DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 154 of 2.9.2020

                                      Decided on: 2.4.2024

Manisha Aggarwal, aged 30 years daughter of Sh.Narinder Kumar, Permanent resident of B-1/525, Kundan Puri, Bindraban Road, Civil Lines, Ludhiana, presently working in Rajindra Hospital, Patiala as General Surgeon and residing in new PG Girls Hostel, Govt. Medical College, Patiala.

                                                                   …………...Complainant

                                      Versus

1. Kiran Mobile Care, B-545, Upstairs, Jaipur Diamonds, College Road, Near Fountain Chowk, Ludhiana-141001 through its Managing Director/Chairman/Authorized Representative.

2. Samsung India Electronics Pvt. Ltd., 20^th to 24^th floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF PH-V, Gurgaon, Haryana-122202 through its Managing Director/Chairman/Authorized Representative.

3. Ingram Micro India Pvt. Ltd.,G-9,Block B-1, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044 through its Managing Director/Chairman/Authorized Representative.

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Ms.Gagandeep Gosal, President

                                      Sh.G.S.Nagi, Member   

ARGUED BY     

                              None for the complainant.

                             OP No.1 ex-parte.

                             Sh.J.S.Sandhu, counsel for OP No.2.

                             Sh.A.S.Sandhu, counsel for OP No.3.                                    

