DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No.  145 of 27.4.2017

                                      Decided on:                    4.12.2019

Vishal Kaushal son of Sh. Babu Ram Kaushal R/o House No.67, Ram Nagar, Street No.5, Near Government Human Polytechnic College, Sheran Wala Gate, Patiala.

                                                                   …………...Complainant

                                      Versus

1.       AppsDaily Solutions Pvt. Ltd. Regd. Office: 315-C Wing, Shanti Shopping Centre, Mira Road East, Near Railway Station Thane 401107, Mumbai (Maharashtra) through its Managing Director.

2.       AppsDaily Office, Shop No.9-A, Sewak Plaza, Near Sahni Bakery, 22 No. Phatak, Patiala through its Proprietor.

3.       Shivam Electronics and Computer Shoppe SCO 35, Kissa Market, Sirhind Road, Patiala through its Proprietor.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Smt.Inderjeet Kaur, Member

                                      Sh.B.S.Dhaliwal, Member                                   

ARGUED BY:

                                      Ms.Gurkirat Kaur,Advocate, counsel for complainant.

                                      Opposite Parties No.1 to 3 ex-parte.

 ORDER

                                    B.S.DHALIWAL, MEMBER

1. This is the complaint filed by Vishal Kaushal  (hereinafter referred to as the complainant) against Apps Daily Solutions Pvt. Ltd. and others (hereinafter referred to as OPS) under Sections 11 to 14 of the Consumer Protection Act,1986(hereinafter referred to as the Act).
2. Briefly stated, the case of the complainant is that he purchased a mobile phone make Samsung A-8 (IMEI No.353004/07/11/5227/1) from OP No.3, for an amount of Rs.25,500/-, vide invoice No.2988 dated 23.3.2016.At the time  of purchase of the mobile phone, the same was got insured with OP No.1 through OPs No.2&3, for an amount of Rs.2500/- having secured for any physical damage, liquid damage, theft, data-loss, viruses etc.
3. It is contended that on 11.7.2016, the handset was got repaired from the authorized service centre of Samsung Mobile i.e. Dixon Electronics, Sant Nagar, Patiala, due to the defect viz. “MTP File Transfer not working OTG”
4. It is further contended that the handset in question had been working properly and has never given any problem.
5. It is contended that on 12.12.2016, the complainant was travelling from Chandigarh to Patiala and when he reached at Bus Stand, Patiala, then while de-boarding from the bus, his mobile phone fell on the floor accidently, due to which front, left top side and bottom of the mobile set was damaged. On the same day i.e.  12.12.2016, he approached the service centre i.e. Dixon Electronics. The said service centre, with remarks “for insurance purpose” on the job sheet (previously issued dated 11.7.2016) returned the mobile set , with estimate of Rs.7957/- as cost of repair of damaged mobile set and advised the complainant to approach OPs No.1&2.
6. The complainant immediately approached OP No.2, for the replacement or repair of the mobile set. It was assured by OP No.2 that the said mobile set will be replaced or repaired within 10-15 working days from 13.12.2016. The complainant immediately deposited the requisite documents and damaged mobile phone with OP No.2.Mobile phone of the complainant was sent by OP No.2 to OP No.1 with the details of damage, under the signatures of their authorized signatory.
7. The mobile set of the complainant was returned by OP No.1, vide Pro Forma Invoice dated 13.1.2017, which was received by him on 16.1.2017, with the remarks that Customers Damaged Handset sent on repair and return basis, but the said mobile set was not repaired by OP No.1 despite of the fact that the said damage was fully covered under the insurance policy. The cost of repair of damage was assessed by the OPs  company as Rs.4999/-.
8. It is contended that finding no other alternative, ultimately, the complainant got repaired the mobile set and paid Rs.7719.92p for the said purpose, whereas it was duly covered under the insurance with OP No.1 and has to be repaired by OPs No.1&2.
9. It is contended that OPs No.1&2 have charged an amount of Rs.2500/- as insurance of mobile set and Rs.1500/- as file charges, for the repair of mobile set, but the OPs did not repair the same and violated the terms and conditions of the insurance policy.
10. The complainant also got served a legal notice dated 6.2.2017, upon the OPs through registered post but the OPs neither responded to the notice nor any needful was done by them.
11. The act and conduct of the OPs amount to deficiency in service on their part, which caused great mental agony, tension, harassment, inconvenience and humiliation to the complainant.
12. For these sufferings the complainant has prayed for giving direction to the OPs to pay the repair amount of Rs.7719.92p with interest @12% p.a. w.e.f. the date of insurance i.e. 23.3.2016 till actual realization; to return Rs.4000/- paid by the complainant i.e. insurance amount + file charges; to pay compensation of Rs.50,000/- and also to pay Rs.10,000/- as cost/litigation expenses.

Hence this complaint.

