BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 183 of 2017
Date of Institution : 27.7.2017
Date of Decision : 13.03.2018.
Bharat Bhushan aged about 28 years son of Shri Satish Kumar, resident of Mandi Kalanwali, Tehsil and District Sirsa.
……Complainant.
Versus.
- Garg Mobile & Gift Gallery, Railway Bazaar, Mandi Kalanwali District Sirsa through its Proprietor.
- Appsdaily Solution Pvt. Ltd., Regd. Head office, D3137-39, Oberoi Garden Estates, Chandivali Farm Road, Andheri (E) Mumbai- 400072.
- Samsung India Electronics Pvt. Ltd., Samsung Head Quarter, 2nd, 3rd, 4th Floor, Tower C, Vipul Tech Square Golf Course Road, Sector-43, Gurgaon, through its Managing Director.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. Sunny Babbar, Advocate for the complainant.
Sh. Gurpreet Singh, Advocate for opposite party no.1.
Opposite party no.2 exparte.
Sh. A.S. Kalra, Advocate for opposite party no.3.
ORDER
The case of the complainant in brief is that complainant on 6.5.2016, had purchased a brand new mobile Samsung model S7 Edge from opposite party no.1 vide bill No.2292 dated 6.5.2016 for an amount of Rs.56000/-. On the same day, on the recommendation as well as advice of op no.1, the complainant got his mobile insured from op no.2 and had paid the requisite amount in this regard to op no.1. Vide insurance policy, all the risks including damages, theft and burning etc. were covered for a period of one year. At that time, an e-mail message was received by complainant from op no.2 that mobile of complainant has been insured with op no.2. That unfortunately in the month of January, 2017, the complainant met with an accident which resulted into the damage of his mobile particularly the screen of the same was totally damaged. The complainant immediately contacted with op no.2 and brought this fact of damage to the notice op no.2 and also requested to indemnify his claim. The op no.2 in this regard sent an email message dated 13.1.2017 to the complainant assuring him about their best services to process his claim at the earliest as per the terms of the protection plan. The op no.2 further asked the complainant to send mobile in question as well as requisite documents with regard to the mobile to op no.2 and complainant sent the mobile as well as claim documents to op no.2. On 16.1.2017, he received another email from op no.2 vide which the op no.2 admitted that mobile and documents have been received and assured that claim is under process. Thereafter, vide E-mail dated 19.01.2017, the op no.2 informed the complainant that his documents and phone under claim has been accepted and approved at the Customer Connect Point and the package will be dispatched shortly to its service centre for further processing. Two further E-mails dated 20.01.2017 and 23.01.2017 were also received by the complainant from the op no.2 in this regard. Thereafter, on 13.2.2017 an E-mail was received by the complainant from op no.2 vide which the complainant was asked to make payment of Rs.3360/- for the indemnification of his claim and assured the complainant that after the payment of the said amount his claim shall be successful and completed. The complainant in compliance of the E-mail message deposited the said amount with the op no.2 and on 13.2.2017 he received another E-mail vide which the op no.2 received by the op no.2 from the complainant and further he was asked to keep ready some documents for the indemnification of his claim. Thereafter, as per the E-mail dated 23.2.2017 it was assured by the op no.2 to the complainant that his claim has been approved for replacement and the hand set of the complainant would be received to him within a period of 7-8 working days. But it is necessary to mention here that vide this e-mail the op no.2 further asked the complainant to deposit a further sum of Rs.13440/- for the confirmation of his claim. Though, the complainant was not at all liable to make the payment of any such amount to the op no.2, but in order to get confirmed his claim, he under protest deposited the said amount of Rs.13440/- to the op no.2 through bank transaction. Since 23.2.2017 the complainant is kept on waiting for the further response of the op no.2 but neither the mobile in question has been received by the complainant nor any other information in this regard has been sent by the op no.2 to the complainant. Hence, this complaint.
2. On notice, opposite parties no.1 appeared and filed written statement taking certain preliminary objections of maintainability; no cause of action, the complainant has concealed the true and material facts and has not come to the court with clean hands, the complaint is false and frivolous to the own knowledge of the complainant and thus the same is liable to be dismissed with costs. On merit, it is submitted that the contents of the mobile being got insured by him from the op no.2 is denied for want of knowledge. It is denied that the alleged insurance policy was purchased by the complainant on the recommendation of the op no.1. the op never recommended the complainant to purchase any such alleged insurance policy. The alleged policy has been purchased by the complainant at his own. The answering op is only the authorized dealer of the op no.3 and the only function of the op no.1 is to sell the products manufactured by the op no.3 to the customers. The op no.1 in this manner has discharges its statutory duties by selling the mobile in question to the complainant and there is no violation of any law on the part of the answering op.
