BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Complaint Case no.100 of 2018
Date of Institution: 12.03.2018
Date of Decision: 25.04.2019
Madan Lal son of Sh.Prabhu Dayal, near Ram Dev Mandi, Khajuwala (Raj.) now resident of Khurana Auto Store, Dabwali Road Sirsa.
………Complainant.
Versus
- Deol Mobile, Shiv Chowk Circular Road, Sirsa through its prop.partner.
- New India Assurance Company Limited through its Divisional Manager Sirsa.
- YMS Mobitech Pvt. Ltd. 1175, Behind Haldiram Sector 63 Delhi through its Managing Director/Auth.person.
……… Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. R.L.AHUJA ………………. PRESIDENT
SH. ISSAM SINGH SAGWAL ……MEMBER
MRS.SUKHDEEP KAUR……………MEMBER
Present: Sh. Dinesh Kumar, Advocate for complainant.
Sh. A.S. Kalra, Advocate for opposite party no.2.
Opposite parties No.1 & 3 exparte.
ORDER
In brief, case of complainant is that on 21.01.2017, the complainant purchased a mobile of Redmi 3 S Prima bearing IMEI No.863819039220388 & 8638139220396 on payment of Rs.8999/- vide bill No.4394 dated 21.01.2017 and the Op No.1 got the same insured through Op No.2 vide master policy No95000046161100000001 on payment of Rs.899/-. After three months of purchase, the mobile started creating problems i.e. Auto Off, charging problem, display problem besides camera problems etc. The complainant visited Op No.1 but the Op No.1 asked that he will either get the phone replaced or to return the cost and kept the same with him. The Ops did not do the needful; therefore, the complainant got served legal notice upon them but in vain. The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice on their part.
2. On notice, opposite party No.2 appeared and filed its reply wherein it has been submitted that the present complaint is not maintainable; that the complainant has cause of action to file the preset complaint and there is no deficiency in service on the part of replying Op. The insurance is always for the damages or theft and not for manufacturing defect. Even otherwise, manufacturing defect cannot be presumed merely on the assertion, assumption and presumption of complainant, rather for proving the manufacturing defect, report of expert is required, in absence thereof, the contention cannot be believed. The alleged policy number relates to Calcutta office and mere referring and mentioning the policy number does not prove and connect the coverage of mobile of complainant. The complainant is not entitled for any relief as he did not suffer any harassment, mental tension and pain etc due to any act on the part of answering Op. Other contentions have been controverted and prayer for dismissal of the complaint has been made. Op No.1 did not appear before this Forum, despite service, therefore, it was proceeded against expartae vide order dated 22.10.2018 whereas the notice was sent to Op No.3 through registered RC but none had appeared on its behalf even after expiring of period of 30 days, therefore, it was proceeded against exprate vide order dated 26.11.2018.
3. Thereafter, the complainant and appearing Op led their respective evidence.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A, in which, he has reiterated all the averments made in the complaint. He has also produced bill issued by Op No.1 Ex.C1, online bill Ex.C2, legal notice Ex.C3, aadhar card Ex.C4 and claim form of insurance Ex.C5. On the other hand, the Op No.2 has tendered affidavit of K.S.Chaudhary Ex.R1, wherein he has deposed in terms of the written statement and also produced document policy schedule Ex.R2.
6. The perusal of the record reveals that it is undisputed fact that the complainant had purchased a mobile from Op No.1, which was manufactured by Op No.3 for a sum of Rs.8999/- with IMEI No.863819039220388 & 8638139220396, which was insured with Op No.2 on payment of Rs.899/- It is also proved fact, from the evidence of the complainant that after three months of its purchase the mobile was creating problems i.e. auto off, charging problem, display problem and camera problem etc. The complainant approached the OP No.1 to replace the mobile or to return the cost and also served legal notice dated 10.01.2018 upon the Ops as there was manufacturing defect in the said mobile. The dealer and manufacturer of the mobile were opted to be proceeded against exparte and the complainant has not led any evidence against the Op No.2/insurance company, therefore, the complaint against it stands dismissed.
7. It was the legal obligation of the Ops No.1 & 3 to provide proper service to the complainant, who has purchased the mobile from Op No.1 which was manufactured by Op No.3 for a valuable consideration of Rs.8999/- but they have failed to do so, which amounts to deficiency in service and unfair trade practice on their part.
8. In view of the above discussion, we allow the present complaint and direct the Ops No.1 & 3 to carry out the necessary repair and to make the same defect free and in working condition without charging any amount on account of expenses of repairing, and if, the same is not repairable, in that case, to give replacement with new mobile of the same make and model to the complainant or in the alternate to make a refund of Rs.8999/-, cost of mobile, within a period of 30 days from the receipt of the copy of order. We also direct the ops No.1 & 3 to further pay a sum of Rs.2000/- as composite compensation and litigation expenses to the complainant A copy of this order be supplied to the parties free of costs. File be consigned to record room.
Announced in open Forum. President,
Dated: 25.04.2019. District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
