BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

Consumer Complaint (C.C.)No. 1206/2016

Complaint filed on 28.04.2016

Date of Judgement.07.04.2017

PRESENT                                : 1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                       PRESIDENT

                                          2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                           MEMBER

Complainant/s               :                1. Keerthi Kumar,

S/o Srikantappa,

                                                          R/at D.No. 76, SRS Colony,

                                                          6^th cross, Besthara Block,

                                                          Hootagalli, Mysuru.

(Sri Somanna.M.E., Advocate)

V/s

Opponent        /s                     :       1.The Manager,

                                                          Biscoot Team,

                                                          Shot formats digital works

Production Pvt., Ltd

406/407 Express Zone,

Express highway Maland East,

Mumbai . 400097.

(Eaparte)

2. The Manager, (Claims)

New India Assurance Company Ltd.,

Registered office: New India Building,

87, Mahatham Gandhi Road,

Fort, Mumbai-400001.

(Sri  Jaganatha suresh kumar  ., Advocate)

3. The proprietor,

Mahaveer Distributors,

No. 246, New No. M-125,

KRH. Road,

(Near Cauvery Emporium Cross)

Mysuru.

(Sri  M.N.Praksh Kalappa ., Advocate)

SHRI RAMACHANDRA . M.S.,

 PRESIDENT

JUDGEMENT

The complaint filed under section 12 of Consumer Protection Act, for a direction to opposite party to replace the mobile handset  and other reliefs as prayed in the complaint.

2. The brief facts of the complainant is that the complainant purchased apple I phone 6.16GB  gold , SL no F 73F329RG5MG and IMEI No 352028070355065 from the 3^rd opposite party on 26.08.2015 it was insured with 2^nd opposite party through the 3^rd opposite party on 12.10.2015 at about 7.30 when complainant was using his mobile at Mysuru mall accidently some un know person pushed him due to that the mobile phone fell down it was damaged, there after complainant approach the 3^rd opposite party  he referred  the same to opposite party no.1 for settlement of claim . But in spite f best effects complainant name of the opposite parties tryed to settle the claims of complainant for which complainant filed the complaint seeking for the relief of replacement of mobile phone of same model along with   other relief as prayed in complainant.

3. The notice to the opposite party 1 to 3 are duly served represented by their counsel except opposite party no.1 remained absent was placed exparte. Opposite party no .2 and 3 filed their version the opposite party no

. 2 contends that they admit the sale of mobile phone they deny the issue of policy in respect of alleged mobile hand set which was purchased by complainant from the 3^rd opposite party. In para 8 of the version they clearly contends that they have not issued any insurance policy to the complainant, they not received any claim from him. Further opposite party no 2 denied all other allegations and prays for the dismissal of complainant. Further opposite party no.3 in his version statement admit the sale transaction of mobile hand set on 26.08.2015 with complainant in para 2 of version they admit that the hand set was insured  with opposite party no .2 as per the available records with opposite party no.3.

4. Further opposite  party no 3 denies other averments and allegations of complainant and since he is only the dealer having  retail  out let selling multi brands mobile handset it si also very clear that when complainant approached with claim with the damaged mobile phone he directed the complainant to the place. Where he can claim the insurance for the damage of mobile phone in such event he prays that he is not liable to replace the hand set and prays for the dismissal of complaint against him.

5. Both the complainant opposite parties have filed their chief examination affidavit along with supporting documents in support of their contention heard  arguments after perusal of written argument matter is set down for orders.

6. The points that arise for our consideration are;-

1. Whether the complainant proves that there is deficiency in service on the part of opposite party by not setting the claim of complainant and thereby e proves that he is entitle for the reliefs sought?

2. What order?

7. Our answer to the above points is as follows;

1. Point No.1: Partly in the affirmative.

2. Point No.2: As per final order for the following;

REASONS

8 . Point No.1:- That it is an undisputed fact that there is a sale transaction of mobile hand set apple I phone 6  Rs. 8,900 on by complainant with opposite party no .3 who is dealer of various mobile hand set opposite party no .2 is the alleged insurer of the said mobile hand set and opposite party  is the manufacture of the mobile all these facts is also admitted by the opposite party no .3

9. Further on 12.10.2015 at about 7.30 when complainant was using his mobile hand set at Mysuru Mall accidentally some unknown person pushed him from back side due to that the mobile hand set, fell down and it was  damaged then after complainant approached opposite party no 3 for settlement of claim upon which he directed to approach opposite party no.2 company as the hand was insured with them inspite of best effects none of the opposite party settled the claim resulting in the complaint filed.

