FINAL ORDER/JUDGEMENT
SMT. SAHANA AHMED BASU, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that on 18/10/2016, the complainant purchased one Smart Phone from O.P.-2 being Model- Samsung S7 Edge on payment of Rs.50,900/- vide bill No.E64S/3875. An Insurance App was offered to the complainant by the O.P.-2 and alluring the words of O.P.-2 that he would get 10 days replacement and guarantee repair, the complainant purchased such insurance app, namely, ‘Apps Daily Insurance’ by paying Rs.4999/- to the O.P.-2. On 14/02/2017, the screen of the said smart phone was broken and the complainant contacted the O.P.-1 but got no response. He went to the O.P.-2 and after several attempts he was able to lodge a complaint but the technician of O.P.-1 claimed Rs.3054/- to process his claim and he made the payment through online. Thereafter, on several occasions he contacted the O.Ps. but to effect and the mobile phone is still lying with the O.P.-1. He was never informed that extra payment has to be made for registering any complaint. For such deficiency in service and unfair trade practice on the part of the O.Ps., the complainant has filed the instant consumer complaint before this Forum for getting reliefs as made out in the petition of complaint.
In spite of notice published in the daily newspaper, neither the O.P.-1 has appeared nor they file any W.V. to contest the case. As such the case against O.P.-1 has proceeded ex-parte.
O.P.-2 has contested the case by filing W.V. contending inter alia that they are unnecessary party to the consumer case as they have no role in providing alleged services. O.P.-2 is the franchisee of Samsung India Pvt. Ltd. (Mobile Phone Division). The positive case of O.P.-2 is that in case of any defect or deficiency Samsung India Ltd. would be responsible. Till 31/12/2016, O.P.-1 was using part of the premises of O.P.-2 and was offering insurance services to purchasers interested in purchasing the same. O.P.-1 used to charge insurance premium for providing insurance on product sold by the O.P.-2 and initially invoices were raised by the O.P.-2 and then in turn the proceeds made over to O.P.-1 by the O.P.-2. As such, the O.P.-2 cannot be held liable for deficiency in service and unfair trade practice. Accordingly, the O.P.-2 has prayed for dismissal of the complaint.
In view of the above facts following points are arose for determination :-
- Is there any deficiency in rendering service on the part of the O.Ps. ?
- Are the O.Ps. indulged in unfair trade practice ?
- Is the complainant entitled to get any relief / reliefs as prayed for ?
Decision with Reasons
Points No.-1 to 3.
All the points are taken up together for the sake of convenience and brevity in discussion.
Ld. Advocates for both the parties advanced their case by tendering their clients’ respective evidences supported by affidavit and have also furnished documents. Both the complainant and contesting O.P. have replied to the questionnaires set forth by the adversaries and also filed BNAs.
Undoubtedly the complainant purchased a new Samsung S7 Edge smart phone from O.P.-2 on 18/10/2016 at a price of Rs.50,900/- and insured the subject phone with O.P.-1 on payment of Rs.4,999/-. It is also undisputed that the receipt of payment of insurance premium of Rs.4,999/- was issued by O.P.-1. Fact remains also that the screen of the subject mobile phone was broken due to an accident and the complainant tried contact with O.P.-2 but failed. Then complainant contacted O.P.-1 and O.P.-1 went to Samsung Store with the complainant and a complaint was registered vide No. CIN AND-C-160317-1978 61 825. The complainant was requested to make extra payment of Rs.3054/- for processing the claim. The complainant paid the said amount through online to the O.P.-1 and informed the entire fact to the OP-2. The complainant received an e-mail dated 16/03/2017 from O.P.-1 confirming said payment of Rs.3054/- and the subject phone was handed over to the representative of O.P.-1 and O.P.-1 also acknowledged the same by e-mail dated 27/03/2017. But the complainant yet to get back his smart phone after repairing.
On scrutiny of the materials on record we find that neither the complainant nor the O.Ps. have produced the policy document with regard to the insurance of the subject phone. Therefore, we are to rely upon the arguments advanced by the Ld. Advocates and evidences furnished by both the parties.
On perusal of the documents, we found that the complainant paid Rs.4,999/- by cash to the O.P.-1 for daily insurance for the subject mobile phone, which was purchased from O.P.-2 and the receipt of the said payment was issued by O.P.-1. It is also established from the photocopy of the SMS dated 16/03/2019 of the O.P.-1 furnished by the complainant that Rs.3054/- has been paid by the complainant against Complaint No. CIN AND-C-160317-1978 61 825 and O.P.-1 made arrangement for picking up the subject mobile phone from the complainant and admission of such picking up of the subject mobile was confirmed through SMS dated 27/03/2019. Thereafter, several e-mails were sent by the complainant for getting back his mobile. As per the case of the complainant, despite of repeated request O.P.-1 did not return the subject mobile to the complainant after repairing and till date the subject smart phone is lying with the O.P.-1 the reason best known to the O.Ps.
It has been admitted by the Ld. Advocate for the O.P.-2 that the complainant purchased the said mobile phone from them and the insurance was issued by the O.P.-2. It has further been submitted by the O.P.-2 that they cannot be blamed for any non-action on the part of the O.P.-1 and more importantly for services which was guaranteed by the O.P.-1. But we found that the payment receipt of the insurance was issued by the O.P.-2. In reply to the Question-7 set forth by the complainant O.P.-2 stated that “the Opposite Party No. 1 was using the premises of the Opposite Party No. 2 and it was the understanding between the Opposite Parties to raise the invoice using the system of the Opposite Party No. 2, it was in this context that the Opposite Party No. 2 raised invoice for and on behalf of the Opposite Party No. 1. The invoice value received by the Opposite party No. 2 for and on behalf of Opposite Party No. 1 was immediately made over to the Opposite Party No. 1 and it was not retained or utilized by the Opposite Party No. 2.” We find no logic in this submission as no document or evidence is furnished by the O.P.-2 in support of such contention. Therefore, we are of the opinion that the O.Ps. cannot shook of the responsibility of sufferings of the complainant. As such, we found that O.Ps.-1 and 2 are surely deficient in rendering service to the complainant, which tantamount to unfair trade practice too on their part.
Thus, the complainant is entitled to get relief as prayed for. Accordingly, all points under determination answered in the affirmative.
In result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against O.P.-2 and exparte against O.P.-1 with cost of Rs.5,000/- each.
O.Ps.-1 and 2 are jointly and severally directed to refund the cost of the subject smart phone of Rs.50,999/- together with Rs.4999/- and Rs.3054/- which were paid to the O.Ps. as insurance kit and extra payment to process his claim within 30 days from the date of this order along with litigation cost.
O.Ps.-1 and 2 are jointly and severally also directed to pay Rs.25,000/- to the complainant for causing harassment and mental pain to the complainant within the stipulated period.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
