Haryana

Ambala

CC/6/2017

Kusum Lata - Complainant(s)

Versus

Micky Communication - Opp.Party(s)

19 Feb 2018

ORDER

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                                    Complaint case no.        :  06 of 2017

                                                                    Date of Institution         : 06.01.2017

                                                                    Date of decision   : 19.02.2018

 

 

Kusum Lata W/o Jaspal Singh R/o 23 Jalbera Road, New Durga Nagar, Ambala City,(Power of attorney given to Ram Singh s/o Hari Singh R/o H.No.44, Parsuram Colony, Jalbera Road, Ambala City) District Ambala. 

……. Complainant.

Vs.

 

1. Micky Communication, Manav Chowk, Ambala City District Ambala (Through its Prop)
2. Samsung Service Centre, Model Town, Near Model Town, Gurudwara, Ambala City (Through its service Manager)
3. Bajaj Allianz General Insurance Company Ltd. GE Plaza, Airport Road, Yerawada, Pune-411006 (Through its G.M.)
4. Samsung Mobile Manufacturer A-25, Ground Floor, Front Tower Mohan Co-operative, Industrial Estate, New Delhi Pin Code-110044 (Through its G.M.)

….….Opposite Parties.

 

 

Before:           Sh. D.N. Arora, President.

                                    Sh. Pushpender Kumar, Member.

Ms. Anamika Gupta, Member.                              

 

 

Present:          Sh. Ram Singh, GPA for complainant.

                                    Sh Rajeev Sachdeva, counsel for the OPs No. 2 & 4.

Sh. R.K.Vig, counsel for the OP No.3.

OP No.1 already ex parte v.o.d. 22.02.2017.

 

ORDER:

In nutshell, brief facts of the present complaint is that the complainant had purchased Samsung  mobile model-Galxy-A5, vide IMEI No.359932064349294 for Rs. 17000/- from  OP No.1 vide bill no.20225 dated 14.04.2016 with one year warranty. He make an insurance through OP No.1 after paying Rs. 1304/- premium extra vide Policy No.OG-17-1207-9931 00000009. On 20.04.2016, s                                                                                                                                                                                                                                                                                                                                                                                                          he abovesaid mobile set giving problem like bend(to give a curved shape of mobile) or Battery Low, switch on off automatically  and not working properly, then the OP No.1 advised to the complainant went to service centre i.e. OP No.2 and after that official staff of the service centre advised to the complainant went to the Insurance company with job car which is given to the complainant by  OP No.2. On 25.04.2016 the complainant went to insurance company/OP No.3 and after checking the mobile set by the rep of OP No.3  and then return the same to the complainant without repair and no satisfied reply/ service given to the complainant  by the OP No.1,2 & 3 accordingly. On till date no action has been taken by the OPs  for repair or replace of her mobile. The complainant again and again approached to the OPs No. 1 to 3 but not attend the complainant properly and flatly refused to do anything in the matter. Because of the problems  of the mobile set & attitude of OPs, complainant has to harass and suffered mental, physical and monetary loss which is a clear deficiency  in service on the part of Ops as well as unfair trade practice on their part. Hence, the present complaint.

2.                     Registered notice issued to Op No.1 but none has turned up on his behalf and he was proceeded against exparte vide order dated 22.02.2017. Upon notice, OPs No.2 & 4 appeared through counsel and tendered written statement and stated that there is no privity of contract between OPs No.2 & 4 and OP No.3 i.e. insurer  of the unit. That the Samsun Electronics Co. Ltd. has an impeccable online system to enter all service requests/complaints vide IMEI/Sr. No. of the unit in each and every case but in the present complaint as per details mentioned in the complaint, no details  were found in the online system of the  OPs No. 2 & 4 which means that complainant  has never approached the OPs No.2 & 4 and OP No.2  has established a number of service centers across the country and if there is any issue in the said unit, the complainant may approach  any of the service centers. They have never refused to provide services to complainant.