3. Opposite party no.2 did not appear despite service and was proceeded against exparte.
4. Opposite party no.3 appeared and filed written statement by submitting that the complainant has not provided all documents in support of the allegations made by him in the present complaint. It is further submitted that the answering op is to serve all its customers and provide goods at the most competitive price and also to enable most impeccable after sales service and there is no intent whatsoever to deny the same under any circumstances. In case any after sale service/quality issue is brought to notice of the answering op/service center, as a policy matter the same is immediately corrected as a matter of priority. It is further submitted that the case of the complainant is only against the insurance company as the unit of the complainant was damaged due to mishandling on the part of complainant as the complainant himself stated in his complaint that mobile of complainant was damaged due to mishandling on part of complainant and it is the insurance company who insured the unit of the complainant. it is pertinent to mention here that the complainant approached the Service Centre of the answering op on 23.9.2016 vide complaint no.4222108016 and reported some problem in his unit. The engineers of the answering op thoroughly checked the unit and front of the unit got replaced as per warranty policy and the unit is working in completely O.K. condition. After that complainant never approached the answering op and directly filed the present complaint. It is pertinent to mention here that the answering op cannot be held responsible for any act done by the op no.1&2. In fact the answering op is facing great hardship in defending such a false and baseless complaint against it.
5. The complainant produced his affidavit Ex. PW1/A, customer detail Ex.P1, copy of bill Ex.P2, copy of E-mail Ex.P3 to Ex.P10, copy of statement of account Ex.P11, copy of aadhar card of complainant Ex.P12 whereas ops have tendered affidavit of Naveen Kumar Ex.RW1/A, affidavit of Anindya Bose Ex. R1, acknowledgement of service request Ex.R2, copy of warranty card Ex.R3 in their evidence.
6. We have heard learned counsel for the complainant as well as learned counsel for ops no.1 and 3 and have perused the case file carefully.
7. Learned counsel for complainant has contended that it is proved that the complainant had purchased a brand new mobile Samsung model S7 Edge from opposite party no.1 vide bill No.2292 dated 6.5.2016 for an amount of Rs.56000/-. On the same day, on the recommendation as well as advice of op no.1, the complainant got his mobile insured from op no.2 and had paid the requisite amount in this regard to op no.2. Vide insurance policy, all the risks including damages, theft and burning etc. were covered for a period of one year. At that time, an e-mail message was received by complainant from op no.2 that mobile of complainant has been insured with op no.2. The complainant has averred that unfortunately in the month of January, 2017 the complainant met with an accident which resulted into the damage of his mobile particularly the screen of the same was totally damaged and at that time the mobile of the complainant was covered under the insurance policy purchased by the complainant from the op no.2. The complainant immediately contacted the op no.2 and brought this fact of damage of the mobile to the notice of the op no.2 and requested to indemnify the claim of the complainant under the insurance policy. The op no.2 in this regard sent an E-mail message dated 13.01.2017 to the complainant assuring him about their best services to process his claim at the earliest as per the terms of the protection plan. The op no.2 further asked the complainant to send mobile phone in question as well as the requisite documents with regard to the mobile in question to the op no.2 and complainant sent the mobile as well as claim documents to op no.2. On 16.1.2017, he received another email from op no.2 vide which the op no.2 admitted that mobile and documents have been received and assured that claim is under process. It has been stated by the complainant that the op no.2 accepted and approved his claim vide E-mail 19 January, 2017. Further assured him to keep him updated about the progress of his claim. Vide E-mail 13 February, 2017 op no.2 advised the complainant to deposit a deductible amount of Rs.3360/- towards his claim, the complainant deposited this amount and the same was acknowledged by op no.2 vide E-mail dated 13 February, 2017. The complainant has further averred that he was advised to deposit Rs. 13440/- to account no.102205000980 in ICICI Bank which the complainant deposited the same day under protest. The complainant has further submitted that neither the mobile in question nor any other information has been received by the complainant after that and hence has to file the complaint.
8. On the other hand, learned counsel for opposite party no.1 has strongly contended that complaint is false and frivolous and the complainant has not come to the Forum with clean hands. The op no.1 has further denied about any advice or recommendation for insurance of mobile set from op no.2. It has been averred that alleged insurance policy was purchased by the complainant on his own and op no.1 has no knowledge about the same. It has been averred that op no.1 is only authorized dealer of op no.3 and the only function of the op no.1 is to sell products manufactured by op no.3. The op no.1 has furnished affidavit Ex.RW1/A of Naveen Kumar, Proprietor, Garg Mobiles and Gift Gallery, Railway Bazaar, Mandi Kalawali District Sirsa and prayed for dismissal of the complaint of the complainant with cost.
