Jammu and Kashmir

Jammu

CC/397/2017

CHARANJIT SINGH - Complainant(s)

Versus

DTDC COURIER - Opp.Party(s)

PARAMJEET KOUR

14 Mar 2018

ORDER

              DISTRICTCONSUMERDISPUTES REDRESSAL FORUM,JAMMU

      (Constituted under J&K Consumer Protection Act,1987)

  

Case File No.             406/DFJ                

 Date of  Institution    29-12-2015              

 Date of Decision        06-03-2018

 

Arun Kumar,

S/O Sh.Nath Ram Dingra,

R/O 237/5,Ekta Vihar,

Kunjwani Near JK Public School,

Tehsil & District Jammu.

                                                                                                                                                                Complainant

                   V/S

1.The New India Assurance Company Ltd.

  Through its General Manager,Aquaf Complex,

 A-Block,2^nd Floor,Gandhi Nagar,Jammu.

2.General Manager/Head,Biscoot Claim Point,

4 B/B Gole Market,Gandhi Nagar,Jammu.

3.21^st Century Mobile Store,Near Gurudwara,

  Gandhi Nagar,Jammu.

                                                                                                                                                     Opposite parties

   CORAM

                  Khalil Choudhary (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                Member

                  Mr.Ghulam Sarwar Chauhan                             Member

 

In the matter of  Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Aditya Sharma,Advocate for complainants, present .

Mr.Rupinder Singh,Advocate for OP1,present.

Mr.Sahil Sharma,Advocate  for OP2,present.

Mr.Hunar Gupta,Advocate for Op3,present.

 

 

 

ORDER.

                      Grievance of complainant lies in a short compass, in that he had purchased an Apple-I phone being IMEI No.359237068398622  on,25-04-2015 for sale consideration of Rs.50,900/-from OP3,copy of bill is  annexed as Annexure-A.According to complainant,OP3 advised him to get his handset insured, so that in case of any damage to his handset, then the same loss can be compensated and  on the advise of OP3 he get his handset insured with OP2 and an amount of Rs.2,500/- had also been paid to OP2 as premium for one year, copy of invoice is annexed as Annexure-B.Complainant further submitted that OP1 is the Insurance Company and had insured shot format Digital Works Pvt.Ltd.for the benefit of customers, purchased of insured equipment and OP2 is insured by OP1 so that in eventuality of any loss or damage to the digital products of the customers, the same can be reimbursed. Allegation of complainant is that in the month of December, the said handset suffers accidental physical damage and then stopped working, he approached OP3 immediately so that the handset can be repaired and loss can be reimbursed to him. According to complainant when he narrated whole story and asked for payment of same, the OP3 asked him to approach the office of OP2 and when he approached OP2 with whom he got his handset covered under insurance scheme,OP2 surprisingly told him that his mobile is not registered with the Company, but when complainant showed  the invoice of their company,OP2 tried to escape from liability on one pretext of the other. Complainant further submitted that since the handset purchased by him was well within warranty period,therefore,Ops are under obligation to pay compensation to him, but till date neither the defects have been rectified nor any compensation has been paid to him and this act of Ops constitutes deficiency in service. Hence  complaint on hand. In the final analysis, complainants claimed refund of cost of mobile and compensation under different heads to the tune of Rs.40,000/-.

            On the other hand,Ld.Counsel for OP1 caused appearance, but did not choose to file written version within stipulated period of 45 days,therefore,its right to file written version was closed vide order dated 11-04-2016.

               On the other hand,OP2 filed written version and resisted the complaint on the ground that  complainant has provided wrong information in the presentation form which required corrections. Upon several request, complainant failed to register his insurance online and follow instructions given in the handbill of insurance. The said negligence of complainant resulted in the failure to register the claim within 15 days from the date of purchase. The Op2 further submitted that complainant failed to provide any damage estimate from mobile company and also failed to provide estimate of damage from authorized service centre of Apple. The OP2 further submitted that there is no deficiency of service on the part of OP2,the OP2 is promoter of OP1 and not liable for any liabilities against damages claim compensation towards insurance coverage services of OP1.Lastly it is prayed that complaint be dismissed.

