Haryana

Ambala

CC/53/2017

Sonia Rani - Complainant(s)

Versus

Dashing Mobile world - Opp.Party(s)

In Person

01 May 2018

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; AMBALA.

Complaint No.53 of 2017.

Date of Instt.:16.02.2017.

Date of Decision: 01.05.2018.

Sonia Rani wife of Sh.Anuj Kumar resident of house No.2078/B-12, Shivpuri Colony, Ambala City Tehsil & District, Ambala.

 

...Complainant

     Versus

 

1.Dashing Mobile World, Opp. Indian Bank Near Jagadhari Gate Ambala City (Through its Auth. dealer for Apple Mobile)

2.Leehan Retail Pvt.Ltd. 4 SSK Saphire Plaza, Pune Airport Road, Near Symbosis College-PUNE-411101 (Through its insurance Manager/G.M).

3.Apple Care Ludhiana, Lower Ground Floor, Janak Towers Government College Road, Rose Enclave Maya Nagar, Ludhiana (Pb.) through its Service Manager.

4.Apple India Private Limited 19^th Floor Concorde Tower Cub City No.24,Vittal Mallya Road, Bangalore-560001 (through its G.M.)

5.New India Assurance Company Ltd. Regd. Office 87 Ground Floor, M.G.Road, Form, Mumbai-400001 (through its Manager).

 

..Opposite Parties.

Before:         SH. D.N.ARORA, PRESIDENT.

                   SH.PUSHPENDER KUMAR, MEMBER.

                   MS.ANAMIKA GUPTA, MEMBER.

 

Present:       Complainant in person.

                   OP No.1 exparte.

                   Sh.Sandeep Kashyap, Adv. for OP No.2.                    

                   Sh.Gurinder Singh, Adv. for OP No.3.

                   Sh.Rajeev Sachdeva, Adv. for OP No.4.

                   Sh.Sukam Gupta, Adv. for OP No.5.

 

ORDER

                   The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs) with the averments that he had purchased a mobile Apple I Phone-5 (s) bearing IMEI No.352084073509646  for a sum of Rs.24,500/- from OP No.1 vide bill No.9401 dated 10.01.2016. The mobile in question was insured vide coupon No.19328047 barcode 81721447 for one year and she had paid a sum of Rs.3,000/-.  The hand set was having one year warranty. On 27.12.2016 when the complainant was travelling by bus the above said mobile fell down from the pocket and due to this its ACC got damaged and affect functioning of the mobile. The complainant visited OP No.1 who advised to visit Syska insurance. He also deposited the documents as demanded by the insurance company through courier. On receipt of documents OP No.2 sent representative then official of Op No.3 get the above vide receipt No.1017910106713/Servify (JS4F6SV4B) with assurance that the same would be delivered soon after repair. The complainant requested the OPs to deliver the handset but to no avail. The act and conduct of the OPs clearly amounts to deficiency in service. In evidence the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C4.

2.                On notice none has turned up on behalf of Op No.1, therefore, it was proceeded against exparte. OP No.2 in its reply has taken preliminary objections such as cause of action, locus standi, concealment of material facts and maintainability etc.  The complainant had intimated about incident on 27.12.2016 and Op No.2 had provided CIN No.1612270388 to customer immediately on the same day, therefore, the complainant was to send the accessories with box and original bill etc. through courier but she denied, therefore, her claim was closed due to non-submission of accessories and box as per terms of insurance. There is no deficiency in service as the terms and conditions of the insurance alongwith complete kit was provided to the complainant. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                   Op No.3 in its reply has submitted that the allegations levelled by the complainant are baseless and has filed the present complaint with ulterior motive. OP No.3 is the service centre of smart phones of brand APPLE and neither is the manufacturer nor the seller. The warranty of the phone was expired on 09.01.2017. The subject matter is a subject between the insurance company and complainant being accidental damage, therefore Op No.3 has no concern with the same. The device was eligible for insurance claim as the complainant registered the claim before the expiry of period. Thereafter neither the complainant nor the insurance company has contacted to take the custody of the same from OP No.3. other contentions have been controverted and prayer for dismissal of the complaint has been made.