 ORDER

                                      G.S.NAGI, MEMBER

1. The instant complaint is filed by Manisha Aggarwal (hereinafter referred to as the complainant) against Kiran Mobile Care and others (hereinafter referred to as the OP/s) under the Consumer Protection Act (for short the Act).
2. It is averred in the complaint that the complainant purchased a Samsung S8 phone model No.SM-G950FZRDINS, IMEI No.358057083101616 on 1.8.2018 for a consideration of Rs.37,791/-from official website of Samsung. The phone of the complainant was also insured with Ingram Micro/HDFC Ergo under the scheme.
3. That the said device suffered damage after falling on 9.7.2019. As the device was under insurance cover, complainant after taking a nod from the insurance company went to the authorized service centre of Samsung India Electronics Pvt. Ltd. i.e. Kiran Mobile Care on 11.7.2019 to get the repair estimate which the complainant forwarded to the Insurance company.
4. That complainant gave her phone for repair to OP No.1 on 18.7.2019 after permission from insurance company and picked it back on 19.7.2019 and paying Rs.13549/-. Before picking up the device, complainant discussed about battery issue in the phone with OP No.1 who agreed to change the battery. That complainant brought back her phone for back up of her data and again took the phone to OP No.1 on 20.7.2019 for battery change which took about two hours. Complainant asked for a proof of battery change, she was told that everything would be uploaded online. Thereafter complainant noticed speaker and mike problem in her phone after battery change which was earlier not present. The office of OP No.1 having been closed by then and the next day being Sunday, complainant took her phone to OP No.1 on 22.7.2019 but the problem was not solved. Then complainant raised the issue with Samsung India via telephone as well as in written but of no avail.
5. That complainant received an email from the insurance company that the repair invoice provided by the complainant (given to her by OP No.1) is not reflecting in Samsung GSPN Portal and no records are available in Samsung service portal. That complainant immediately approached OP No.1 and raised her concern who asked the complainant to share the details via whatsapp which complainant did but refused to get her phone to their service centre she being suspicious of their activities from starting. That service centre i.e. OP No.1 did not pay any heed to the query of the insurance company despite the complainant raised her issue time and again to the customer service centre of Samsung. That on 3.8.2019, complainant received message on her phone from Samsung that she was checked in service centre despite the fact that she did not visit any service centre on that date. That on 3.8.2019 she received a call from OP No.1 that her uploaded bill was ready and she can pick the same. Complainant told them to deliver the same at her permanent residence. That the complainant did not receive the bill till morning of 5.8.2019.That complainant received a bill in the evening of 5.8.2019 which was without an invoice number and date, wrong address and phone number of the complainant and a different bill amount from original invoice. Complainant raised the issue with customer service of Samsung. That a third invoice was shared with her by OP No.1 late at night on 5.8.2019.
6. That complainant filed a complaint with National Consumer Forum, online through their app via grievance Number1504519 on 8.8.2019.That complainant got in touch with Samsung via all forms i.e. e-mails, telephone and messages. She also contacted with multiple executives during the course in numerable times but her problem was not solved. That complainant received an e-mail from insurance company that her claim has been rejected and ultimately left with no alternative complainant approached this Commission after being faced lot of harassment and mental agony with the prayer to accept the complaint by giving direction to the OPs to give a new Samsung phone equivalent to her existing device S8; to pay an amount of Rs.13459/- plus Rs.1,00,000/- as compensation on account of mental agony and harassment caused to her by the OPs.
7. Notice of the complaint was duly issued to the OPs. OP No.1 failed to appear and was accordingly proceeded against ex-parte. OPs No.2&3 appeared through their counsels and filed the written reply having contested the complaint.
8. In the written statement filed by OP No.2 preliminary objections have been raised that the present complaint is bad for mis-joinder of parties. It is averred that the handset in question has been submitted with service centre i.e. OP No.1 only on 18.7.2019 in a physically damaged condition. The complainant approved the estimate of repair and accordingly the handset was repaired on chargeable basis. OP No.1 after repairing the handset delivered back the handset to complainant alongwith original bill of repair charges. Thereafter complainant never visited OP No.1 for any kind of repair. It is alleged that OP as its policy matter does not share directly or indirectly any access to 3^rd party regarding its customer’s data base. No 3^rd party i.e. insurance company can access the said GSPN portal of the OP. That the