Chandigarh

StateCommission

A/181/2016

Xolo Mobiles - Complainant(s)

Versus

Dushyant Sharma - Opp.Party(s)

Devinder Kumar,Adv.

08 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	181 of 2016
Date of Institution	20.06.2016
Date of Decision	08.08.2016

 

Xolo Mobiles, A-56, Sector 64, Noida UP 201301 through its Managing Director.

                          

       …..Appellant/Opposite Party No.6.

                           Versus

1. Dushyant Sharma, r/o # 3652, Sector 46-C, Chandigarh.

                           .…..Respondent No.1/Complainant.

2. Pioneer Traders, SCO No.1038, Sector 22-B, Chandigarh, through it Proprietor.
3. Apps Daily Solutions Pvt. Ltd., D-3137-39, Oberi Garden Estates, Chandivilli Farm Road, Andheri (East), Mumbai through its Managing Director.
4. AKS Telecom, SCO No.101, Sector 47-C, Chandigarh, through its proprietor.
5. New India Assurance Co. Ltd., Bengaluru, through its Branch Manager-562158
6. F-1 Solution & Services Pvt. Ltd., SCO No.274, First Floor, Sector 32-D, Chandigarh through its Manager.

.…..Respondents No.2 to 6/Opposite Parties No.1 to 5.

BEFORE:    JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh.Devinder Kumar, Advocate for the appellant.

Sh. Dushyant Sharma, respondent No.1 in person.

Service of respondents No.2 to 6 dispensed with vide order dated 22.06.2016.

                                     

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 29.03.2016, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short ‘the Forum’ only), vide which, it allowed the complaint bearing No.353 of 2015, qua Opposite Parties No.3 and 6 (now appellant & respondent No.4) only and dismissed the complaint qua Opposite Parties No.1, 2, 4 & 5 (now respondents No.2,3,5 & 6), which reads thus:-

“17]      In the light of above observations, we are of the concerted view that the Opposite Parties No.3 & 6 are found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua OPs No.3 & 6 jointly & severally and dismissed qua OPs No.1,2,4 & 5.

         The Opposite parties No.3 & 6 are jointly & severally directed to pay a consolidated amount of Rs.12,000/- to the complainant, as compensation for causing mental agony and harassment on account of deficiency in service, within a period of 45 days of the receipt of this order, failing which they shall be liable to pay the awarded amount, along with interest @18% per annum, from the date of filing of the complaint till it is paid.”

2.           The facts, in brief, are that the complainant purchased a mobile XOLO Q1010i Blk from Opposite Party No.1 on 18.02.2015 for the sum of Rs.7500/- vide retail invoice (Annexure C-1), having one year warranty. It was stated that on the asking of Opposite Party No.1, the complainant also took insurance policy for the said mobile, being provided by Opposite Party No.2 through Opposite Party No.4 and paid an amount of Rs.499/- vide Annexure C-2.  Opposite Party No.1 also provided a user guide and scratch card of the insurance and as per the said user guide, theft, burglary and physical damage including the fluid damage was covered (Annexure C-3). It was further stated that the mobile of the complainant got damaged on 07.05.2015 and he approached Opposite Party No.5 for its repair being authorised service centre of Opposite Party No.6 and also filed claim with Opposite Party No.4 Company (Annexure C-4 colly.).  Thereafter, the complainant was informed by Opposite Party No.5 that it was no longer the authorized service centre. The complainant then duly sent emails to Opposite Party No.2 and he duly approached Opposite Party No.3, as per advice, and a job sheet & estimate was duly provided to him on 08.06.2015. It was further stated that the complainant gave his mobile for its repair to Opposite Party No.3. Copies of emails, job sheet and estimate are Annexures C-5 (colly.), C-6 & C-7. It was further stated that Opposite Party No.3 repaired the mobile and demanded the money from the complainant on the pretext that it did not have tie up with Opposite Parties No.2 & 4. It was further stated that the complainant visited the office of Opposite Party No.3 to collect the handset and then he was shocked to see that it was repaired very negligently and the outer parts were missing, so he requested Opposite Party No.3 to repair it in proper manner, as the claim is to be paid by the Insurance Company, but it (Opposite Party No.3) refused to do so.  Thereafter, the complainant also sent e-mails (Annexure C-8 colly.) to the Opposite Parties but neither the mobile was repaired nor the claim paid. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (in short the “Act” only), was filed.

3.           Opposite Parties No.1 & 3 did not appear, despite service. Hence, they were proceeded against exparte vide order dated 19.08.2015.

