Complainant Rahul Mahajan through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the complaint may kindly be allowed and the opposite parties may be directed to pay the claim of damaged mobile handset as per Syska Gadget Secure Policy purchased by him or replace mobile handset with new one. Complainant has further prayed that opposite parties may also be burdened with costs of Rs.10,000/- on account of mental, monetary and physical harassment suffered by him from the hands of opposite parties along with Rs.5,000/- as litigation expenses.
2. The case of the complainant in brief is that he had purchased a new mobile handset mark ‘Samsung Galaxy 7-S Edge’ on 18.01.2016 amounting to Rs.56,900/- from opposite party No.2 by paying full and final payment in cash vide Retail Invoice No.2185. It was pleaded that after the purchase of said mobile complainant purchased one Insurance Policy ‘Syska Gadet Secure’ from opposite party no.2 for Rs.2399/- on 02.02.2016 for the protection of mobile in question and as per the policy which was issued by opposite parties No.1 & 2, opposite parties covered the following risk of the said mobile handset under this policy i.e. Comprehensive Gadget Cover, Physical/Fluid Damage, Fire and allied perils, virus protection and theft protection. It was further pleaded that on 07.09.2016 when complainant was coming to shop all of sudden one two wheeler collided with complainant due to which his mobile fell on the road and after that in the water and was damaged and had became out of order. It was also pleaded that complaint was lodged by the complainant telephonically with opposite party No.1 at their Consumer Care number and his complaint was registered but till today nothing had been done on the part of opposite party No.1. Complainant even visited the office of Samsung Care Centre Gurdaspur who told the complainant that his mobile is fully damaged and cannot be repaired. It was next pleaded that complainant was running pillar to post to get the claim of the mobile handset under the Syska Gadget Secure Policy and made many telephonic calls at their customer care number but his request was not accepted by the opposite parties till today. A legal notice dated 08.11.2016 was also served by the complainant upon the opposite parties but no reply has been sent despite the service and opposite parties had also failed to pay the claim of the mobile under above said policy and due this illegal act of the opposite parties complainant had suffered physical as well as mental harassment and as such there was deficiency in service on the part of the opposite parties, hence this complaint.
3. Notice of the complaint was served upon the opposite parties. Opposite party No.2 has appeared through their counsel and filed the written reply by taking the preliminary objections that complaint is not maintainable against the opposite parties. The present complaint is bad for mis joinder of parties. It was stated that opposite party No.2 had unnecessarily being impleaded as party in this case as complainant never approached them with any problem of his mobile handset. It was further stated that the claim of the complainant if any regarding his mobile handset the same was to be paid by opposite party No.1 i.e. Insurance Company and opposite party No.2 has no role in passing or rejection of the claim as no cause of action had ever accrued to the complainant against the answering opposite party to file the present complaint and as such present complaint on merits dismissal qua answering opposite party being bad for mis joinder of party. On merits, it was denied that mobile of the complainant was insured within 48 hours after its purchase. As per the complainant he purchased the mobile on 18.01.2016 and insured the same on 02.02.2016 i.e. after a gap of 15 days due to which answering opposite party denied regarding insurance of any Insurance Policy to the complainant and the officials of the opposite party No.1 were liable for any claim in case of any defect in the mobile. All other averments made in the complaint have been denied and lastly prayed for dismissal of the complaint.
4. Opposite party No.1 did not appear and was proceeded against exparte vide order dated 23.2.2017.
5. Counsel for the complainant had tendered into evidence affidavit of complainant Ex.CW-1/A along with documents Ex.C1 to Ex.C-7 and closed the evidence on behalf of complainant.
6. Counsel for the opposite party No.2 had tendered into evidence affidavit of Sh.Prithi Pal Singh Gosal Prop. Ex.OP-2/1 and closed the evidence on behalf of opposite party no.2.