9. The op no.2 had not filed any written statement and failed to appear before the forum inspite of notice published in Bombay Times, The Times of India and preferred to be proceeded against exparte.
10. The op no.3 has appeared in the forum and placed written statement on record. It has been contested on various grounds including territorial jurisdiction, misjoinder of parties etc. It has been averred in para no.10 of written statement that the complainant approached the service centre of the answering op no.3 on 23.9.2016 vide complaint no.4222108016 and reported some problem in his unit. The engineers of the answering op thoroughly checked the unit and front of the unit got replaced as per warranty policy and the unit is working in completely O.K. condition. After that the complainant never approached the answering op and directly filed the present complaint. It has been further averred that the mobile of the complainant was damaged due to mis-handling on the part of the complainant and it is the insurance company who insured the unit of the complainant and hence the op no.3 cannot be held responsible for any act done by the third party. To prove their plea op no.3 had submitted affidavit Ex. R1 of Anindya Bose Deputy General Manager, acknowledgement of service request Ex.R2, copy of warranty card Ex.R3. Thus op no.3 has prayed for dismissal of the complaint with heavy cost in the interest of justice. However, the complainant has given up the op no.3 during the pendency of the case.
11. The perusal of the record reveals that complainant in order to prove his case has furnished his affidavit Ex. PW1/A in which he reiterated the same facts as in the complaint and it is an undisputed fact that there is no dispute between the parties about the sale and purchase of one mobile set by the complainant from Garg Mobiles and Gift Gallery vide invoice no.2292 for the sum of Rs.56000/- and op no.3 is manufacturer of the mobile. As per the statement of the complainant, he got his mobile set insured from op no.2 i.e. appsdaily.in. The complainant has not submitted copy of any insurance policy on the record by which the terms and conditions of the policy may be looked into. The complainant has affirmed that a message of insurance was received by him about the insurance cover at the time of purchase of insurance policy but the copy of the said message has also not been submitted on the file by the complainant. However, the op no.2 has admitted the claim of complainant vide Ex.P3 and allotted claim intimation no.ADN-C-130117-197851826. And exchange of mails between the complainant and op no.2 reveals that there remains no doubt about the insurance cover made available to the complainant by op no.2. The complainant has successfully proved about the depositing of Rs.3360/- by him with op no.2 towards the claim as an deductible amount. Further the complainant has proved on record that an amount of Rs.13440/- was deposited by him with ICICI Bank account no.102205000980 in the account of apps daily solution Pvt. Ltd. on 23.2.2017 as per the direction of the op no.2. A perusal of Ex.P10 reveals that op no.2 has assured that the complainant will receive his handset at his home address within 7-8 working days from the date of the payment i.e. 23.2.2017. A perusal of Ex.P11 reveals that an amount of Rs.13440/- was sent by the complainant to apps daily solution Pvt. Ltd. through NEFT on 23.2.2017 to the debit of his saving account no. 914010000488320 maintained with Axis Bank. Further, the record placed on the file reveals that the handset has not yet been received by the complainant from the op no.2 and the same still lies with them and the complainant is suffering for no fault of him. The evidence given and averments made by complainant against op no.2 is unrebutted and unchallenged. Hence the op no.2 is liable for deficiency in service and losses suffered by the complainant. It is the legal obligation of the seller to provide after sale service to its customers and support and assist with the genuine claims of the customers. Hence, in our considered opinion, op no.1 is liable to support and assist the complainant in having his complaint redressed from op no.2.
12. In view of the above, we allow the present complaint and direct the opposite party no.1 M/s Garg Mobile & Gift Gallery to assist and support its customer, Bharat Bhushan, the complainant, in redressing his grievance by taking up the matter within a period of 10 days from the receipt of copy of this award with M/s Apps Daily Solution Pvt. Ltd. till logical end. The complainant is directed to send a copy of this award to op no.1&2 through any legal mode including E-mail. The op no.1 is directed to take up the matter with op no.2 for redressal of his grievance The op no.2 Apps Daily Solution Pvt. Ltd. is directed to set right the mobile set in question defect free even by replacement of any parts without any cost to the complainant/supply a new mobile set of same make and model within a period of 30 days from the receipt of copy of this award, failing which the complainant will be entitled to receive Rs.56000/- i.e. the cost of mobile from op no.2 alongwith 5% rate of interest w.e.f 27.7.2017 till actual payment. The op no.2 is further directed to pay a sum of Rs.4000/- to the complainant as composite compensation and litigation expenses within a period of one month from the date of receipt of copy of this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:13.3.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
