Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 566.
Instituted on : 26.09.2017.
Decided on : 14.05.2019.
Himanshu son of Sh. Bikha Ram, age 27 years, Resident of H.No. 1005/25, Circular Road, Old Power House, Chinyot Colony, Rohtak.
.......................Complainant.
Vs.
- Deshmesh Khalsa Mobile, Gohana Road, Rohtak, through its Proprietor.
- Syska Gadget Secure, Leehan Retails Pvt. Ltd., 4th Floor, Sapphire Plaza, Plot No. 80, S. No. 232, New Airport Road, near Symbiosis College, Sakore Nagar, Viman Nagar, Pune, Maharashtra-411014 through its Manager.
3. Apple India Private Limited, 19th Floor, Concorde Tower C, UB City No. 24, Vittal Mallya Road, Bangalore 560001 through its Managing Director.
4. B2X Service Solutions India Pvt. Ltd., Apple 207, 2nd Floor, NDM2 Mall, Netaji Subhash Palace, Wazirpur, New Delhi- 110023 through its Manager/Incharge.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
DR. RENU CHAUDHARY, MEMBER
Present: Sh. P.K. Arora, Advocate for complainant.
Opposite party No. 1 already exparte.
Sh. Nikesh Kinra, Advocate for opposite party No. 2.
Sh. Kunal Juneja, Advocate for opposite party No. 3.
Sh. Gagan Singla, Advocate for opposite party No. 4.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that on 21.10.2015, the complainant has purchased a handset of Apple Iphone 6 16 GB - Gold having IMEI No. 352024071806230 for Rs. 44,500/- including insurance charges from the respondent No.1, which is manufactured by opposite party No. 3. The period of insurance was from 21.10.2015 to 20.10.2016. It is alleged that at the time of purchasing of said mobile, the opposite parties No. 1 and 2 assured him that in case of any kind of risk to the handset with a period of six months, then 100% claim would be given or mobile set would be replaced and after six months, in case of any risk, 50% claim would be payable by them or after taking some amount from the complainant, the mobile set would be replaced. That on 04.10.2016 at about 11.15 A.M, the mobile phone fell down from the pocket of the complainant while he was going on his motorcycle and the handset in question had damaged. Information to this effect was given to the opposite parties No. 1 and 2 on the same day and complainant submitted the required documents. That employee of respondent No. 2 came to the complainant and took the handset. On 06.12.2016, the respondent No. 2 sent a message to the complainant that your device/documents have been collected by service center i.e. respondent No. 2. On 08.12.2016, another message was sent to the complainant to the effect that your claim has been approved and you will get replacement for your handset after payment of Rs.12,375/-. The complainant had deposited an amount of Rs.12,375 on 31.12.2016 in the account of respondent No. 4 as directed by respondent 2, but till today the mobile set has not yet been replaced. It is further alleged that due to said reasons, the complainant had to purchase another new handset. The complainant requested the opposite parties, number of times to replace and give the new set to him, but all in vain. That the act of opposite parties is illegal and there is deficiency in service on the part of opposite parties. As such, it is prayed that opposite parties may kindly be directed to replace and give the new set to the complainant and also to pay a sum of Rs. 50,000/- as compensation and Rs. 11,000/- as litigation expenses as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties. Notice sent to opposite party no.1 was received back duly served but none appeared on behalf of opposite party No.1 and as such opposite party No. 1 was proceeded against exparte vide order dated 13.11.2017 of this Forum.
3. Opposite party No. 2 in its reply has submitted that the complainant was instructed to deposit the 50% of invoice amount as per replacement clause for replacement of the product of complainant. But the complainant failed to deposit the amount as per terms of insurance and also not gave any other option for refund as per terms of insurance.. All the other contents of the complaint were stated to be wrong and denied and opposite party No. 2 prayed for dismissal of complaint with cost qua the opposite party no. 2.
4. Opposite party No. 3 in its reply submitted that the IMEI number provided by the complainant does not tally with the answering respondent’s records, hence it can not be established that it is a genuine iPhone. It is further submitted that the complainant is relying on the correspondence of the opposite party No. 2 with regard to his claim. There is no document produced to the show that opposite parties No. 3 and 4 inspected the mobile in question. It is further submitted that there is no record of the complainant’s mobile with opposite party No. 4 or any of the opposite party’s No. 3 authorized service providers. The opposite party No. 3 is not responsible for the insurance issued by the opposite party No. 2 nor it is aware or responsible for the complainant’s mobile in custody of opposite party No. 2. Opposite party No.3 does not provide any insurance on its products. All the other contents of the complaint were stated to be wrong and denied and opposite party No. 3 prayed for dismissal of complaint with cost qua the opposite party no. 3.