7. We have intently perused all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants and find that the present dispute/complaint has arisen as a result of the defective functioning caused by external damage caused to the expensively fragile but comprehensively insured Samsung Make Galaxy 7-S Edge Mobile Handset as was duly purchased (Ex.C5 for Rs.56,900/- on 18.01.2016) from the OP2 Vendor along with the OP1 make Syska Gadget Secure Package (Ex.C4 for Rs.2399/- on 02.02.2016) comprising of Ex.C6 Blanket Insurance Cover to the Device against all Damage(s) vide Fire, Theft and Virus Protection etc/ E-Magazine/ Games on the Go/3000 + Movies etc; in terms (Ex.C7) of the related insurance policy. Somehow, the insured mobile device got damaged beyond repairs in an insignificantly petty road-side accident but its insurance claim for a valid replacement with a fresh piece has been alleged to be left indefinitely un-responded by the titled opposite parties and that did prompt the present complaint praying for the necessary relief by way of refund of its cost/invoice price coupled with the statutory compensation and cost of litigation etc.
8. The OP 2 vendor has straightaway denied in general his role in repairs/ replacement/ insurance of the Mobile Set(s) sold by him and has specifically denied reporting of defunct-performance by the present complainant for want of knowledge/intimation etc. Further, the other OP1 insurers have intentionally preferred to suffer the ex-parte proceedings and that gives rise to the judicial presumption that they have no defense to plead. However, the OP2 vendor in his written statement (as well as in his lone defense document affidavit Ex.OP2/1) has pleaded that the complainant had purchased the instant insurance after 15 days of the purchase of the Mobile Handset Device, in question; whereas as per the terms of the related policy the insurance need be purchased within 48 hours of the purchase of the device under its prospective insurance. However, that does not absolve the titled opposite parties of their liability to one judicious settlement of the insurance claim after having once accepted its policy premium and thereby having bound itself into the insurance contract.
9. We further find that the complainant has not produced any job card and/or any other cogent evidence of the Mobile’s dysfunction/ repairs at the OPs Service Centre and has even failed to produce the defunct mobile before us during the course of the present proceedings for a purposeful examination by the OP2 vendor. But, somehow the present complainant has proved through the deposition Ex.Cw1/A and other documents Ex.C1 to Ex.C7 comprising the Insurance Policy/ Invoice of the Mobile’s purchase etc and somewhat of his allegations of ‘damage and dysfunction’ along with others of the sold product i.e., the mobile-set, in question.
10. We finally find that the OP2 vendor vides its written reply (duly supported by his affidavit Ex.OP-2/1) has pleaded that ‘Insurance, Repairs, Replacement and Refund’ of the Samsung Make Products (sold at his shop) has been the responsibility/liability of the OP1 insurers and as such the present complaint deserves to be dismissed, at least, against him. Moreover, the present complainant did never advise/intimate him (the OP2 vendor) of the damage/ dysfunction of the insured mobile. We are not prepared to accept this arbitrary plea of the OP2 vendor and thus find/ hold him jointly, severally & coextensively responsible for an efficient and courteous after sales service etc along with the other opposite party OP2. We find that the complainant could not enjoy the full benefits of his Samsung Make expensive Mobile Set purchased from the OP2 (under insurance of the OP1) and in spite of the city-presence & city-representation of the OP1/ OP2 who of course have presently offered for refund of the insurance premium as collected from him and also a free examination of the same and a warranty-eligible free repairs etc. The learned counsel for the complainant has also produced one NCDRC judgment 2014(2) CPR 158 titled: United India Insurance Co. Ltd., vs. N M Mohammed Jakeer Hussain; to support the complaint’s merits that we however do not find relevant to the present complaint in its ratio progression.
11. In the light of all above, we are of the considered opinion that the present complaint can be best disposed of by directing the titled opposite parties to arrange for conduct of a thorough examination of the Mobile Set in question followed by its free within-warranty repairs/part-replacement etc in case that sets the mobile-set device back to its original working order otherwise to replace the same with a fresh piece of same model within 15 working days of receipt of these orders and to deliver back the same to the complainant besides to pay him Rs.3,000/- as cost and compensation. Both the titled opposite parties shall jointly and severally liable to execute compliance of the present orders within the stipulated period otherwise they shall be liable to refund the invoice price of the device alongwith cost awarded.
12. Copy of the order be communicated to the parties free of charges. File is ordered to be consigned to the record room.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
DEC.15, 2017 Member.
*MK*
