexure R-7. OP No.5 in its evidence tendered affidavit Ex.RW5/A and document R9. OP No.6 in its evidence tendered affidavit Ex.RW6/A and document Annexure R-8.

10.              We have heard the learned counsel for the parties and perused the record carefully.

11.              Learned counsel for complainant argued that the complainant had purchased a mobile handset make Oppo model Reno 2(f) for a consideration amount of Rs.23990/- from OP No.1 on 28.11.2019, which was fully insured by OP No.2 vide policy No.IM4345537. He further argued that in the month of February 2020, the said mobile fell down and its backside body has been cracked and after that, the complainant visited in the office of OP No.3 to change back body of mobile, who changed the same and took Rs.2460/- and receipt of said amount with bill of mobile sent to the office of OP No.2 for claiming the charges, but OP No.2 had not paid the said amount. He further argued that now the screen of mobile becoming dark and not working properly and in this regard, the complainant approached OP No.3, who demanded Rs.7100/- from him for replacement of screen of mobile. He further argued that the said mobile handset is still under warranty and fully insured and the above act and conduct of OPs, amounts to gross deficiency in service, on their part.  

12.              Learned counsel for OP No.2 has argued that the complainant purchased the Oppo mobile phone from OP No.1 and had availed a loan along with insurance at 0% interest PA from OPs No.2 to 4 and both the loans accounts are closed as on date and NOC has also been issued. He further argued that the total amount of EMI which has been deducted from the account of complainant per month is Rs.1834/- i.e. Rs.1600 towards the mobile phone and Rs.234/- towards the insurance of loan account. He further argued that the OP is financing company providing loans to all the needy persons, thus issuance of insurance policy or the acceptance/rejection of insurance claim solely depends upon the insurance partner/company i.e. OP No.3 and 4 and not this OP No.2, hence OP No.2 should not be held accountable for any of the actions, taken by OPs No.3 & 4 towards the insurance claim of the complainant.

13.              Learned counsel for OP No.5 has argued that OP No.5 is not the insurance company, in fact, mobile phone of complainant was insured with OP No.6. He further argued that the role of OP No.5 was limited to that of a mere ‘facilitator’. As such, claims, if any, were to be processed and settled by the said OP No.6 and not OP No.5. He further argued that the alleged damage was intimated to OP No.5, who forwarded the same to OP No.6, who approved claim of Rs.1217/- (after deduction of compulsory deductible and depreciation) on 14.01.2021 and paid the same vide NEFT No.11211369515276.

14.              Learned counsel for OP No.6 has argued that the present complaint is premature as no intimation about alleged loss has ever been given by complainant to OP No.6. That it is not under the domain of OP No.6 to change the mobile phone and it is matter between complainant and OPs No.1,3 & 4. Hence, the present complaint against OP No.6 be dismissed with special and heavy costs. 

15.              Admittedly, the complainant purchased one Oppo Reno 2(f) mobile for a consideration amount of Rs.23990/- from OP No.1 vide Tax Invoice dated 28.11.2019 Annexure C-1. The complainant had availed a loan of said amount of Rs.23,990/- from OP No.2 at 0% interest PA, which was repaid in 15 monthly installments of Rs.1600/-. The complainant also taken Digital Fone Safe insurance policy of CPP India insurance company i.e. OP No.5, in total Rs.2574/-, with 11 monthly installments of Rs.234/-, total monthly installment amount of Rs.1834/- (1600+234). However, both these loans accounts are closed on 28.11.2019, as is evident from document Annexure C-2, R-6, R-7, and this fact is also admitted by OP No.2, in its written statement. However, the Digital Fone Safe provides complimentary cover against any loss or damage to the mobile display for one year i.e. from 28.11.2019 (when the mobile was purchased) till 27.11.2020.

16.              Learned counsel for the complainant has firstly contended that in the month of February 2020, the said mobile fell down and its backside body has been cracked and after that, the complainant visited to OP No.3 i.e. authorized service centre of Oppo, who changed the same and took Rs.2460/- and this submission of complainant has also been duly admitted by OPs No.3 & 4, in their written statement. No doubt, OPs No.3 & 4 has stated in written statement that the mobile phone of complainant became warranty void, hence, they charged Rs.2460/- from him, but OPs No.3 & 4 failed to produce any documentary evidence like expert report, inspection report etc. on the case file, vide which, it can be proved that mobile phone of complainant became warranty void, hence, above contentions of OPs No.3 & 4 are not believable, hence rejected. As per complainant, he sent receipt of said amount of Rs.2460/- along with bill of mobile, to OPs No.2 & 5, for claiming the charges, but they had not paid the said amount to the complainant till today. However, during the course of arguments, learned counsel for OP No.5 has submitted that they had already paid Rs.1217/- to the complainant through NEFT on 14.01.2021 against that amount of Rs.2460/- and also mentioned the same at Para No.9 of in their affidavit Ex.RW5/A, wherein, it is mentioned that an amount of Rs.1217/- has been paid vide NEFT No.11211369515276, but it is pertinent to mention here that learned counsel for the complainant has denied about receiving any amount from any of the OPs till today. Moreover, OP No.5 also failed to mention that in which account the said amount of Rs.1217/- has been sent through NEFT transfer, so in the absence of any supporting documentary evidence, the above contentions of OP No.5 has no force, hence rejected.

