ORDER

(S.S. Panesar, President)

                   The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’)

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against Goyal Telecom,  Madhe Road, Nihal Singh Wala (Moga) through Prop. and Smart App Shield, 894, St. No.7, Krishna Nagar, Khanna-141 401 (Punjab) (herein-after referred to as ‘opposite parties’) directing them to replace the damaged mobile hand set with new mobile hand along with Rs.20,000/- being compensation on account of mental tension.

2.                Brief facts of the complaint are that the complainant purchased mobile hand set HTC 816G Blue, IMEI 355702063098000 vide bill No.26 dated 04.11.2014 for Rs.18,000/- from opposite party No.1, of which opposite party No.1 gave warranty of one year and also issued one insurance certificate in respect of the said mobile hand set duly insured with The New India Insurance Company by opposite party no.2. The mobile hand set was insured against theft and damage etc. The complainant further alleged that during warranty period, his mobile hand set got completely damaged and he requested opposite party No.2 on 17.11.2014 to replace his mobile hand set with new mobile hand. In response opposite party No.1 received damaged mobile hand set from the complainant  and sent complaint No.46 dated 17.11.2014 to opposite party No.2. Opposite party No.1 also assured to hand over the new mobile hand set to the complainant within 29 days. It is further alleged that opposite party No.2 directed the complainant to deposit Rs.2550/- in account No.00041131003515 lying with Oriental Bank of Commerce and the complainant deposited the said amount on 30.12.2014 but opposite parties failed to hand over the new mobile hand set to the complainant and

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lingered on the matter on one or the other pretext. Due to the deficiency in service and negligent act of the opposite parties, the complainant is suffering from mental and physical harassment and economic loss.  Hence the present complaint.

3.                Upon notice, both the opposite parties appeared. Opposite party No.1 filed written reply admitting that the mobile hand set model HTC 816G for an amount of Rs.18,000/- was sold by opposite party No.1 in favour of the complainant vide bill No.26. It is further stated that the mobile hand set in dispute was insured by opposite party No.2 on payment of premium to the tune of Rs.1200/- for a period of one year. It is further stated that the retailer has no responsibility for payment of insured sum, rather it is the Smart App Shield insurer which is responsible for the claim. It is further stated that the claim filed by Lakhvir Singh, complainant was forwarded by opposite party No.1 to opposite party No.2 and Lakhvir Singh has also deposited Rs.2550/- in Oriental Bank of Commerce in account No. 00041131003515 dated 30.12.2014 in favour of opposite party No.2. Opposite party No.2 promised to issue new mobile hand set within a period of one month, but, however, opposite party No.2 has failed to issue new mobile hand set in favour of the complainant for the last 4 months. It is stated that opposite party No.2 may be directed to issue a new mobile hand set of the same quality in favour of the complainant.

4.                Opposite party No.2 did not opt to file any written reply, rather on 16.06.2015 none put in appearance on behalf of opposite party

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No.2 and opposite party No.2 was accordingly proceeded against ex-parte. Even opposite party No.1 also suffered ex-parte on account of its wilful absence on 08.06.2015.

5.                In ex-parte evidence, the complainant Lakhvir Singh appeared in witness box as his own witness as CW-1 and filed his duly sworn affidavit Ex. C-1 reiterating the facts stated in the complaint. The complainant  produced on record photostat copy of bill/cash memo dated 04.11.2014 Ex. C-2, documents regarding insurance Ex. C-3 and Ex. C-4 and bank receipt regarding deposit of Rs.2550/- dated 30.12.2014 Ex. C-5 and closed his ex-parte evidence.

6.                We have heard the complainant in person and have carefully gone through evidence on record.

7.                It is proved on record that the complainant Lakhvir Singh purchased mobile hand set HTC 816G Blue, IMEI 355702063098000 vide bill No.26 dated 04.11.2014 for an amount of Rs.18,000/-. Photocopy of the bill is Ex. C-2 on record. The mobile hand set in dispute was insured through opposite party No.2. copy of the relevant insurance documents account for Ex. C-3 and Ex. C-4. Perusal of Ex. C-3 shows that the insurance coverage was valid for one year in case of theft, breakage and water damage. It is the case of the complainant that the insured mobile hand set got damaged within warranty period and the complainant approached opposite party No.2 for replacement of the mobile hand set in dispute on 17.11.2014 and the complaint No.46 dated 17.11.2014 was sent

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to opposite party No.2. Opposite party No.1 promised to issue new mobile hand set of the same quality to the complainant within a period of 29 days of filing the complaint. Thereafter, the complainant also deposited Rs.2550/- as per directions of opposite party No.2 vide bank receipt, copy whereof is Ex. C5 on record. The evidence produced on record has gone unrebutted on record. Both the opposite parties have wilfully neglected to appear and contest the instant complaint and thereby impliedly admitted the case of the complainant.  Since the hand set in dispute got damaged within warranty period, therefore, opposite party No.1 being distributor and opposite party No.2 being insurer are under legal obligation to replace the mobile hand set in dispute to the complainant without charging any further amount from the complainant. Consequently, the instant complaint succeeds and an exparte order directing opposite parties to issue new mobile hand set of the same quality and make in favour of the complainant without charging any further amount from him within period of one month of the receipt of the copy of detailed order. Both the parties are individually and jointly liable to comply with the order. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.