allegations of the complainant that her claim has been rejected by OP No.3 as the repair invoice issued by OP No.1 is not found in Samsung GSPN system is not tenable qua OP. The insurance company should have verified the repair invoice from the concerned service centre and if the concerned service has denied the said repair bill only then OP can be held liable. That in the present case no where it is stated that OP No.1 has refused to verify the repair bill to OP No.3.Rather OP No.3 never approached OP No.1 for verification of the same. That if the claim has been rejected by OP No.3 then liability if any is of OP No.3.It is further averred that there is breach of warranty terms and conditions as the handset has been physically damaged as admitted by the complainant. That no cause of action has arisen to the complainant to file the present complaint against the OP. That complainant has sought replacement of mobile or refund of price, which is not permissible under the law and also under the terms of warranty. That replacement or refund is only permissible where defect developed during the period warranty is of such a nature that it cannot be cured or repaired. For any defect developed after the lapse of warranty or defect due to physical damage, water/liquid logging the OP is not responsible for the same. That in the present case the insurance claim with regard to the physical damaged handset has been rejected by OP No.3 for which OP has no concern or connection. That the present complaint is gross misuse of process of law. There is no deficiency of service on the part of OP.
9. On merits, OPs denied all the averments and has prayed for dismissal of the complaint.
10. In the written statement filed by OP No.3, it also raised preliminary objections that the Hon’ble Forum  has got no jurisdiction to entertain and try the present complaint as the mobile in question was purchased from Ludhiana; that complaint of the complainant is not maintainable as the complainant has not made the insurance company as a party to the complaint; that there is no deficiency on the part of OP and the complaint is liable to be dismissed against the OP.
11. It is alleged that when the claim documents were received to the OP, the same were forwarded to the insurance company as OP No.3 is merely a co-coordinator between the insured and the insurance company. That thereafter as per the procedure insurance company scrutinized the documents alongwith the e-mails sent to OP No.3 by the complainant and it was found that the bill dated 19.7.2019 submitted by the complainant against the repair of the mobile was not genuine. That complainant has misrepresented the facts and used forged repair invoice, which was sent to OP No.3 and ultimately on this reason the OP No.3 declined the claim of the complainant on 16.8.2019. That the complaint has been filed with malafide intention; that the complainant has not come to this Hon’ble Forum with clean hands and has suppressed the material facts.
12. On merits, it is alleged that the delivery address is in the name of Tarun Kansal  but the complaint was filed by Manisha Aggarwal. There is no relationship between Tarun Kansal and the complainant nor it has been mentioned in the complaint. It is denied that any written permission was given to the complainant by OP No.3 to get the phone checked to a specific service station of Samsung. It is admitted that complainant received an email from the insurance company that the repair invoice provided by the complainant (given to her by Kiran Mobile) is not reflecting in Samsung Serving GSPN Portal  and no records and available in Samsung Service Portal. It is also admitted that complainant has received an e-mail from insurance company that her claim has been rejected. After denying all other averments of the complainant, OP has prayed for dismissal of complaint.
13. In support of her complaint, complainant has tendered in evidence, Ex.CA her own affidavit alongwith documents, Ex.C1 copy of purchased bill of device, Ex.C2 copy of acknowledgment email by Ingram Micro, Ex.C3 copy of acknowledgment e-mail by insurance company to get repair estimate,Ex.C4 repair estimate by Kiran Mobile Care, Ex.C5 copy of permission e-mail by insurance company, Ex.C6 copy of bill given by Kiran Mobile Care, Ex.C7 to Ex.C9 copies of e-mails interaction with Samsung, Ex.C10 copy of e-mail received from insurance company, Ex.C11 screen shot of whatsapp interaction with Kiran Mobile care, Ex.C12 and Ex.C13 copies of calls to Samsung Service Centre, Ex.C14 screen shot message received from Samsung, Ex.C15 copy of screenshot of whatsapp interaction with Kiran Mobile care employee, Ex.C16 copy of second invoice, Ex.C17 copy of call to Samsung service centre, Ex.C18 copy of 3rd invoice received from service centre employee, Ex.C19 and Ex.C20 copies of complaint to National Consumer Forum through online, Ex.C21 to Ex.C26 copies of calls to Samsung employees, screen shots of whatsapp conversation, complaint to CEO, email conversation with the employees, Ex.C27 copy of email received from insurance company, Ex.C28 and Ex.C29 copies of emails interaction with Samsung employee Kirti, Ex.C30 copy of calls made to insurance company and closed evidence.