5. Opposite party No. 4 in its reply submitted that the respondent No. 2 never collects the handset from the customer of respondent No. 2. Respondent No. 2 always collect the handset of their customer and also delivered them by his own. It is further submitted that after receiving the said handset, respondent No.4 gave the estimate amount of replacement to the respondent No. 2 which cost Rs.24,750/- for the replacement on 06.12.2016 and same was approved by the respondent No. 2 on 08.12.2016. After that respondent No. 4 received the payment of Rs.12,375/- through the customer of respondent No. 2 on 02.01.2017. It is further submitted that respondent No. 4 received the amount on behalf of the respondent No. 2 for replacing the handset. After receiving the payment, respondent No. 4 diagnose the problem and rechecked the handset but after rechecking the handset, respondent No. 4 noticed that there was a heavy dents on back penal which can not be considered in replacement price because as per terms and condition of respondent No. 3, if there was a heavy dent, then same handset would be replaced on stock price and at the same time respondent No. 4 gave the revise estimate to the respondent No. 2 which is Rs.40,120/-. That after receiving the new estimate report respondent no.2 told the opposite party No.4 and complainant that they will consider the said handset as total loss case and also directed the complainant to upload the original invoice of the handset within 30 day. But the complainant did not upload the original invoice due to which respondent No. 2 rejected the case and closed it and directed the respondent No.4 to return the handset to them without repairing/replacing it and same was sent to respondent No. 2 through blue dart on 22.07.2017. All the other contents of the complaint were stated to be wrong and denied and opposite party No. 4 prayed for dismissal of complaint with cost qua the opposite party no. 4.
6. Ld. counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C21 and closed his evidence on dated 31.05.2018. On the other hand, ld. counsel for the opposite party No. 2 made a statement that the reply already filed be read as affidavit in evidence, tendered documents Ex.R2/1 and Ex.R2/2 and has closed his evidence on dated 04.12.2018. On the other hand, learned counsel for the OP No. 3 has tendered affidavit Ex.RW3/A, documents Ex.R3/1 & Ex.R3/2 and has closed his evidence on dated 29.08.2018. Learned counsel for the opposite party No. 4 has tendered affidavit Ex.DW4/A and documents Ex.DW4/1 to Ex.DW4/5 and has closed his evidence on dated 06.12.2018.
7. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
8. After going through the file and hearing the parties it is observed that complainant had purchased the mobile set on 21.10.2015 and insured the same from the opposite parties w.e.f. 21.10.2015 to 20.10.2016. As per complaint and affidavit filed by the complainant, the mobile set in question was damaged due to falling of same from his pocket as he lost his balance while driving his motorcycle. Complainant lodged his insurance claim with the opposite parties and opposite party No.2, as per its message Ex.C6 has submitted that the complainant will get replacement of his handset after payment of Rs.12375/-. Accordingly the complainant had deposited an amount of Rs.12375/- on 31.12.2016 in the account of the opposite party’s bank account. But the opposite party no.2 closed the claim of the complainant on the ground that the complainant has not submitted the required documents which was replied by the complainant vide Ex.C15 dated 15.04.2017, submitting therein that he had already submitted all the required documents. But till date the mobile set has not been replaced by the opposite parties despite depositing the amount of Rs.12375/- in the year 2016 by the complainant. Hence the act of opposite parties is illegal and amounts to deficiency in service. At the time of arguments, ld. counsel for the complainant has stated that the complainant had already purchased a new handset and now he is not in need of another handset and as such has prayed for refund of price of mobile set. This fact has also been mentioned in the affidavit Ex.CW1/A by the complainant that due to non replacement of mobile by the opposite parties, he had purchased a new handset.
9. In view of the facts and circumstances of the case, complaint is allowed and we hereby direct the opposite party No.2 to refund the price of mobile set i.e. Rs.44500/-(Rupees forty four thousand five hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 26.09.2017 till its realization and also pay a sum of Rs.5000/-(Rupees five thousand only) as compensation and litigation expenses to the complainant within one month from the date of decision. The mobile set in question is already in the possession of opposite party No.2.
10. Copy of this order be supplied to both the parties free of costs.
11. File be consigned to the record room after due compliance.
Announced in open court:
14.05.2019.
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Nagender Singh Kadian, President
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Ved Pal Hooda, Member.
……………………………….
Renu Chaudhary, Member
