Punjab

Ludhiana

CC/16/200

Himanshu Wali - Complainant(s)

Versus

Daily Assurance - Opp.Party(s)

Sandeep Singh Adv.

15 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 200 of 11.03.2016

Date of Decision            :   15.02.2017

 

Himanshu Walia son of Sh.Harish Walia c/o Chamber No.7023, 7^th Floor, New Lawyers Chamber Complex, District Courts, Ludhiana.

….. Complainant

                                                         Versus

 

1.Daily Assurer+ Assurance (App.daily) registered office App.Daily Solution Pvt. Ltd., D3137-39, Oberoi Garden Estates, Chandivali Farm Road, Andheri (E), Mumbai 400072 through its authorized signatory/authorized/representative/partners/ MD/Proprietor.

2.Ahuja Electronics Shop No.2, Mata Rani Chowk, Ludhiana-141008, through its authorized signatory/authorized/representative/partners/MD/Proprietor.

3.Daily Assure+ Assurance (App.daily) (Service Centre) Rasia Complex, Cabin No.7, Ist Floor, Near Shastri Nagar, Railway Crossing, Ludhiana.

 

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant                      :        In person             

For OPs                         :        Ex-parte

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, an Advocate by profession, purchased HTC 816G Plus mobile phone having batch No.356064063577072 for an amount of Rs.18,000/- vide invoice No.2173 dated 28.4.2015 and got the same insured vide invoice No.2174 dated 28.4.2015 by paying premium of Rs.1299/-. This mobile phone was purchased from OP2. Insurance covered all the damages including damage to the screen, theft, burglary and physical damage. The insurance was for period of one year. Complainant was taking due care of the mobile phone, but unfortunately, in October 2015, because of the accident by some person, the screen of the mobile phone stood damaged. Thereafter, the complainant deposited the mobile phone with the authorized service centre of OP1 situate near Fountain Chowk, Ludhiana. This mobile phone was received back after span of 15/20 days. On 17.11.2015, when the complainant was present at the parking lot, then accidently some unknown person hit, when complainant was holding the mobile phone in his hand for receiving a call. On account of that hit by unknown person, the mobile phone fell down and screen got damaged. Complainant informed the customer care service centre at toll free No.18002099060 on 17.11.2015. This complaint was registered at intimation Nos. AD_D_271015_2821852 and AD_D_231115_2858940 dated 23.11.2015. At the asking of customer service centre, complainant sent picture of the damaged mobile phone along with picture of account passbook and picture of cancelled cheque. Despite approach to the customer care service centre many times for knowing about the status report, they procrastinated  the  matter and have not redressed the grievance after lapse of 5 months. Then complainant approached local service centre i.e. OP3, but the officials of this centre also failed to give plausible reply. Complainant suffered mental harassment and as such, by pleading deficiency in service on the part of Ops, directions sought against Ops for repair of the damaged screen of the mobile phone or in the alternative to pay amount of Rs.8000/- on account of suffered loss. Further, compensation for mental harassment of Rs.50,000/- and Rs.21,000/- on account of litigation expenses sought.

2.                Ops are ex-parte in this case.

3.                Complainant in ex-parte evidence tendered his affidavit Ex.CA along with documents Ex.C1 to Ex.C6 including Ex.C4A and then closed the ex-parte evidence.

4.                Written arguments not submitted, but oral arguments addressed and those were heard. Records gone through minutely.

5.                Perusal of purchase invoice Ex.C4 reveals that the complainant purchased the mobile phone in question for an amount of Rs.18,000/- on 28.4.2015 from OP2. This mobile phone was insured on payment of premium of Rs.1299/- is a fact borne from the contents of bill/cash memo Ex.C3 dated 28.4.2015 itself. On the footnote of both Ex.C3 and Ex.C4, it is mentioned that guarantee/warranty valid in service centre only. In view of this endorsement on the footnote of Ex.C3 and Ex.C4 each, it is obvious that vendor not to provide guarantee/warranty, but that is to be provided by the service centre. Complainant purchased the mobile phone by paying the amount of premium and sale consideration through bills Ex.C3 and Ex.C4 and as such, he certainly got knowledge of terms and conditions of the guarantee/warranty endorsed on the footnote of Ex.C3 and Ex.C4 each, particularly when he is Advocate by profession. In view of acceptance of these terms and conditions, complainant now cannot claim the guarantee/warranty to be vendor i.e. OP2 because the guarantee/warranty will be provided by the service centre only. So, certainly complaint against OP2 is not maintainable and the same merits dismissal.