4.           Initially, Opposite Party No.5 put in appearance through Sh.Devinder Kumar, Advocate but later on, neither the Counsel nor any authorized representative put in appearance on its behalf. Hence, it was also proceeded against exparte vide order dated 06.11.2015. 

5.           In its written reply, Opposite Party No.2 (Apps Daily Solutions Pvt. Ltd.), admitted the sale and insurance of the handset, in question.  It was stated that Opposite Party No.2 never advised  the complainant to approach Opposite Party No.3 and Opposite Party No.3 had no tie up with Opposite Party No.2.  It was further stated that the complainant was advised to take up the matter with manufacturer regarding the repairs by authorised service centre and further Opposite Party No.2 is to indemnify the complainant. It was further stated that all the allegations are against Opposite Party No.3, who repaired the mobile and the claim of the complainant is in respect of the faulty repair of the mobile phone, therefore, the replying Opposite Party is not liable in any manner.  It was further stated that the replying Opposite Party, was neither deficient, in rendering service nor indulged into unfair trade practice.   

6.           In its written reply, Opposite Party No.4 (New India Assurance Co. Ltd.), admitted the insurance of the mobile handset, in question.  It was stated that after receipt of intimation regarding the loss, the claim was processed by the replying Opposite Party and approved for an amount of Rs.3350/-, against the estimate of Rs.3895/-, as per the terms & conditions of the Policy.  It was further stated that the claim of the complainant was not repudiated by the replying Opposite Party, as yet, hence the complaint is premature.  It was further stated that the claim of the complainant is pending, as he failed to deposit the original claim documents, as demanded vide email dated 16.05.2015.  It was further stated that all the allegations are against Opposite Party No.3, who repaired the mobile and the claim of the complainant in respect of the faulty repair of the mobile phone, therefore, the replying Opposite Party was not liable in any manner. It was further stated that the replying Opposite Party, was neither deficient, in rendering service nor indulged into unfair trade practice.   

7.           In its written reply, Opposite Party No.6 (Xolo Mobiles), admitted the sale of the mobile, in question.  It was stated that the complainant himself admitted that the unit got damaged on his own act, and there is no product warranty, as the product is barred by the warranty, as per warranty policy and also the complainant never approached the replying Opposite Party for any repair, as the same was insured by Opposite Party No.2 for any physical damage or theft etc. and so, insurer is liable.  It was further stated that there was no contract between the replying Opposite Party and Opposite Party No.5 regarding any insurance about the product by Apps Daily Solutions (Opposite Party No.2).  It was further stated that the complainant never approached the replying Opposite Party for repair of the handset and also the same was barred by warranty, since the mobile set was damaged.  It was further stated that the replying Opposite Party, was neither deficient, in rendering service nor indulged into unfair trade practice.   

8.           The parties led evidence, in support of their case.

9.           After hearing the complainant in person, Counsel for Opposite Party No.2, Opposite Party No.4 & Opposite Party No.6 and, on going through the evidence and record of the case, the Forum, allowed the complaint qua Opposite Parties No.3 & 6 only and dismissed the complaint qua Opposite Parties No.1, 2, 4 & 5, as stated above. 

10.         Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.6 (Xolo Mobiles).

11.         We have heard the Counsel for the appellant and respondent No.1/complainant in person, and have gone through the evidence and record of the case, carefully. 

12.         After giving our thoughtful consideration, to the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter.

13.         The core question, that falls, for consideration, before us, is as to whether the Forum rightly passed the impugned order. The answer, to this, question, is in the affirmative. The Counsel for the appellant submitted that in case of damage condition of the mobile, the Insurance Company would indemnify the loss and the Insurance Company before the Forum alleged that the claim of the complainant i.e. an amount of Rs.3350/- has been approved but the same is pending just for submission of claim documents on the part of the complainant. He further submitted that Apps Daily Solutions, before the Forum, alleged that AKS Telecom is not its authorized service centre and it has no tie up with AKS Telecom.

