BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
SIRSA
Consumer Complaint no. 17 of 2017
Date of Institution : 24.1.2017
Date of Decision : 29.4.2019
Mohan Lal (aged about 52 years) son of Sh. Radha Krishan, Resident of H.No.228, B-Block, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
- M.D., Apps Daily Solution Pvt. Ltd., D3137 Oberoi Garden Estates, Chandivali Farm Road, Andheri(E), Mumbai 400072,
- Incharge, Apps Daily customer connect Point, CC1053-Sirsa, Shop No.67, New M.C. Market, Nr Circular Road, Sirsa(Mob.7027596216)
- M/s Shri Satyam Mobile, Sadar Bazar, Sirsa through its proprietor/partner.
- The New India Assurance Company Limited through its Branch Manager at Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…… PRESIDENT
SHRI ISSAM SINGH SAGWAL……MEMBER.
MRS. SUKHDEEP KAUR…….MEMBER.
Present: Sh. A.K. Monga, Advocate for the complainant.
Opposite parties no.1& 2 exparte.
Sh. Sanjay Sihag, Advocate for op no.3.
Sh. Kapil Sharma, Advocate for op no.4.
ORDER
In brief, the case of complainant is that, the complainant has purchased a Mobile Phone known as i-Phone 6 colour Grey (16GB) in a sum of Rs.39900/- from op No.3 vide Bill No.95173 on 24.01.2016, which was having warranty of one year. The mobile was also got insured from op no.1 Apps Daily by op no.3 after receiving premium amount i.e. Rs.3499/- vide Kit/Policy No.8905694511578 for the protection in case of physical Damage, Liquid Damage, Theft, Data loss, Viruses and all these protections to be given within 10 days from the date of complaint. The complainant has lodged a complaint to the op no.1 on 02.11.2016 regarding damage of mobile as it fell down from his pocket, due to use the break of bike, in the market, due to some unavoidable circumstances. Thereafter, the complainant deposited the mobile set with the op no.2 on 8.11.2016 and an amount of Rs.1995 has also been got deposited by the op no.2 from the complainant as service charge and after receiving the Mobile Set, op no.2 got checked the mobile set properly and carefully and thereafter, called the complainant for taking his photograph saying that earlier taken photo was not clear and thereafter, the complainant has contacted the op no.3 on 10.11.2016, who has issued a Job Sheet by the op no.2 and it has been handed over the same to the op no.2 to the complainant that the documents and phone set which has been given by the complainant has been approved. On 12.11.2016, op no.1 intimated the complainant that the mobile set is currently being repaired at our Service Centre and the same would be dispatched soon but the complainant received e-mail message on 26.11.2016 from Ops intimating that his claim is not tenable under the terms and conditions of Protection plan/scheme. Upon preliminary scrutiny of the device and it is observed that:-
Handset has been repaired or opened before submission to Apps daily
Phone parts missing or replaced.
Therefore, the claim of the complainant has been repudiated wrongly and illegally despite the fact that the mobile phone was under warranty period. The complainant has requested the ops to do the needful but initially, they avoided the matter and lastly have flatly refused to admit the claim. Hence, this complaint.
2. Opposite parties No.1&2 did not appear despite notice sent through publication and they were proceeded against exparte vide order dated 11.10.2018 whereas ops no.3 & 4 appeared and filed written statement separately. OP No.3 in the written statement has taken preliminary objections regarding complaint is not maintainable and sustainable, no cause of action, complainant is not the consumer of the ops as defined under the provisions of the Consumer Protection Act, complainant is liable to be stopped by his own act and conduct of filing the complaint, the complainant is bad for mis-joinder and non-joinder of parties. On merit, it is submitted that the reply OP is doing his business on a nominal profit, whereas the customer pre-set their mind to purchase the mobile set or any related accessory or the insurance plan for the same, after go through the pamphlets, T.V. advertisement, publications etc. and thereafter approached to the dealers and purchased the mobile by brand name and model number or any other insurance scheme etc. moreover, the set purchased by the replying Op from its manufacturer/distributor in a sealed and packed condition and sell out the same as he received from the Distributor/manufacturer on the nominal profit. In the eventuality, if the customer desires to see the outlook of the set, the Dealer always provided the demo-set as well as catalogue, provided by the manufacturer, hence there is no active part between the customer and manufacture. The replying op has never given any guarantee/assurance or warrantee of mobile set or any insurance plan to the complainant and he never recommended any customer to purchase any insurance policy for the same, it was the complainant himself, who desired to purchase the same. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
3. Op No.4 in its separate written statement has submitted that there is no contract between the complainant and the answering op. The two insurance policies No.6703024615240000000 w.e.f. 4.8.2015 to 3.8.2016 and insurance policy No.67030246152400000008 w.e.f. 1.2.2015 to 31.1.2016 were issued to Apps Daily Solutions Private Limited covering mobile handset all risk insurance. However, the said policies were cancelled by the New India Assurance company Limited Bomnasandra Branch w.e.f. 11.11.2015 and accordingly the information was given to the AppsDaily Solution Private Limited, Mumbai in writing and premium in respect of the remaining period was duly refunded and as such now there is no such contract of insurance in existence with Apps Daily Solution Private Limited and as such insurance company is not liable in any way after 10.11.2015. The answering op is not proper and necessary party to the complainant. On merit, it is further submitted that no policy was ever issued to the complainant, so the question of any liability of answering op does not arise at all. Remaining all the averments made by the complainant are denied by the replying Op.