6.                As per the case of the complainant put forth through complaint as well as through affidavit Ex.CA, the mobile phone in question when held by the complainant in his hand on 17.11.2015 was hit by some unknown person, resulting in damage to the wind screen and that is why, he approached OP1 first and then Op3. These assertions contained in the affidavit Ex.CA are also borne from the contents of email correspondence Ex.C4A and Ex.C5 also. Despite this approach, grievance of the complainant not redressed. Complainant has produced proforma of estimation/quotation Ex.C1 along with retail tax invoice Ex.C2 for claiming that repair charges are of amount of Rs.12,200/-approximately,which required for rectifying the defects. Perusal of Ex.C3 reveals that mobile phone was insured with Daily Apps Assurance, who is the OP1, who is having its service centre i.e. OP3 at Ludhiana. In view of damage to the mobile phone in question, complainant entitled for reimbursement of the sustained loss, which in the relief clause of complaint mentioned as Rs.8000/- and as such, reliance on the proforma estimation/quotation Ex.C1 cannot be placed for finding that actually loss of Rs.12,200/- caused. Rather, proforma estimation/quotation Ex.C1 was obtained on 14.2.2017 that is much subsequent to the filing of the complaint on 11.2.2016 and as such, it is obvious that Ex.C1 is a procured document for creating evidence for getting more compensation than the claimed one through complaint. Law prohibits  unjust enrichment and as such, claim of the complainant qua sustained loss of Rs.8000/- alone can accepted.

7.                However, by keeping in view the terms of Ex.C6, it is made out that in case of damage claim put forth within seven days from the date of occurrence the user is required to deposit the damaged device, original proof of purchase, self attested proof of identification like Pan Card, driving license, Aadhar Card, Voter I.D. Card or any other photograph bearing identity card which has been issued by Governmental or Statutory authority along with photograph of user. So, these requirements has to be complied with by the complainant as mentioned at page no.3 of Ex.C6 and only thereafter, OP1 and OP3 under obligation for payment                of Rs.8000/-, the claimed damage amount.

8.                As a sequel of the above discussion, complaint allowed exparte in terms that Op1 and OP3 will make the payment of loss of Rs.8000/- to the complainant within 30 days from date of receipt of copy of this order, provided the damaged device, original proof of purchase, self attested proof of identification like Pan Card, driving license, Aadhar Card, Voter I.D. Card or any other photograph bearing identity card issued by Governmental or Statutory authority is produced with either OP1 or OP3 within 15 days from the date of receipt of copy of this order by complainant. OP1 or OP3, with whom, the mobile phone in question will be deposited by the complainant as per term of this order, will return the said mobile after verification to complainant within 30 days from the date of receipt of the same, so that the complainant after getting the payment of loss of Rs.8000/- may get the mobile repaired himself.   Compensation for mental harassment of Rs.2,000/- (Rupees Two Thousand only) and litigation expenses of Rs.1500/- (Rupees One thousand and five hundred only) more allowed in favour of complainant and against Op1 and OP3. Liability of Op1 and OP3 held as joint and several. Payment of these amounts be made within 30 days from date of receipt of copy of order. Complaint against OP2 is dismissed. Copies of order be supplied to parties free of costs as per rules.

9.                File be indexed and consigned to record room.

 

                   (Param Jit Singh Bewli)                              (G.K. Dhir)

                                              Member                                                  President

Announced in Open Forum                                                          Dated:15.02.2017

Gurpreet Sharma.