14.         Annexure C-1 is a copy of the retail invoice dated 18.02.2015. From this document, it is proved that the complainant purchased XOLO Q1010i Blk handset for the sum of Rs.7500/- from Pioneer Traders (Opposite Party No.1) and the same was insured from Opposite Party No.2 (Apps Daily Solution) on payment of Rs.499/- as premium, which was received by Opposite Party No.1, as is evident from Annexure C-2. It is also the admitted fact that the handset was covered under insurance cover, subscribed from New India Assurance Company Limited (Opposite Party No.4) vide terms and conditions (Annexure C-3). As per the terms and conditions, the handset was covered for all risks i.e. theft, burglary, fluid damage etc.  According to the complainant, the handset fell down and the same was damaged, within a span of three months. It is also true that the complainant approached Opposite Party No.5 for repair of the handset but Opposite Party No.5 seized to be the authorized service centre of Opposite Party No.6 and, as such, the handset was given to Opposite Party No.3 for repairs. It is also the admitted fact that the complainant duly followed the procedure of the claim and filled the required forms and sent a scanned copy of the same to Opposite Party No.4 (New India Assurance Company Limited), as is evident from Annexure C-4 (Colly.). It is also evident from the email dated 16.05.2015 (at page No.20 of the Forum file) that the Insurance Company assessed the claim amount of Rs.3350/- only on submission of necessary documents and other conditions. According to the complainant, Opposite Party No.3 repaired the handset and demanded the money on the pretext that it did not have tie up with Opposite Parties No.2 & 4 and when the complainant visited the office of Opposite Party No.3 and asked for his handset, he was shocked to notice that mobile has been repaired very negligently and also failed to make necessary repairs in a satisfactory manner. So, the Forum rightly opined that the present dispute with regard to the non-satisfactory repair of the damaged handset, in question, by Opposite Party No.3, which was duly insured at the instance of Opposite Parties No.1 & 2 and also he did not make the payment for repair of the handset to Opposite Party No.3 because it failed to repair the same to the satisfaction of the complainant. Even Opposite Party No.3 is the party, who told the current status of the handset, whether the same was fully functional or not and also raising curtains over the suspense of satisfactory repairs done by it. However, Opposite Party No.3 did not appear, despite service, before the Forum and, as such, it was proceeded against exparte.  So, the Forum rightly stated that the Opposite Party No.3 deficient in rendering proper service to the complainant with regard to the satisfactory service of the handset, in question, as it being the authorized service agent of Opposite Party No.6/appellant. Moreover, Opposite Party No.6 is the manufacturer of the handset and it is the responsibility of Opposite Party No.6 to control the activities of its service centres but it did not do so. So, we are of the view that the Forum has rightly held in para No.15, which reads thus :-

“15]      The Opposite Party No.6 while contesting the claim of the complainant, has tried to escape from its responsibilities towards the present dispute claiming that as no manufacturing defect has been alleged.  Opposite Party No.6 has also gone to the extent of claiming that its relationship with other Opposite Parties, is on “PRINCIPAL TO PRINCIPAL” or “principal to agent” basis. However, Opposite Party No.6 has not placed on record any such document from where it could be adduced that there was no occasion for the complainant to involve it in the present dispute and furthermore, that if at all, any such dispute did arise, the settlement of the same did not lay at the doorsteps of Opposite Party No.6.  We are of the opinion that as the mobile handset in question has been sold by Opposite Party No.1 and for all purposes of warranty terms & conditions of the brand new handset, sold by Opposite Party NO.1, deserved to be entertained by Opposite Party No.6.  Furthermore, in case of any dispute with regard to the repairs, which were to be conducted by the authorised representative of Opposite Party No.6, in the case present case – OPs NO.3 & 5, it was the sole responsibility of Opposite Party NO.6 to explain as to under what terms & conditions, its perspective product buyers could make use of such authorised service centres and if at all, a similar dispute that had arisen between the complainant and Opposite Party No.3, did not concern Opposite Party No.6, as per some specific agreement or terms & conditions that existed between the manufacturer Opposite Party NO.6 and the authorised service centre all across the country including Opposite Party NO.3 & 5.  Therefore, the act of Opposite Party NO.6 in claiming principal to principal or principal to agent relationship between it and its retailors and service centres, and not placing on record such terms & conditions amounts to concealment of material facts that would have been much help to this Forum to arrive at a definite conclusion.  Therefore, Opposite Party NO.6 too is held liable for either not controlling the activities of its service centres – in the present case is Opposite Party NO.3, or not proving its innocence or connect for all such acts of omission and commission of Opposite Party No.3 compels us to hold Opposite Party NO.6 liable for deficiency in service towards the complainant.” 

In view of the afore-extracted order passed by the Forum, we are of the view that there is deficiency, in service, on the part of the appellant/Opposite Party No.6 and, as such, the order of the Forum, being legal and valid, is liable to be upheld.

15.            Keeping in view the facts and circumstances of the case, the Forum was right, in allowing the complaint against the appellant/Opposite Party No.6, as stated above. Hence, the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

16.            For the reasons recorded above, the appeal, filed by the appellant, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the Forum is upheld.

17.         Certified Copies of this order be sent to the parties, free of charge.

18.         The file be consigned to Record Room, after completion.

Pronounced.

08.08.2016                                            Sd/-                 

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

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