                   OP No.4 in its reply has submitted that the present complaint is not maintainable being filed with ulterior motive. The warranty does not apply to consumable parts such as (a) batteries or protective coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials or workmanship (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports unless failure has occurred due to a defect in materials or workmanship (c) to damage caused by use with a third party component or product that does not meet the Apple Product specifications etc. The inaction on the part of the complainant makes her disentitle for the alleged claim. The claim has to be paid by the insurance provider but she has unnecessarily dragged OP No.4 in the present complaint. Since the phone was damaged due to negligence of the complainant, therefore, it was out of warranty. The complainant has also not approached to this Forum with clean hands and has suppressed the material facts from this Forum. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                   Op No.5 has filed its reply wherein it has been submitted that the complainant has alleged that the phone was insured either with OP No.2 or with Syska gadget and in the complaint it has not been mentioned that mobile in question was insured with Op No.5. There is no deficiency in service on the part of OP No.5. Prayer for dismissal of the complaint has been made.

                   The appearing OPs have tendered affidavit Annexure RX, Annexure 3X and documents Annexure R1, Annexure R2, Annexure R5/1 and Annexure R5/2.

3.                We have the complainant and learned counsels for the appearing OPs and have gone through the case file carefully.

4.                Fact regarding purchasing of hand set from OP No.1 (Annexure C1) duly insured by OP No.2/5 (Annexure C2/Annexure R5/1) is established. The complainant has come with the plea that the mobile phone got broken during the subsistence of insurance period, which was valid for one year, but the OPs did not indemnify the loss suffered by him.  The sole ground for rejection of the claim of the complainant by Op No.2 is that she has not provided the accessories and box of the mobile as per terms and conditions of the policy. It is also not disputed that the handset after its damaged was deposited with Apple Care Ludhiana Annexure C3 sent through courier receipt Annexure C5. The Op No.3 in its reply has mentioned that the device is eligible for insurance claim as the claim has been submitted before the expiry of the insurance policy.  The Op No.2 has tied up with Op No.5 and this fact finds support from Annexure R1 i.e. terms and conditions and policy document. In this very document at Step No.5 it has been mentioned that all settlements will be cashless for partial loss, total loss, theft and burglary and handset of equivalent value and similar specification will be given in case of total loss theft and burglary. Any kind of damage due to negligence or intentional damage  the claims for the same will be rejected and All items are subject to a flat 10 % depreciation charges.  It is established on the case file that the mobile in question  is accidental damaged and there is nothing on the case file to show that it was intentionally damaged. It is worthwhile to mention here that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon’ble Apex Court in their judgements from time to time and is aimed at providing for better protection of the interests of the consumers as defined in the preamble to the Act itself but despite that the insurance companies are having tendencies to avoid the genuine claims on one pretext or the other and this is main reason of increasing of litigation between the insured and insurance companies.  Since the phone in question has got accidental damage and after that it is lying with the service centre, therefore, being insurer Op No.2/5  are liable to pay the claim because they have accepted the premium amount. The complainant has been able to prove his case against Op Nos. 2 & 5, therefore, complaint against Op Nos. 1 ,3 & 4 stands dismissed.

5.                          Keeping in view the above facts and circumstances, present complaint is hereby allowed with a direction to the Op Nos.2 & 5 to pay the billed amount Rs.24,500/- (Annexure C1) to the complainant after making necessary deduction of 10 % as deprecation charges (as mentioned in Step No.5 of Annexure R1) along with interest @ 9 % per annum from the date of filing of this complaint till its realization besides compensation of Rs.3,000/- for harassment, mental agony including litigation expenses. Though the Op No.2 & 5 are at liberty to collect the phone in question from the service centre. This order should be complied within a period of 30 days from the date of receipt of this order.  Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.

Announced on: 01.05.2018           

 

 

                                                                                                                                                   

(PUSHPENDER KUMAR           (ANAMIKA GUPTA)               (D.N.ARORA)

            MEMBER                              MEMBER                              PRESIDENT