13. Upon notice, OPs failed to come present despite service and were accordingly proceeded against exparte.
14. In support of the complaint, the ld. counsel for the complainant tendered into evidence Ex.CA affidavit of the complainant,  copy of invoice dated 23.3.2016,Ex.C1,copy of document  of Apps daily,Ex.C2, copy of job sheet dated 11.7.2016,Ex.C3, copy of estimate, Ex.C4, copy of job sheet dated 13.12.2016,Ex.C5, copy of details of damage,Ex.C6, copy of Pro Forma invoice, Ex.C7, copy of Tax/Vat invoice, Ex.C8, copy of legal notice,Ex.C9, postal receipts, Exs.C10 to C12 and closed the evidence.
15. We have heard  the arguments, addressed by the ld. counsel for complainant, and have also gone through the record of the case file, carefully.
16. The ld. counsel for the complainant has reiterated his stand as taken in the pleadings and detailed above.
17. The ld. counsel for the complainant has pleaded that while purchasing the mobile set on 23.3.2016 the complainant simultaneously got the same insured from OPs No.1&2 by paying an amount of Rs.2500/-. The mobile set was insured with OPs No.1&2 in case of physical damage, liquid damage, theft, data loss and viruses. In the month of July,2016, some defects were developed in the phone which were reported to the authorized service centre of Samsung Mobile i.e. Dixon Electronics, Patiala. The defect was “MTP File transfer not working OTG” and on 11.7.2016,the same was got repaired. It is also submitted that on 12.12.2016 while the complainant was de-boarding from a bus at bus stand, Patiala, the phone accidently fell on the floor and was damaged. The complainant approached OP No.3, who worked out estimate of Rs.7957/- and advised the complainant to approach the OPs no.1&2 being insurers. On 13.12.2016, the OP No.2 taken into it possession, the phone and charged Rs.1500/- as file charges and promised that either the phone will be replaced or repaired within 10-15 days period. Instead of replacing or repairing the phone, OP No.1 assessed damages as Rs.4999/-.It is further submitted that the complainant finding no other alternative got the phone repaired and paid Rs.7719.92 for the said purpose. On 6.2.2017, regd. notice was served upon OPs for the payment of Rs.7719.92 but the OPs did not respond. It is pleaded that there is clear cut deficiency of service on the part of OPs.
18. It is an admitted fact that the complainant purchased the mobile phone on 23.3.2016, which is corroborated by Ex.C1. Ex.C2 further substantiates the fact that on the same day the phone was got insured from OPs No.1&2 against protection of physical damage, liquid damage, theft, data loss and virsues. It is also proved by Ex.C3 that the phone was repaired for the defect i.e. MTP FILE TRANSFER NOT WORKING OTG NOT WORKING on 11.7.2016 by the insurer authorized service centre. The sketch Ex.C6 prepared by the service centre of OPs No.1&2 further authenticate the version of the complainant to the extent of the damage of the phone in question. The authorized service centre of OPs No.1&2 received an amount of Rs.1500/- alongwith the phone and assessed  damage value of the phone as Rs.4999/-, which facts are corroborated by Exs.C6 and C7.The phone was damaged during the valid warranty period and it was in repairable condition. Therefore, OPs No.1&2 were liable to repair the phone. Under the compelled circumstances the complainant got the phone repaired for which he had paid Rs.7719.92 vide receipt Ex.C8.
19. As far as, the extent of liability of OP No.3 is concerned, Ex.C1 has been perused. It is revealed under the terms and conditions that warranty will be provided by company only and service will be provided by the company’s authorized service centre only. Under these conditions the OP No.3  neither can be construed as company nor can be as authorized service centre. Therefore, OP No.3 was not liable to carry out any repair work.
20. It is established perception that the whole purpose of pleadings is to give fair notice to each party of which the opponent’s case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made there are deemed to have been admitted. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. The Opposite parties did not appear before this Forum despite service and presumption of service was raised and were proceeded against ex-parte. Thus, the evidence adduced by the complainant remains un rebutted. In view of this, all the averments made in the complaint are deemed to have been admitted by the opposite parties and an adverse inference is to be drawn against them.
21. For the reasons recorded above, complaint is partly accepted. OPs No.1&2 are directed to pay Rs.1500/- and Rs.7719.92 alongwith interest @9% per annum from 13.12.2016 and 18.1.2017 respectively till final realization alongwith another sum of Rs.3000/- as compensation for causing harassment and mental agony including the cost of litigation.
22. The complaint as against OP No.3 is dismissed.
23. OPs No.1&2 are directed to comply with this order within a period of 45 days from the date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules.Thereafter, file be indexed and consigned to the Record Room.

The complaint could not be decided with the stipulated period due to heavy pendency of cases.

ANNOUNCED

DATED:4.12.2019       

                                           B.S.DHALIWAL                  INDERJEET KAUR

                                           MEMBER                              MEMBER