10. Further opposite party no 2 in his version has clearly and categorically denies that the alleged mobile set is not at all insured with their company when such being the case they claim that they are not all liable to pay the claims of complainant and there after opposite party no .3 in his version statement and chief affidavit has admitted in para 2 of version and affidavit  he that the above mobile hand set was purchased by complainant is insured with opposite party  2 further they even admit that the records in respect of insurance mobile hand set is available in their shop, except the admission of issuance of policy they have not produced any documents to support their defence . Further when opposite party no .2 has contended that the complainant hand set is not at all insured with their company the posted in ability to settle the claim and contends they are not liable to pay the claims.

11.Further on 28.02.17 complainant has maintained an IA u/o 12 Rule 8 of CPC against the opposite party no .3 by calling upon him to produce  the insurance particulars of mobile hands as admitted by him in the version and chief affidavit inspite of sufficient opportunity opposite party no.3 neither approached nor furnished or  complied the IA there after compliance of opposite party no.3 to the IA filed by  complainant is taken as not filed or complied , in view of admission both in version and affidavit and also for non compliance of IA to produce insurance particulars we are force to draw on adverse inference against  opposite party no .3 in favour of complainant he being the dealer is liable to settle the claim of complainant by his act and  admission he has made us to believe that it is bounded duty to furnish the insurance particulars when he admits insurance policy when he fails to produce the same,  it is nothing but an un fair trade practice,  there is a clear deficiency in service on his part for which he is liable to pay the claims of complainant.

12. The claims against opposite party  no .2 is dismissed for the reason that there is no material evidence to believe that the alleged mobile hand set is insured with  company and opposite party no.2 also contends that the same defence in view of this the claim against opposite  party no .2 is dismissed.

13. The opposite party no .1 he being the manufacture of the mobile hand set in spite of service of notice he remained absent was placed exparte. In view admission of opposite party no 3 regarding the issuance of the policy in respect of above mobile hand set the claims against opposite party no.1 is dismissed he is not liable to pay any claims of complainat.

14. For the above reasons by looking at the facts and documents produced by complainant has proved his case beyond reasonable doubt and also complainant proved that there is deficiency  of service on the part of opposite party no.3  by doing unfair trade practice.

15. According to this forum we answered Point no.1 in the partly affirmative and pass the following:

16. Point no.2:- For the above discussion we here by proceed to pass the following:

ORDER

1. The complaint is hereby allowed in part.
2. The opposite party no.3 is directed to give new mobile hand set of the make apple I-phone 6, 16 G B gold serial no F73Q329RG5MQ or to repay the price of Rs. 48,900/- to the complainant within 60 days of this order.
3. In default to comply the above order opposite party no.3 is directed to pay a penalty of Rs. 50.per day from the  date of 60^th day of order till day above order is complied .
4. The opposite party no.3 is directed to pay Rs. 5, 000/-towards  un fair trade practice and  Rs. 3,000/- towards mental agony and Rs. 5,000/- towards litigation expenses to the complainant. within 60 days of this order.
5. In default to comply, the above order the opposite party  no 3 shall pay interest at 15%  p.a. on the said total sum of Rs. 13,000/- from the date of this order till payment made.
6. The complaint against opposite party no 1 and 2 is dismissed.

7 . In case of default to comply this order, the opposite party shall

    undergo imprisonment and also liable for fine under section 27 of

     the CP Act, 1986.

8.Give the copies of this order to the parties, as per Rules.

(Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 7^th   April  2017)  

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                             President.                                           

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRODUCED ON BEHALF OF COMPLAINANT

Evidence by way of affidavit on behalf of complainant:

CW-1           :   SRI. KEERTHIKUMAR

List of Documents on behalf of complainant:

1        :         Bill issued by Mahaveer distributors dated 26.08.2015

2        :         Claim Letter dated  26.08.2015

3        :         Declaration form dated 26.08.2015

4        :         Legal notice dated 20.02.2016

5        :         Insurance card of new India Assurance co. Ltd.,

LIST OF WITNESSES EXAMINED AND DOCUMENTS PRDOUCED ON BEHALF OF OP.

Evidence by way of affidavit on behalf of OP :

Rw-1(OP2)            :         WALTER VASA

Rw-1(OP3)            :         Smt. SUNITHA

List of Documents on behalf of OP :

Nil

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                             President.