14. Ld. counsel for OP No.2 has tendered in evidence Ex.OPA affidavit of Rajeev Gupta, Director alongwith documents, Ex.R4 copy of bill,Ex.R5 copy of e-mail and closed evidence.
15. Ld.counsel for OP No.3 has tendered in evidence affidavit, Ex.OPB of Manohar Sundaram Sr.Executive Legal alongwith documents, Ex.R1 forged invoice dated 19.7.2019, Ex.R2 email dated 30.7.2019, Ex.R3 master policy document and closed the evidence.
16. Written arguments by OPs No.2&3 have been filed. We have gone through the same, heard the ld. counsel for the OPs and have also gone through the record of the case, carefully with the able assistance of the ld. counsels.
17. The complainant has purchased a mobile phone make Samsung vide invoice No.CHNRI1819131773 dated 1.8.2018 for a consideration of Rs.37,791/-, copy of which is Ex.C1. The IMEI / Serial number of the handset as per the said invoice was 358057083101616. The billing address as per the said invoice was that of the complainant i.e. Manisha Aggarwal B-1/525, Kundan Puri Bindraban Road, Civil Lines Ludhiana. The set was delivered through Savex Technologies Pvt. Ltd.The said mobile phone was insured vide certificate of insurance,Ex.C2, issued by OP No.3, as per which the said mobile phone was covered under ADLD policy of the OPs for one year from the date of purchase upto 31.7.2019. The said insurance policy clearly bears the name of the complainant as the customer alongwith IMEI number of the handset as was reflected in the sale invoice,Ex.C1.
18. As per the complainant the handset got damaged on 9.7.2019 as the said set fell accidently. The matter was taken up with OP No.3 i.e. the insurer for the repair of the said hand set as per e-mail dated 10.7.2019,Ex.C3. OP No.3 then asked the complainant to prepare a repair estimate for the same from the authorized service centre of OP No.2. The repair estimate amounting to Rs.14161/- was taken from OP No.1 being the authorized service centre of OP No.2 which is Ex.C4 for an estimated amount of Rs.14161/- and was submitted to OP No.3 for further consideration. OP No.3 vide its e-mail dated 16.7.2019 advised the complainant to go head and get the device repaired from brand authorized service centre of OP No.2. The complainant was also asked to submit a copy of the repair invoice alongwith bank details for settling her claim. The mobile phone was then handed over to OP No.1 i.e. authorized service centre of OP No.2 for repair on 18.7.2019 and the set was received back on 19.7.2019 against repair invoice No.3474199200301 dated 19.7.2019 for a consideration of Rs.13549/-, which is Ex.C6. The invoice clearly mentions the name of the complainant i.e. Manisha Aggarwal alongwith her address i.e. B-1/525, Bindraban Road, Ludhiana with IMEI number of the hand set i.e. 358057831016116. The complainant then found an issue with the battery of the phone and brought the phone to OP No.1 the service centre of OP No.2 on 20.7.2019 where the battery of the phone in question was replaced. The complainant also observed a problem with the speaker and mike of the phone after the replacement of the battery. However, OP No.1 failed to address the issue raised by the complainant and matter was taken up by the complainant with OP No.2 through e-mails,Exs.C7 to C9. The complainant with reference to her claim for repairs then received an email Ex.C10 from OP No.2 stating therein that the insurance company has reviewed the final documents and enclosed repair invoice is not reflecting in Samsung GSPN portal and even no records are available in the Samsung Service Portal. Please checkup with the Samsung service centre and share the GSPN generated invoice. Accordingly insurance company will review this claim. The complainant then approached OP No.1 to resolve the issue and shared the mail of OP No.3 with OP No.1 through whatsapp copy of which is Ex.C11. However, no response was received from OP No.1. A message was then received by the complainant on 3.8.2019 that the complainant had checked in the service centre of the OPs as per Ex.C14 which was flatly refuted by the complainant as per the call record details which are Exs.C12 and C13. OP No.1 then called the complainant and stated that the up dated bill for repairs was ready and she could collect the same from the office of OP No.1. However, a request was then made to OP No.1 to deliver the said bill at her residence as per whatsapp message which is Ex.C15.The repair bill was delivered to the complainant on 5.8.2019. However, the said bill was not bearing any invoice number and date. The bill Rs.13486/-is Ex.C16 of. The matter was taken up with OP No.2 as per call record,Ex.C17 and finally a new invoice bearing invoice No.508198757 dated 5.8.2019 for an amount of Rs.13486/- was delivered to the complainant as per Ex.C18.The complainant took up the matter with OP No.2 repeatedly through telephonic calls, whatsapp chat, complaints to CEO of OP No.2 and response of OP No.1 was escalated through e-mails as per Ex.C21 to Ex.C26. However, no fruitful purpose was served. Finally the claim of the complainant was rejected by OP No.3 as per the rejection mail,Ex.C27 with the remarks that  based on the review of order final claim documents by insurance company they have declined your claim with the below comments:

