Complainant Mrs. Gopika Gupta through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the complaint may kindly be allowed and the opposite parties may be directed to make payment of claim amount alongwith interest @ 18% per annum with heavy costs. Opposite party be further directed to pay an additional amount of Rs.50,000/- on account of mental agony, harassment and inconvenience suffered by him at their hands alongwith Rs.15,000/- as litigation expenses.
2. The case of the complainant in brief is that she had purchased the mobile phone, Iphone 5S, IMEI No.352083076823186 from retail concern, Mobile Hut, Gandhi Chowk Pathankot-145001 who offered to get the said phone insured by Syska Gadget Secure vide coupon code no.56603386 and Barcode No.64405969. On 18 September 2016, some kind of problem occurred on its display and to get it rectified under the Syska Gadget Secure Plan, she registered complaint no.1609186590 through the online portal. She was instructed to upload self-attested copies of various documents like UID, Bank Passbook and invoice etc. at the online portal, which were duly followed by the her and all desired documents were uploaded well in time. The cell phone alongwith the box was taken by the representative vide pickup receipt No.1017910040574/SERVIFY (1609186590) against order ID No.160918659014. She wrote several emails on different dates on 6 November 2016, 12 November 2016 and 17 November 2016. On 19 November 2016 she came to know from the email, SMS and Customer Care Executive that her case has been closed due to missing stamp and signature on the invoice. She talked to the customer care executive on 180030027090 and narrated the whole story and she was assured after checking the complete documents that there is no deficiency on her part and told her to write an email for reopening of the case. She again wrote several emails on different dates. However, Syska Gadget Secure approved the claim on 13 Jan 2017 after delaying it for so many months for an amount of Rs.16,500/- and their representative informed her telephonically that she had to sent Accessories and Charger at the address mentioned on the online portal and upload the details at the online portal and she followed the instructions and sent the necessary accessories and charger on 26 Jan 2017. After completing the all formalities she contacted number of times for the settlement of claim as per terms and conditions but every time she was told to wait for some more time. At last she had sent the legal notice on 13 May 2017 to the opposite party for the payment of claim amount but of no use. She felt very disappointed after checking the online status of her claim which shows that the claim amount has been paid by the opposite party. But no amount was credited on account of her claim settlement. She requested the opposite party several times to settle her claim, but of no avail. Hence this complaint.
3. In exparte evidence, counsel for the complainant tendered into evidence affidavit of Mrs.Gopika Gupta Ex.CW-1/A alongwith other documents Ex.C-1 to Ex.C-8 and closed the evidence.
4. We have carefully examined all the documents/evidence as made available on the complaint records (as duly put forth by the participating litigants) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional non-participation of the lone but prime opposite party insurers (hereinafter, for short the OP) and instead preferring ex-parte proceedings, in the very back-drop of arguments as put forth by the learned counsel for the prosecuting complainant side.
5. We find that the complainant had on record purchased (affidavit Ex.CW1/A) one 5S (IMEI # 352083076823186) I-Phone from the local dealer vendor vide Bill # 52805 (Ex.C1) of 17.05.2016 for Rs 22,000/- and got it insured/secured from the titled opposite party insurers (‘SYSKA’ as its trade-name) @ Rs.2,999/- covering all usual risks as per the exhibits Ex.C2 and Ex.C3. However, the I-Phone (in question) started malfunctioning on 18.09.2016 as duly reported to the OP who got the device collected against the usual proper Pick-up Receipt. Somehow, the OP Syska did fail to repair/ return the defective device or refund its cost-price to the present complainant who had repeatedly approached the OP many a times during the intervening period of more than one year and thus prompted the present complaint for replacement/refund etc along with the suitable cost and compensation etc.
6. We find that the present complainant has successfully proved all his complaint contented allegations vide his deposition (affidavit Ex.Cw1/A) as duly accompanied with other evidentiary documents Ex.C1 to Ex.C8; whereas the OP insurers preferring to be proceeded against ex-parte (by staying away from the present proceedings) has further strengthened the trite judicial presumption that an intentional absentee/ex-parte litigant has no legs to stand in the witness box to plead his defense/no cogent and acceptable defense to plead. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to endow undue enrichments upon the ‘awardee’ and/or to cast undue excessive ‘distress’ to the delinquent opposite party.
7. In the light of the all above, we find the hue of actionable statutory merit in the present complaint and thus ORDER the opposite party insurers to replace the I-Phone Device with a brand New and Fresh piece of I-Phone of exactly the same specifications and/ or otherwise to refund full invoice amount of Rs.22,000/- to the complainant besides to pay him Rs.5,000/- as cost and compensation within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of the present orders till actual payment.
8. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
June,11 2018 Member
*MK*
