IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 17TH DAY OF October 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Sri. M.Praveen Kumar,Bsc, LLB ,Member
CC.No.293/2016
P.A.Priji : Complainant
S/o N.Aravindan
Priya Sadanam
Pattathanam P.O
Vadakkevila Village
Kollam
[By Adv.R. Santhoshkumar & K.Vinu, Kollam]
V/S
1. Managing Director : Opposite parties
Apps Daily Solutions Pvt.Ltd
6th Floor, C Wing, Oberoi Garden Estate
Chandivali Farm Road, Andheri East
Mumbai – 400072
2. Proprietor
Sky Cell , Ground Floor
R.P.Mall, Kollam
[By Adv. G.Vijayakumar, Kollam]
3. Apps Daily Solutions Pvt.Ltd
Lakshmi Arcade , Vallikezhu
Kavanad Post
Kollam
ORDER
Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President
This case is based on a consumer complaint filed under 12 of Consumer Protection Act. The complainant is an advocate by profession. On 31/07/2016 the complainant purchased a Samsung brand mobile model No.SM-A710F, IMEI No.356825077432508 for an amount of Rs.27,000/- (Rupees Twenty Seven Thousand only) from the 3rd opposite party. While purchasing the said mobile phone
(2)
one of the executive namely Renjith attached to 2nd opposite party introduced the complainant about the mobile insurance software of the 1st and 2nd opposite parties. As per the terms and conditions of the said software 1st and 2nd opposite parties offered (1) protection to device against theft, burglary and physical damage including fluid damage, during the protection term. (2) In case of damage the company will either repair or replace the device with refurbished mobile handset, of similar brand having similar specifications considering the age and condition of the original device . (3) The endeavor of the company is to bring back the device into working condition. (4). The company will protect the mobile and get a guaranteed repair or replace the phone. (5) The application covers the entire value of the mobile as per the mentioned value on the original purchase invoice of the phone. (6) If any damage taken palace to the mobile all defects covered under manufacturer warranty – both cost of the part and labour. (7) All claims would be processed by the company within 10 working days, post scrutiny of the facts and the documents submitted to the company connect point and repair or replacement of the damaged device shall be done within 10 working days from the date of required for documentation and damaged device at the company’s connected point.
By convincing the above said facts narrated by the said executive the complainant purchased 1st and 3rd opposite party’s insurance software by remitting an amount of Rs.1750/- . Unfortunately the said mobile got damaged (display/Screen (Crack on display and speaker low volume) and unfit for use. The complainant
(3)
intimated the said complaint through 2nd opposite party and obtained the confirmation message. Thereafter the complainant approached 3rd opposite party on 30/09/2016 and produced the said damaged mobile along with all necessary documents which the executive demanded. In addition to the same complainant paid Rs.1350/- (Rupees one thousand three hundred and fifty only) which was demanded by the executive of the 1st and 3rd opposite party namely Gopika .
However the 1st and 3rd opposite party informed the complainant that there is non availability of spare parts of the said mobile. If there is non availability of the spare parts, 1st and 3rd opposite party are bound to replace the same or pay the invoice amount as per the terms and conditions. But 1st and 3rd opposite party did not replace or pay the full cost (bill amount) till date. The said mobile is very much essential to the complainant’s personal as well as professional activities. The complainant have more than sixteen years of practice thus the non availability of the mobile phone has seriously affected all of his activities. It cannot be calculated in terms of money. But for the purpose of this petition it is limited to Rs.25,000/-(Rupees Twenty Five Thousand only) .