4. Thereafter both the parties have led their respective evidence.
5. We have heard Ld. counsel for the parties and perused the record carefully.
6. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A, in which, he has reiterated all the averments made in the complaint. He has also produced bill issued by Op No.3 Ex.C1, policy insurance card Ex.C2, job sheet Ex.C3, terms and conditions of insurance Ex.C4, policy details Ex.C5, application given to the SP Sirsa Ex.C6, Mark A to Mark L. On the other hand, the Op No.4 has tendered affidavit of Sh.Karan Singh Chaudhary, Ex.RA, in which, he has deposed in terms of reply and also furnished documents self speaking note Ex.RB, Refund Endorsement document Ex.RC, Ex.RD, payment order Ex.RE, specimen policy Ex.RF, Revision in premium rate Ex.RG and Ex.RH. Learned counsel for the Op No.3 vide separate statement dated 27.03.2019 has requested to read the reply of Op No.3 as evidence on its behalf and did not file separate reply.
7. Whereas the role of Op No.4 is concerned, it is specific plea of Op No.4 that there was contract in between Ops No.1,2 & 4, which came to an end after 11.11.2015 qua the two policies, which was issued for the from 04.08.2015 to 03.08.2016 and 01.02.2015 to 31.01.2016, but however, the mobile in dispute was purchased by the complainant on 24.01.2016, after cancellation of the insurance contract between the Ops No.1,2 & 4.
8. In order to prove this plea, learned counsel for the Op no.4 has placed on record, the letter Ex.RB, by which, it was intimated that there is no insurance contract between the Ops No.1,2 & 4 and the same was cancelled on 10.11.2015 and the refund of the insurance premium was made vide letter Ex.RD. Payment voucher has been placed on file as Ex.RE.
9. So, it appears from the evidence of the Op No.4 that the insurance contract between the Ops No.1,2 & 4 came to an end on 11.11.2015 and the refund was already made thereafter to the Op No.1 regarding the remaining period of insurance, but however, the complainant had purchased the mobile in question on 24.01.2016. So, it appears that on the date of purchase of the mobile by the complainant, there was no insurance contract between the Ops No.1 & 4, as such, the complaint against Op No.4 stands dismissed. The application moved by learned counsel for the Op NO.4 for deleting its name from the array of the complaint also stands disposed of.
10. Since, the complainant had been approaching, time and again, to Ops No.1 to 3 for the repair, replacement of the mobile as well as for the refund of cost of the mobile i.e. Rs.39,900/- on account of the non refunding of the mobile of the complainant duly repaired. The perusal of the documents mark A to Mark L reveals that there was a correspondence between the complainant and Op No.1 for the mobile in dispute and the Ops No.1 & 2 had been assuring to the complainant that proceedings for the claim is under process and thereafter they sent the massage that the claim has been approved and the mobile has been dispatched, but however, the complainant has not received the same as per contention of the complainant. Since the mobile was duly insured with the Op No.1 & 2 and purchased from Op No.3, as such, it was the liability of the Op Nos. 1 to 3 to indemnify the loss suffered by the complainant qua damaged mobile, which they have not settled and paid which clearly amounts to deficiency in service and unfair trade practice on the part of Ops No.1 to 3.
11. In view of the above discussion, we allow the present complaint and direct the Ops No.1 to 3 to replace the damaged mobile of the complainant with same make and model or in the alternate to refund the cost of the mobile within a period of 30 days from the date of receipt of order. In the case the orders are complied within stipulated period, the Ops No.1 to 3 shall be liable to interest @ 7 % per annum on the insured amount of the mobile till its realization. We also direct the ops No.1 to 3 to further pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant A copy of this order be supplied to the parties free of costs. File be consigned to record room.
Announced in open Forum. President,
Dated: 29.04.2019. District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