“We have received a repair invoice No.3474199200301 dated 31.7.2019. During internal check we found that the said insurance device was not repaired as per Samsung Records and forged invoice has been given by the claimant to process the claim”

The matter was finally taken up with OP No.2 as per emails Ex.C28 to C30 but without any results. The matter was also escalated to the National Consumer Forum through their Grievance app bearing No.1504519 dated 8.8.2019 and the complainant was then advised to file her claim in a Consumer Forum. The mails are Ex.C19 and C20.Finally the claim was lodged by the complainant with this Commission with the prayer to settle her claim for Rs.13459/-alongwith compensation of Rs.one lac on account of mental agony and harassment.

19. OP No.2 in its written statement has submitted that the hand set was submitted for repairs with the authorized service centre of OP No.2 i.e. OP No.1 on 18.7.2019 in a physically damaged condition. The estimate for repair of the handset was approved by the complainant and hand set was repaired on chargeable basis .The hand set was delivered to the complainant on 19.7.2019 after repairs alongwith original bill of the repair charges. They have further submitted that the allegations of the complainant that her claim has been rejected by OP No.3 on the grounds that the repair invoice issued by OP No.1 is not found in Samsung GSPN system is not tenable due to the fact that OP No.2 does not share directly or indirectly any access to 3^rd party regarding its customer data base as a policy matter. No 3^rd party i.e. even the insurance company can access the said GSPN portal of the answering OP. The OP No.2 has further argued that there was no manufacturing defect in the hand set and the hand set was  physically damaged and there is a breach of the terms and conditions of the warranty as the hand set was repaired on chargeable basis. The OP No.2 has no role whatsoever in the rejection of the claim by OP No.3 and has prayed for dismissal of the complaint against OP No.2.
20. OP No.3 in its written statement has taken the preliminary objections that this Commission has no jurisdiction to try the present complaint as the mobile in question was purchased from Ludhiana. OP No.3 has further taken the objection that the complaint against OP No.3 is not maintainable as the insurance company has not been made a party to the complaint. OP No.3 has further pleaded that it is merely a co-coordinator between the insured and the insurance company and no claim lies against OP No.3 as the claim has to be settled by the insurance company.
21. OP No.3 in the affidavit of Manohar Sundaram, Senior Executive Legal, Ex.OPB have argued that there is no deficiency on the part of OP No.3 as the claim documents received by OP No.3 were duly forwarded to the insurance company for settlement of the claim which was finally rejected by the insurance company on the ground that the bill of repairs dated 19.7.2019 submitted by the complainant was not genuine. The following reply was submitted by the insurance company vide its e-mail dated 30.7.2019 :

“Insurance company has reviewed the final documents and enclosed repair invoice is not reflecting in Samsung GSPN portal and even no records are available in Samsung service portal.

Please check with the Samsung Service Centre and share the GSPN Generated Invoice, accordingly insurance company will review this claim further”.

22. OPs have further submitted that after the receipt of the above said e-mail another bill dated 5.8.2019 for the repair of the same mobile was again submitted by the complainant. However, the insurance company finally declined the claim of the complainant on 16.8.2019 vide e-mail,Ex.OP3 on the grounds that the repair invoice submitted by the complainant was a forged one, which reads as under:

“This is in reference to the captioned claim, where we have received a repair invoice dated 31-July-2019 with invoice No.3474199200301.During internal check, we found that the said insured device was not repaired as per Samsung records and forged invoice had been given by the claimant to process this claim”.

23. The OPs then relied upon the clause 15 under Section (2) of the Master Policy which states that:

“15. The cover shall be voidable in the event of misrepresentations, mis-description or non-discloser of any material particular”.