On 20/09/2016 the complainant sent a notice to the opposite parties demanding to replace or pay the full cost (bill amount ) of the damaged mobile. But the opposite parties did not even sent a replay or replace or pay the full cost (bill amount) of the damaged mobile as stated in the notice. The office copy of the said notice, postal
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receipts and acknowledgment cards are also produced along with the complaint. But on 26/10/2016 the 1st and 3rd opposite parties credited an amount of Rs.6474.40 (six thousand four hundred and seventy four rupees and forty paisee only) in the account of the complainant and on 05/11/2016 the 1st and 3rd opposite parties sent email and mobile SMS to the complainant stating that “ we are happy to inform you that your phone and documents under claim intimation No.ADN30_ 290816_197765701 have been dispatched from your customer connected point to your service centre for further processing we shall keep you updated on the progress of your claim please call as on 02261555222 for any quarries. Subsequently on 07/11/2016 the 1st and 3rd opposite parties sent another email and mobile SMS to the complainant stating that “ we are happy to inform you that your phone and documents under claim information No.ADN30_290816_197765701 have been received at our service centre for further proceeding we shall keep you updated on the progress of your claim please all as on 02261555222 for any queries ” . There after the complainant contacted 1st and 3rd opposite parties as per the aforesaid informations , but the opposite parties failed to satisfy the complainant as per the terms of the agreement.
The complainant is a consumer of the opposite parties. Opposite parties are joint by and severally liable to compensate the complainant. All the activities of opposite parties are the gross violation of the terms and conditions of insurance application software and amounts to deficiency in service and unfair trade practice. The opposite parties purposely have done all the said activities with an intension to
(5)
cheat and make unlawful gain from complainant and thereby causing unlawful gain to the opposite parties. The opposite parties are liable to compensate the mental agony harm and inconvenience caused to the complainant which has been limited to Rs.25,000/-. The opposite parties are also liable to pay the filing expenses of this petition. ie an amount of Rs.2500/- besides the cost of the proceedings.
Though notice was served on opposite parties No 1 to 3 , opposite party No.2 entered appearance through advocate G.Vijayakumar and others not turned up.
However no version has been filed by opposite party No. 2. As the averments in the complaint is neither denied. Opposite parties No.1 and 3 are also remain exparte. The complainant has filed affidavit in lieu of chief examination by reiterating the averments in the complaint and got marked Exts P1 to P11 documents. However the learned counsel for the opposite party 2 has cross examined the complainant when he was in the witness box as PW1. Though the learned counsel for the 2nd opposite party cross examined PW1 nothing materials has been brought out to disbelieve the oral evidence of PW1.
The points for consideration are :-
- Whether there is any deficiency in service or unfair trade practice on the part of opposite parties 1 to 3?
- Whether the complainant is entitled to get compensation as prayed for?
- Reliefs and costs?
(6)
Points No.1and 2:-
The oral evidence of PW1 coupled with Ext.P1 and P2 documents would establish that on 31/07/2016 the complainant purchased a Samsung brand mobile model No.SM-A710F, IMEI No.356825077432508 for an amount of Rs.27,000/- (Rupees Twenty Seven Thousand only) from the 3rd opposite party. While purchasing the said mobile phone one of the executive namely Renjith attached to 2nd opposite party introduced the complainant about the mobile insurance software of the 1st and 2nd opposite parties. As per the terms and conditions of the said software 1st and 2nd opposite parties offered (1) protection to device against theft, burglary and physical damage including fluid damage, during the protection term. (2) In case of damage the company will either repair or replace the device with refurbished mobile handset, of similar brand having similar specifications considering the age and condition of the original device . (3) The endeavor of the company is to bring back the device into working condition. (4). The company will protect the mobile and get a guaranteed repair or replace the phone. (5) The application covers the entire value of the mobile as per the mentioned value on the original purchase invoice of the phone. (6) If any damage taken palace to the mobile all defects covered under manufacturer warranty – both cost of the part and labour. (7) All claims would be processed by the company within 10 working days, post scrutiny of the facts and the documents submitted to the company connect point and repair or replacement of the damaged device shall be
(7)
done within 10 working days from the date of required for documentation and damaged device at the company’s connected point.
It is also clear from the available materials that by convincing the above said facts narrated by the said executive thus the complainant purchased 1st and 3rd opposite party’s insurance software by remitting an amount of Rs.1750/- . Unfortunately the said mobile got damaged (display/Screen (Crack on display and speaker low volume) and unfit for use. The complainant intimated the said complaint through 2nd opposite party and obtained the confirmation message. Thereafter the complainant approached 3rd opposite party on 30/09/2016 and produced the said damaged mobile along with all necessary documents which the executive demanded. In addition to the same complainant paid Rs.1350/- (Rupees one thousand three hundred and fifty only) which was demanded by the executive of the 1st and 3rd opposite party namely Gopika .
