Order dictated by:
Ms.Rachna Arora,Member
- Sheetal Singh complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant has purchased mobile having IMEI No. 356823077025174 vide bill No.249 dated 9.9.2016 for Rs. 11390/- from opposite party No.1. The mobile was duly insured with opposite party No.3 by paying a sum of Rs. 1250/- as insurance amount. The said mobile was damaged on 2.12.2016 due to fall down from the motorcycle. The complainant deposited the mobile with the care centre of opposite party No.3 and now the care centre has been closed. Opposite party No.3 has told the complainant that they will dispatch new mobile set or refund the cost of the mobile. On 6.4.2017 opposite party No.3 has returned the damaged mobile without any repair as such there is deficiency on the part of the opposite party. Vide instant complaint, complainant has sought for the following reliefs:-
- Opposite parties be directed to refund the cost of the mobile of Rs. 11390/- alongwith interest @ 18% p.a from the date of purchase or to replace the mobile with new one ;
- Compensation to the tune of Rs. 50000/- alongwith adequate litigation expenses may also be awarded to the complainant .
Hence, this complaint.
2. Upon notice, opposite party No.2 appeared and filed written version in which it was submitted that the handset in question has been physically damaged as mentioned in the job sheet generated by opposite party No.3 with whom the handset in question was insured. There is no inherent defect in the handset. Due to physical damage caused to the handset , it is not covered under warranty and due to breaking of display of the handset it was not covered under warranty and repair, if any, is to be done on chargeable basis only. The liability if any is of opposite party No.3 with whom the handset in question is alleged to be insured. Thus no cause of action arose to the complainant to file the present complaint against the answering opposite party. While denying and controverting other allegations, dismissal of complaint was prayed.
3. However, name of opposite party No.1 has been deleted from the array of the opposite parties on the statement made by the complainant on 8.6.2017.
4. Opposite party No.3 did not opt to put in appearance despite service, as such it was ordered to be proceeded against ex-parte.
5. In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex. C-1, copy of bill dated 9.9.2016 Ex.C-2, copy of job sheet Ex.C-3 and closed his evidence.
6. To rebut the aforesaid evidence Mrs. Preeti Mahajan,Adv.counsel for opposite party No.2 tendered into evidence duly sworn affidavit of Sh.Anindya Bose Ex.OP2/1, copy of warranty card Ex.OP2/2 and closed the evidence on behalf of opposite party No.2.
7. We have heard the complainant as well as ld.counsel for opposite party No.2 and have carefully gone through the record on the file.
8. On the basis of the evidence on record, ld. Counsel for opposite party No.2 has vehemently contended that the handset in question has been physically damaged due to accident as mentioned in the job sheet generated by opposite party No.3, with whom the handset in question was insured, as such it is not covered under warranty and repair, if any, is to be done on chargeable basis only. It has further been contended that there is no inherent defect in the handset. The liability, if any, is of opposite party No.3 ,with whom the handset in question is alleged to be insured. There is absolutely no cause of action accruing to the complainant to file the instant complaint against opposite party No.2 and it is,therefore, contended that the complaint is liable to be dismissed with cost.
9. But ,however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant purchased mobile phone in dispute on 9.9.2016 from opposite party No.1 on payment of Rs. 11390/- vide retail invoice , copy whereof is Ex.C-2 on record. The complainant got his mobile phone in dispute insured from opposite parties No. 3 . It was the case of the complainant that the said mobile was damaged on 2.12.2016 due to fall down from the motorcycle and as the mobile was duly insured with opposite party No.3, as such complainant deposited the mobile with the care centre of opposite party No.3 which has now been closed and opposite party No.3 issued job sheet to the complainant Ex.C-3. At that time opposite party No.3 told the complainant that they will dispatch new mobile set or refund the cost of the mobile. But, however, on 6.4.2017 opposite party No.3 has returned the damaged mobile without any repair . In this regard complainant has duly tendered his sworn affidavit Ex.C-1 as well as copy of job sheet Ex.C-3. But on the other hand the evidence adduced by the complainant in support of his case has gone unrebutted on record as the opposite party No.3,despite due service, did not opt to appear and contest the complaint. This means & imply that opposite party No.3 has no defence to offer and they impliedly admitted the claim of the complaint. However, opposite party No.2 is the manufacturer of the mobile phone and has no privity of contract between complainant and opposite party No.3 as the complainant himself got insured his mobile phone from opposite party No.3. It was not the case of the complainant that the mobile phone developed defects during warranty period rather it was the admitted case of the complainant that the said mobile was damaged on 2.12.2016 due to fall down from the motor cycle. So the liability, if any , is of the insurer, who insured the mobile phone of the complainant after taking premium to the tune of Rs. 1250/-.
10. In our considered opinion, complainant has proved on record the allegations made in the complaint against opposite party No. 3 and opposite party No.3 is under legal obligation to indemnify the loss of the complainant to the tune of Rs. 11390/- i.e. price of the insured mobile hand set . The complainant is also entitled to receive a sum of Rs. 2000/- on account of deficiency in service on the part of opposite party No.3 besides that the litigation expenses are assessed at Rs. 1000/-. Complaint against opposite party No.2 fails and the same is ordered to be dismissed against opposite party No.2. Compliance of this order be made within a period of 30 days from the receipt of copy of the order ; failing which , awarded amount shall carry interest @ 9% p.a.from the date of filing of the complaint until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 9.08.2017