17.              Learned counsel for the complainant has further contended that in the month of October 2020, the screen of mobile phone in question became dark and not working properly, and in this regard, the complainant again approached OP No.3, who demanded Rs.7100/-, from him for replacement of screen of mobile, but as per complainant, since the mobile phone was still under warranty and fully insured, therefore, he (complainant) refused to pay the said amount and taken back the mobile phone with repair. However, it is pertinent to mention here that no doubt, OPs No.3 & 4 has stated in written statement that after proper inspection of mobile, it is found that “mobile side Crome” was damaged, resulting in display blank, which is never covered under warranty, but again there is no documentary proof on the case file to support the above contentions of OPs No.3 & 4 and without which, the above contentions of OPs No.3 & 4 are not believable, hence rejected. The learned counsel for the complainant has further submitted that when OPs No.3 & 4 demanded the repair charges from the complainant, therefore, the complainant again approached OPs No.2 & 5 and requested to bear that cost of Rs.7100/-, but again they refused for the same.

18.              So, from the above record, it is also crystal clear that the mobile in question of complainant became defective firstly in February 2020 and then in October 2020 i.e. within the warranty period of one year i.e. from 28.11.2019 till 27.11.2020, and in this regard, the complainant approached OPs No.2 & 5 time and again, with a request to pay/reimburse the cost amount of Rs.2460/- and Rs.7100/-, who refused to pay/reimburse the same.

19.              However, it is pertinent to mention here that during the pendency of the present case, complainant moved an application to implead the insurance company i.e. CCP Group India, as party in the present complaint, which was allowed and said CPP Group India was impleaded as OP No.5 in the present complaint. Thereafter, on appearance, said OP No.5 has revealed that the mobile phone in question of complainant was insured with M/s HDFC Ergo General Insurance Company Ltd. and made request to implead the same as party in the present complaint, which was allowed and said M/s HDFC Ergo General Insurance Company Ltd. was also impleaded as OP No.6, in the present complaint.

20.              During the course of arguments, learned counsel for OP No.2 Bajaj Finserv has submitted the OP No.2 is only financing company, thus issuance of insurance policy or the acceptance/rejection of insurance claim solely depends upon the insurance partner/company i.e. OP No.5 and 6 respectively and not this OP No.2. In order to support his above contentions, OP No.2 produced copy of letter Annexure R-5, issued by OP No.5 CPP Group India, to the complainant about the Membership Details cum Sales Proforma of FoneSafe Classic on Membership Fee of Rs.2574/- for one year i.e. from 25.11.2019 to 27.11.2020. This Commission is convinced with the above submissions of OP No.2, because OP No.2 has only provided the financial assistance to the complainant of Rs.2574/- at 0% interest, to got insured the mobile in question of complainant, with OP No.5, and thereafter OP No.2 got recovered the said amount in 11 monthly installments of Rs.234/-, from the complainant. Hence, the role of OP No.2 was limited to that of a mere ‘facilitator’ of insurance policy to the complainant.  

21.              As per document Annexure C-2, mobile phone of complainant was insured with OP No.5 i.e. CPP India and this fact has also not been denied, by said OP No.5, in its written statement, rather, OP No.5 was further insured with OP No.6 M/s HDFC Ergo General Insurance Company Ltd., therefore, OPs No.5 & 6 were severally and jointly liable to pay/reimburse the repair cost amount of Rs.2460/- and Rs.7100/-, total Rs.9560/-, to the complainant, but they did not do so, rather, tried to shift the burden of the same, from one to another, due to which, the mobile phone of complainant are lying useless, for the complainant from October 2020 (when it became defective second time) till today i.e. from about 3½ years, due to which, the complainant was deprived of enjoying the facility of mobile phone, despite spending huge amount of Rs.23,990/- + Rs.2574/- on it and might have suffered huge physical harassment and mental agony including financial loss, without any fault, on his part, and lastly left with no other option, except to knock the door of this Commission, by way of filing the complaint in hand. So, the above very casual act and conduct of OPs amounts to gross deficiency in service on their part. However, during the course of arguments, learned counsel for OPs No.6 has argued that in the prayer of complaint, complainant has only demanded the repair cost of Rs.2460/-, against which, Rs.1217/- has already been paid, to the complainant on 14.01.2021, hence, complainant is not entitled any other relief from this Commission. But this contentions of learned counsel for OP No.6 has no force, because it is admitted fact that the mobile in question of complainant was fully insured under Digital Fone Safe policy i.e. from 28.11.2019 to 27.11.2020 and it is admitted fact the mobile in question became defective in the month of October 2020 i.e. within the insurance period of one year, hence OP No.5 & 6 are also liable to pay the said repair amount of Rs.7100/- to the complainant. No doubt, the complainant has not demanded the said amount of Rs.7100/- in the prayer clause of his complaint, but in last para, he mentioned that “Any other relief to which the complainant found entitled may also be granted to him” and this Commission, deems it fit to direct OPs No.5 & 6 to pay the said amount of Rs.7100/- to the complainant. So, in this way, the above contention of learned counsel for OP No.5, has no force, hence rejected. Hence, OPs No.5 & 6 are liable to pay total Rs.9560/- (2460/- + 7100) along with compensation amount of Rs.5000/- + litigation expenses of Rs.5000/-, to the complainant. Since no deficiency in service is proved against OP No.1 to 4, therefore, present complaint qua them is liable to be dismissed.

22.              Thus as a sequel of above discussion, we accept the present complaint against OPs No.5 & 6 and dismiss the same against OP No.1 to 4. We direct OPs No.5 and 6, jointly and severally, to pay the total repair cost of Rs.9560/- along with compensation amount of Rs.5,000/- + litigation expenses of Rs.5,000/-, to the complainant, within 45 days, from today, failing which, the total award amount shall carry interest @ 6% p.a., from the date of filing of present complaint, till its realization.

23.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:01.04.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

 

Typed by: Sham Kalra, Stenographer.