         At the same time,OP3 filed written version and resisted the complaint on the ground that the present complaint is not maintainable against answering Op on the short point that the present complaint is totally false and frivolous one and the complainant had not approached the Forum with clean hands and is also liable to be dismissed on the point that the complainant has not purchased the said handset from answering OP and the said fact can well be verified from the bill annexed by the complainant with the complaint, wherein the name of the seller is shows as Vinay Associates-GATI GKE Pvt.Ltd.Andhra Pradesh and the bill annexed further in unequivocal terms shows that the complainant has purchased the said handset through SNAPDEAL.COM an online sales portal. The Op3 further submitted that complainant is not known nor he has ever visited the shop of answering OP in connection with the said handset, as such the question of advising the complainant to get his handset insured from the said Biscoot Claim Point as is alleged in the complaint, as such the present complaint is also liable to be dismissed on this point also as no cause of action has accrued to the complainant which warrants the complainant to array answering Op as a party OP in the complaint. Lastly it is prayed that complaint may be dismissed.

                               Complainant adduced evidence by way of duly sworn evidence affidavit. Complainant has placed on record copy of retail invoice and enrollment form.

               We have perused case file and heard L/Cs for the parties at length.

                 L/C appearing for complainant submits that the handset was marred by defects in the month of December, but Ops failed to remove defect, which constitutes deficiency in service.

                    L/C appearing for Ops contended that they are neither manufacturer nor service provider,therefore,complaint on hand is bad for mis-joinder.At the same time,L/C appearing for OPs inter alia,would submit that Apple India Private Ltd is a company incorporated under the Companies Act,1956,which can be sued in its corporate name, but complainant has filed complaint against The New India Assurance Company Ltd.,General Manager/Head Biscoot Claim Point and 21^st Century Mobile Store,who are neither necessary parties, nor proper parties,therefore,complaint is liable to be dismissed for non-joinder and mis-joinder of necessary parties.

                     Preliminary point raised by Ops regarding maintainability of complaint is no more res-Integra, as same has been settled down by judicial pronouncements. Hon’ble High Court while dealing with similar issue in University of Jammu V/S Brinder Nath(1999 SLJ 421), in para 14 held as follows

     14.It is settled that where a corporate body does not sue or is not sued in its corporate name, then the proceedings so initiated would not be inconformity with law. This aspect of the matter was directly considered by this court in the case reported as 1978(NOC)114.

      This was a litigation preferred by the university. This was not initiated in the name of the university. It was held that this litigation is to fail on this short ground alone. The opinion which was expressed by this court in the case referred to above, would be found reflected in some other judicial pronouncements also. Thus in Bawa Bhagwan Dass v.Municipal Committee,Ropar AIR 1943 Lahore 318,as appeal preferred by the Municipal Committee without there being a resolution on its part was held to be not properly filed. Similar view was expressed by the Punjab and Haryana High Court in Municipal Committee Ludhiana V.Surinder Kumar 1970 Cur.L.J.631.The Punjab Agricultural University v.Walia Brothers (1969)71 Pun.L.R. 257 is another decision for the same preposition. Proceedings initiated without valid resolution on the part of corporate body were held to be bad. In the present case, the position is inreverse.The university is not sued in its corporate name. The objection in this regard was taken. No step was taken to take remedial measures. As, such the appellant university is right in its submission that the proceedings initiated against it were not properly initiated.

 

                  In view of settled preposition of law, we are of the opinion that complaint suffers from non-joinder and misjoinder of necessary parties, as Apple India Pvt.Ltd and Service Centre of Apple India Pvt.Ltd.were required to be arrayed in its corporate name,therefore,proceedings are not initiated in terms of law. It is also to be noted that in absence of job card, how this Forum came to know as to what type of defect occurred in the handset purchased by the complainant. The burden to prove that complainant had purchased handset from OP3 was on complainant, but he failed to discharge the  initial onus, therefore, question of deficiency in service do not arise,resultantly,we are of the opinion that in view of failure of complainant to substantiate his allegations, renders the complaint perfunctnary and  tall tale story, unworthy of reliance.

                  Therefore, we are of the opinion that complainant has failed to prove his case against the Ops, therefore, proceedings are not initiated in terms of law.

                    In afore quoted back drop, complaint fails, accordingly, same is dismissed. However, in the facts and circumstances of the matter, parties are left to bear their own costs. File after its due compilation be consigned to records.

  Order per President                                         Khalil Choudhary

                                                                    (Distt.& Sessions Judge)

                                                                          President

Announced                                               District Consumer Forum

 06-03-2018                                                       Jammu.

 

Agreed by                                                               

      

 Ms.Vijay Angral           

 Member     

 

Mr.Ghulam Sarwar Chauhan,

Member.