24. The OP No.3 has argued that the complaint has been filed with malafide intention and forged invoice was submitted by the complainant for insurance claim and as such the claim was rightly rejected.
25. We have considered the rival submissions of the parties.
26. There is no dispute that the mobile phone bearing IMEI No.358057083101616 was purchased by the complainant vide invoice dated 1.8.2018 where the billing address is that of the complainant, as per Ex.C1. The said mobile having IMEI number as above was insured by OP No.3 against certificate of insurance issued in the name of the complainant on 25.9.2018 and which was valid for a period of one year having same IMEI number, which is Ex.C2.
27. From the above documents, it is clear that the phone in question was purchased by the complainant as the billing address as discussed above belongs to the complainant and the insurance policy has also been issued in the name of the complainant.As such the argument of the OPs that the complainant is not a consumer of the OPs is not tenable and complainant is a consumer as per the definition of “Consumer” under Section 7 of Consumer Protection Act,2019.
28. OP has further taken the objection that this Forum (Now Commission) has no jurisdiction to try the said complaint as the mobile was billed and repaired at Ludhiana. However, as per Section 34(2)(d) of the Act, this Commission has got the jurisdiction to try the said complaint as the complainant personally works at Patiala and falls under the jurisdiction of this Commission as the complainant is employed as a doctor with Govt. Rajindra Hospital,Patiala and resides at New PG Girls Hostel at Patiala.
29. It is a fact that the phone of the complainant got damaged and was taken for repairs to OP No.1 being the authorized service centre of OP No.2. An estimate amounting to Rs.14161/-,Ex.C14 was then prepared by OP No.1 for repair of the handset which was duly forwarded to OP No.2 for consideration. OP No.3 in its e-mail then advised the complainant to go head with the repair of the device from the brand authorized service centre and also asked the complainant to reply back on the e-mail giving details of the repair invoice and bank account for the settlement of the claim. The said e-mail is Ex.C5. The mobile phone was handed over for repairs to OP No.1 on 18.7.2019 and was received back after repairs on 19.7.2019 alongwith repair invoice No.474199200301 dated 19.7.2019 which is Ex.C6 for consideration of Rs.13549/-.These facts have been agreed to by OP No.2 in para 2 of affidavit of Sh.Rajiv Gupta, Director CS.OP No.2 has agreed that mobile was handed over for repairs on 18.7.2019 in a damaged condition and delivered after repairs which were carried out on chargeable basis on 19.7.2019 alongwith original bill of repair charges.The said repair invoice was then submitted by the complainant with OP No.3 for the settlement of the claim. However, OP No.3 vide its e-mail dated 30.7.2019 stated that the insurance company has reviewed the final documents and the enclosed repair invoice is not reflecting in the Samsung GSPN portal and even no records are available in the Samsung Service Portal. Please check with the Samsung Service Centre and share GSPN generated invoice. Accordingly insurance company will review this claim further.
30. We are of the opinion that the insurance company had no business in raising this issue with the complainant as the GSPN of OP No.2 is not accessible to the complainant and it was not the duty of the complainant to upload the said invoice at the GSPN portal of OP No.2. Moreover, OP No.2 in its written statement and sworn affidavit of Rajeev Gupta has further submitted that “it is pertinent to mention that the OP as a policy matter does not share directly or indirectly any access to 3^rd party regarding its customer data base. No 3^rd party i.e. even the insurance company can access the said GSPN portal of the answering OP. As such as per OP No.2 the said GSPN portal was neither accessible to the complainant nor to OP No.3 and the first rejection made by OP No.3 on the ground that the invoice is not visible on the GSPN portal is fully unjustified and OP No.3 has travelled beyond its jurisdiction in rejecting the claim. The matter regarding the up loading of the invoice, if at all it was required , should  have been taken up by OP no.3 with either by OP No.1 or OP No.2 and complainant is in no way responsible for the same.
31. However, after the rejection of the said claim by OP No.3 the complainant was left with no other option but to request OP No.1 to issue a invoice and upload the same at GSPN portal of OP No.2.OP No.1 then instead of uploading the invoice at No.474199200301 dated 19.7.2019 for consideration of Rs.13549/- at the portal then issued invoice No.508198757 dated 5.8.2019 for an amount of Rs.13486/- Ex.C18 which was again not uploading on the portal. This invoice dated 5.8.2019 was then sent to OP No.3 for settlement of the claim. However, OP No.3 vide its e-mail dated 16.8.2019, Ex.C27 rejected the claim of the complainant with the remarks that “this is in reference to the captioned claim where we have received a repair invoice dated 31.7.2019 with invoice No.3474199200301 during the internal check. We found that the said insured device was not repaired as per Samsung record and forged invoice had been given by the claimant to process this claim”.
32. A perusal of both invoices dated 19.7.2019 and 5.8.2019 reveal that the items that were replaced in the hand set of the complainant bear the same nomenclature and same bar code and other technical data. A perusal of the invoice further indicates that these part numbers, their codes, HSN codes and all the details contained in the invoices cannot be generated by any individual and we have no doubt regarding the authenticity of these invoices having been issued by OP No.1.
33. In view of the discussions above, we are of the opinion that claim of the complainant has been rejected on frivolous grounds. The OP No.3 has acted with malafide intention and have leveled baseless allegation on the complainant. The complaint is accordingly partly allowed. All the OPs i.e. OPs No.1to3 jointly & severally are directed to settle the claim of the complainant for a consideration of Rs.13549/- as per the invoice dated 19.7.2019 submitted by the complainant alongwith interest @7% per annum from the date of payment i.e.19.7.2019 till realization within 30 days from the date of receipt of certified copy of this order failing which OPs shall pay interest on the said amount @9% per annum as ordered above. The OPs are further directed to pay Rs.10,000/- as compensation for causing mental agony and harassment to the complainant within the prescribed period.
34. The instant complaint could not be disposed of within stipulated period for want of Quorum from long time.
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                                              G.S.Nagi                       Gagandeep Gosal

                                              Member                          President