Though the learned counsel for the 2nd opposite party has cross examined PW1 nothing has been brought out to disbelieve the above version of PW1 and Ext.P1 and P2 documents . It is also clear from the available evidence including Ext.P3 to P8 documents that inspite of repeated demand the 3rd opposite party has not cured the defects and returned the mobile phone nor paid the invoice amount as per the terms of the policy . It is also brought out in evidence through PW1 that the said mobile is very much essential to the complainant’s personal as well as
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professional activities. The complainant have more than sixteen years of practice thus the non availability of the mobile phone has seriously affected all of his activities.
It is also an admitted fact that after sending Ext.P3 notice the 1st and 3rd opposite parties credited Rs.6474.40 in the bank account of the complainant and thereafter taken by the grievance of the complainant seriously and sent Ext.P.9 & P.10 SMS and shall update the progress of the claim of the compliant. There after the complainant contacted 1st and 3rd opposite parties as per the aforesaid informations, but the opposite parties failed to satisfy the complainant as per the terms of the agreement. The above said agreement is marked as Ext.P11. The oral evidence of PW1 coupled with Ext.P1 to P11 documents would establish that complainant is a consumer of opposite parties that complainant purchased the insurance software from the 2nd opposite party and when it damaged the same was intimated to the 2nd opposite party who processed CIN No.ADN30_ 290816_197765701 of the 1st and 3rd opposite parties. It is also clear from the available materials that as per the terms and conditions of the warranty the 1st and 2nd opposite party offered protection from theft, burglary and physical damage and in the case of damages company will either repair or replace the device with refurbished mobile handset, of similar brand having similar specifications considering the age and condition of the original device. However it is clear from the available materials that there is deficiency in service on the side of all the opposite parties as they fail to replace the damaged handset which is against the terms of the warranty till date. Hence there is clear deficiency in service and unfair
(9)
trade practice on the part of opposite parties 1 to 3. It is also brought out in evidence that the complainant being a lawyer having active practice has sustained much in convenience and annoyance in his profession and also caused much mental agony due to the non working of his mobile phone. Therefore the complainant is entitled to get an order as prayed for in the complaint.
In the result, complaint stands allowed, directing the opposite parties 1 to 3 to pay Rs.48,086/- as claimed in the complaint with interest @ 9% per annum from the date of petition till the date of recovery within 30 days from the date of receipt of a copy of this order. The opposite parties are also directed to pay Rs.3000/- as cost of the proceeding to the complaint failing which the complainant is allowed to recover the said amount with same interest and cost from opposite parties 1 to 3 jointly and severally and from their assets.
Dictated to the Confidential Assistant Smt.Vijimole.G transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 17th day of October 2018.
E.M .MUHAMMED IBRAHIM:Sd/-
M.PRAVEENKUMAR:Sd/-
Forwarded/by Order
Senior Superintendent
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INDEX
Witness examined for complainant
PW.1:-P.A.Priji
Documents marked for the complainant
Ext.P1:- Bill of the 2nd opposite party dated 31/07/2016
Ext.P.2 :- Receipt of the 3rd opposite party dated 30/08/2016
Ext.P.3:- Office copy of the notice dated 20/09/2016
Ext.P4:- Postal receipt dated 20/09/2016
Ext.P.5 :- Postal receipt dated 20/09/2016
Ext.P.6:- postal receipt dated 20/09/206
Ext.P.7:- postal acknowledgment dated 22/09/2016
Ext.P.8:- postal acknowledgment dated 22/09/2016
Ext.P.9:- Email dated 05/11/2016
Ext.P.10:- Email dated 07/11/2016
Ext.P.11 :-END USER AGREEMENT
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar:-Sd/-
Forwarded/by Order
Senior Superintendent