Upon notice, OP No.3 appeared through counsel and tendered written statement and stated that after receiving the intimation of the claim from the nephew of the claimant, the representative of the OP No.3, called the nephew of the claimant to take necessary information towards the claim. Further, it was found that the person who had intimated the claim was actually the one who was using the insured phone and not the claimant herself. It was further observed that the user had faced certain issues and damages to the said insured phone approximately 2 months before the intimation of the claim which had also certain manufacturing damages and complaints. However, without rectifying the said damages from the manufacturer or the dealer,  the person who was using  the insured phone continued to use the phone despite  having manufacturing  default and accidental damages caused appro. 2 months before intimating the claim to OP No.3.The said user of the insured phone, reported the claim only after the phone was totally damage and non functioning. However, he was using the phone for his personal use and he does not recollect  the exact  date and cause of loss and further  he has intimated  the claim only after the said phone was totally non functioning.  The handset was having manufacturing default and other accidental loss since last 2 months before reporting the claim. OP No.3 further stated that in the absence of any complaint, the OP is not thus, legally required to act suo motto to remove defect, which was never reported. Therefore, there are no deficiency on the part of OPs and prayed for dismissal of the present complaint.

3                      To prove his version the GPA for complainant tendered his affidavit as Annexure C-X along with documents as Annexure C-1 to Annexure C-2 and close his evidence. On the other hand, Counsel for the OPs No. 2 & 4 tendered affidavit of Anindya Bose as Annexure RW2/A  alongwith document Annexure R-1/2 and close their evidence. Counsel for the OP No.3 tendered affidavit as Annexure R-X alongwith documents Annexure R/1/3 to R/5/3  and close his evidence.

4.                     We have heard learned counsels for both the parties and carefully gone through the case file. The case of complainant is that the complainant had purchased a mobile phone for Rs.17,000/- from the OP No.1 vide bill No.20225 on dated 14.04.2016 (Annexure C-1) and OP No. 1 also issued Bajaj Allianz General Insurance (Insurance Policy) on payment of Rs. 1304/-  vide Policy No.-OG-17-1207-9931 00000009 which was having one warranty (Annexure C-2). Perusal of the file reveals that the mobile set developed problems like bend(to give a curved shape of mobile), battery low, switch on off automatically and not working properly within its warranty period and the mobile phone has not been rectified or replaced by them to the complainant till date inspite of various visits by complainant.

On the other hand, counsel for OPs No.2 & 4 has argued that the OPs  No.2 & 4 have no privity of contract with insurer of the said unit and is not responsible for any act of insurer. They provides one year warranty from the date of purchase of the unit, warranty means in case of any issued arising out on account of any manufacturing defect or faulty workmanship with unit, the unit will be repaired or its part will be replaced as per warranty period and the OP No.3 who is Insurance Company has no concern with the OPs No.2 &4.

Perusal of the file, it is clear that the complainant alleged that he has insured his mobile with OP No.3 by paying the amount of Rs.1304/- for one year in any type of damage but in reply filed by the company OP No.3 has  taken the stand that the person who have intimated the claim was actually the one who was using insured phone not by herself and person who was using  the insured phone continued to use the phone despite  having manufacturing  default and accidental damages caused approximately 2 months before intimating the claim to OP No.3. Further taken the plea that reporting the claim only after the phone was totally damage and non functioning and user has not mentioned in the claim exact date of cause of loss and he also not produced any evidence to show as to how the mobile phone got totally  bend because in the claim summary it has been mentioned that before damage it was being used for two months after the incident and even the handset was being used other than the purchaser thereof and in this regard attention of this Forum has been drawn towards Annexure R-3/3. The  complainant  in his complaint alleged that the service centre had issued a job card after inspecting the mobile in question and also found that the same was not in working condition but it is strange that the complainant has neither produced the job sheet as alleged by him in his complaint nor  moved any application for summoning the relevant record from the service centre i.e. OP No.2 which shows that  the complainant has not approached this Forum with clean hands rather in order to take benefit of the liberal provisions of the Consumer  Protection Act has filed the present complaint by twisting the facts without leading any corroborating and cogent evidence, therefore, the present complaint deserves dismissal.  Accordingly, we dismiss the present complaint with no order as to costs. Copy of the order be sent of parties concerned as per rule. File be consigned to record room after due compliance.

 Announced on : 19.01.2018

 

 

                       

(PUSHPENDER KUMAR)         (ANAMIKA GUPTA)   (D.N. ARORA)

Member                     Member                                     President