Judgment : Dt.6.12.2017

Shri S. K. Verma, President

            This is a complaint made by one Vishal Parakh residing at 124A, Motilal Nehru Road, P.S.- Gariahat, Kolkata-700 029, against Appsdaily Solutions Private Limited, a company having its registered office at D-3137-39, Oberoi Garden Estate Chandivali, Andheri (E) Mumbai-400 072, OP No.1, Appsdaily Solutions Pvt. Ltd. having their office at Room No.214, 46/31/1, Gariahat Road, P.S.-Gariahat, Kolkata-700 019, OP No.2, Samsung India Electronics Pvt. Ltd., 20^th to 24^th floor, Two Horizon Centre, Golf Course Road, Sector-43, DLF PH-V, Gurgaon, Haryana-122202, OP No.3 and Reliance Retail Limited having their store at 140D, Sarat Bose Road, Kolkata-700 029, OP No.4 praying for an order directing the OP No.1 & 2 to refund the sum of Rs53,900/- being the amount paid by the Complainant for purchasing the said phone with interest @ 24% p.a. and further direction to pay Rs.24,077/- amount paid by the Complainant to buy the new phone because of the latches of OP No.2 and a direction to pay Rs.50,000/- for deficiency in service and another Rs.50,000/- for compensation for harassing the Complainant and litigation cost of Rs.15,000/-.

            Facts in brief are that OP No.1 is a reputed Insurance Co. which provides insurance for mobile devices. OP No.1 runs a website named APPSDAILY providing Insurance to mobile devices from damage and theft. OP No.2 is an authorized office of OP No.1. OP No3 is one of the leading manufacturers of mobile. OP No.4 is a store which sells different electronic items.

            On 24^th October, 2015, Complainant bought a Samsung Note 5 mobile being IMEI Code 3528370419030 from OP No.4 after paying Rs.53,900/-.

            The said phone has 1 year manufacturer’s warranty. In addition, the Complainant opted for extended warranty which was valid upto 23^rd October, 2017. Complainant availed insurance from damage and theft from OP No.1. Complainant immediately lodged an insurance claim on phone to which OP No.1 replied on 11.7.2016 that the claim has been confirmed. On 21^st July, 2016, Complainant went to OP No.2 where his mobile was taken by authorized person for repair, a job sheet was issued to the Complainant It was informed to the Complainant that the mobile would be returned within a period of 45 days. OP No.1 failed to keep up the commitment. On 23^rd September, 2016, after about two and half months, Complainant sent an e-mail asking about the status of the mobile phone. OP No.1 apologised for the  delay caused. It was committed that the mobile phone would be returned in the second week of October, but it was not complied. Complainant is in designing business and needs a premium phone for daily purposes. Due to that Complainant purchased a new phone to meet his regular requirement. Thereafter, Complainant lodged a complaint before the Consumer Affairs Dept. but dispute could not be resolved. So, Complainant filed this case.

            OP No.3 filed written version and denied the allegations of the complaint. Further, OP No.3 has stated that Complainant is not a consumer within C.P.Act, 1986. It is also submitted that OP No.3 being the manufacturer is not liable in any way. So, he has prayed for dismissal of the complaint. OP No.1, 2 & 4 did not file written version and contest the case and so the case is heard ex-parte against them.

Decision with reason

            Complainant filed affidavit-in-chief to which OP No.3 filed questionnaire to which Complainant filed affidavit-in-reply. OP No.3 filed a petition praying for treating the written version as affidavit-in-chief against which Complainant filed questionnaire against which OP No.3 filed affidavit-in-reply.

            Main point for determination is whether the Complainant is entitled to the relief as prayed for.

            On perusal of the prayer portion, it appears that Complainant has prayed for refund of Rs.53,900/-. Complainant has filed documents to show that he purchased the mobile after paying Rs.53,900/-. It is the allegation of the Complainant that his mobile phone did not work properly when it was within warranty period. Complainant made tireless effort to get it repaired through the Ops, but they could not repair it despite keeping the mobile for sufficiently long period. This makes it clear that OPs sold a defective mobile

            In this regard, OP No.3 has put up a defence that he being the manufacturer has no liability towards it. Further, it appears that the Complainant insured his mobile with OP No.1 and OP No.2. So, it becomes the liability of OP No.1 & OP No.2 to indemnify the Complainant for the losses suffered by the Complainant. However, if a purchaser takes insurance of the articles purchased that does not mean that the liability of manufacturer and dealer OP No.3 & 4 gets exempted. Since the mobile was within warranty period, the primary liability is of OP No.3 and OP N0.4 and if OP No.3 and OP No.4 refund the purchased amount to Complainant, it becomes the obligation of OP No.1 and OP No.2 to indemnify OP No3 and OP No.4. Complainant has also prayed for a sum of Rs.24,077/- which he paid for purchasing a new mobile. In this regard, it is clear that since Complainant required new mobile for his work, he was compelled to purchase a new mobile. But, amount of purchase can only be ordered to be refunded once the new mobile is returned to the OPs, which does not appear to be justified. In addition, the Complainant has prayed for Rs.50,000/- for deficiency in service. This cannot be allowed because the price of the mobile if ordered to be refunded the question of direction to pay Rs.50,000/- for deficiency in service does not arise.

            Further, Complainant has prayed for compensation of Rs.50,000/- and litigation cost of Rs.15,000/- . To our mind if compensation of Rs.10,000/- and litigation cost of Rs.5,000/- is awarded object of justice would be served.

            Hence,

ordered

            CC/126/2017 and the same is allowed on contest against OP No.3 and ex-parte against OP No.1, 2 & 4. All the OPs are directed to refund Rs.53,900/- to the Complainant within two months of this order. In default this amount shall carry interest @ 10% p.a. In case this amount is paid by OP No.3 & OP No.4, they are to be indemnified as per the insurance agreement with the Complainant by OP No.1 and OP No.2. In addition, all the OPs are directed to pay Rs.15,000/- to the Complainant within this period, in default this amount shall also carry interest @ 10% p.a. from the date of this order till realization. The liabilities of OPs are joint and several in nature.