Punjab

Rupnagar

CC/17/35

Paramjit Singh Makkar - Complainant(s)

Versus

Mobi Crush - Opp.Party(s)

Sh. Manjeet Singh Nagra, Adv

04 Jun 2018

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                 Consumer Complaint No. :  35 of 02.06.2017

                                 Date of decision                    :      04.06.2018

 

Paramjit Singh Makkar, aged about 49 years, son of Sh. Gian Singh, resident of House No.7, Street No.4, Dasmesh Colony, Rupnagar, Tehsil & District Rupnagar.  

                                                                 ......Complainant                                                          Versus

1. Mobi Crush, the Mobile Hut, Shop No.2973, Phool Chakkar Bazar, Near Kalyan Cinema, Ropar, Tehsil & District Rupnagar through its proprietor

2. Apps Daily Solutions Pvt. Ltd., 6^th floor, C- Wing D3137, Oberoi Garden Estates, Chandivali Farm Road, Andheri (E), Mumbai - 400072 through its Managing Director

                                                                              ....Opposite Parties

                                   Complaint under Section 12 of the                                                      Consumer Protection Act, 1986

QUORUM

 

 

                        SH. KARNAIL SINGH AHHI, PRESIDENT

                        SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

 

 

Sh.Manjeet Singh Nagra, Advocate, counsel for complainant 

Sh. Udhey Verma, Advocate, counsel for OP No.1

Name of the O.P. No.2 deleted vide order dated 23.1.2018

  

                                           ORDER

 

              SH. KARNAIL SINGH AHHI, PRESIDENT

 

1.         Complainant has filed the present complaint seeking directions to the opposite party to replace the phone mobile with the new one; to pay Rs.20,000/- as damages for harassment;  along with Rs.10,000/- as litigation expenses.

2.    Brief facts made out from the complaint are that on 18.06.2016, complainant purchased a mobile phone make Apple I phone, model 6S 64 GB, Colour Golden, for an amount of Rs.57,000/- in cash from O.P. No.1 and got insured the same by taking out the policy of the O.P. No.2 from O.P. No.1. On 02.03.2017, the complainant was visited the vegetable market of Rupnagar and he was suddenly hit by a biker and the above noted mobile phone fell down and was damaged totally. Thereafter, on the same day, he went to the shop of O.P. No.1. and handed over the mobile phone to its proprietor and requested him to file claim regarding the damage of phone before the O.P. No.2. The O.P. No.1 received the phone and got a claim form filled up by the complainant and assured the complainant that he will file the claim regarding the damage before the O.P. No.2. Thereafter, complainant visited the shop of O.P. No.1 many a times for the replacement of his damage phone but the O.P. No.1 put off the matter on one pretext or the other.  It is further stated that on 25.5.2017, the complainant again visited the shop of O.P. No.1 and enquired about the claim his damaged mobile phone but the said O.P. told him that his claim is rejected by the O.P. No.2 for some unknown reason. The complainant demanded the repudiation slip from O.P. N.1 but he did not give any slip. Hence, this complaint.   

3.    On notice, O.P. No.1 appears through counsel and filed written reply taking preliminary objections; that the present application is not maintainable in the present form because of the fact that the claim of the complainant has been rightly rejected by the O.P. No.2, which is the competent authority to compensate the complainant regarding the damage and any kind of loss. On merits, it is stated that the complainant after using the said mobile phone for about nine months damaged his phone in order to get new one from the insurance company wrongly and illegally, which is totally against the terms and conditions of the policy of the insurance company so his claim was rightly rejected by the insurance company. The complainant is a consumer but he cannot invoke the provisions of the act wrongly and illegally to get new phone from the O.Ps. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof. 

4.    On being called upon to do so, the learned counsel for the complainant has tendered sworn affidavit of complainant Ex.C1 along with documents Ex.C2 & Ex.C3 and closed the evidence. The learned counsel for the O.P. No.1 has tendered sworn affidavit of Babli Rani, Partner of Mobi Crush Ex.OP1 and closed the evidence.  

5.    We have heard the learned counsel for the contesting parties and have gone through the record of the file, carefully.

6.    Complainant counsel Sh. Manjeet Singh Nagra, argued that on 18.06.2016 Paramjeet Singh Makkar complainant purchased Apple -1 phone from OP No.1 against a sum of Rs.57,000/- in cash. The phone was functioning and on 2.3.2017 all of sudden phone of complainant fell down and was damaged. After damage, the phone stopped functioning. At the time of purchase of the phone, it was insured with OP NO.2 through OP No.1 against any of the loss. After the incident dated 2.3.2017, complainant handed over the mobile set to OP NO.1 who assured to get it repair from OP No.2. But after that OPs did not return the phone, hence this complaint. He further argued that on 25.5.2017 complainant visited the shop of OP No.2 and enquired who reply that his claim is reject. When OP No.1 sold the mobile and then insured with OP No.2 then OPs are responsible for any of the loss. Non supplying of fresh phone or not returning after repair, amounts to deficiency in service and lastly prayed to allow the complaint.

7.    Sh. Udhey Verma, counsel for OP NO.1 argued that so far the sale purchase of the mobile set in question is concerned that is admitted but the mobile against any of the loss was insured with OP No.2 if mobile damaged then complainant has to approach OP No.2 (insurance company). He further argued that after the incident complainant approached OP No.2 who rejected the claim and lastly prayed that dispute is between the complainant and OP No.2, whereas no concern with the OP No.1 and prayed to dismiss the complaint.

8.    After filing the complaint, notice was issued to OP NO.2 but not served despite repeated notice as the correct address was not available and finally complainant withdrawn the complaint against OP No.2. that is why the name of the OP No.2 was deleted vide order dated 23.1.2018.

9.    So far the sale purchase is concern i.e. admitted by OP No.1 and OP No.1 also admitted that the purchased mobile set Apple I, Phone, Model 6S 64GB, Colour Golden was insured with OP No.2 as the complainant deposited the necessary premium. The complainant has come forward to this forum on the ground deficiency in service as well as it is a consumer dispute. From the facts, Forum is of the opinion that it is a consumer dispute and complaint is maintainable.

10.  Coming to the real controversy, whether complainant has been able to prove deficiency in service or not. Complainant has categorically pleaded in his complaint as well as affidavit Ex.C1. That after purchase and on damage of mobile set he approached to the OP No.1 and OP no.1 advised to get it repaired from OP No.2. Despite best efforts OP No.2 not appeared and correct address given in the head note was not having its office i.e. why complainant filed the different correct address and finally he has to withdraw the complaint against OP NO.2. At the same time, OP NO.1 on notice filed reply dated 01.08.2017 taking preliminary objections that claim of the complainant is not maintainable as OP No.2 has already rejected the claim of complainant which is the competent authority. On merits, admitted the sale purchase as well as issuance of the policy but in para No.3 of the written reply on merits stated that complainant has been using the mobile phone for about nine months then to get new one from the insurance company has illegally stated damage against the terms and conditions of the policy.

11.  Complainant in support of his claim placed on file affidavit Ex.C1, photocopy of purchase bill Ex.C2, then qua insurance bill Ex.C3 which proves the deposit of premium of Rs.5000/-. At the same time OP No.1 tendered affidavit of Smt. Babli Rani, partner of Mobi Crush i.e. in accordance to the written reply. Beside this not placed on file any document either of policy or rejection of claim of complainant.

12.       File reveals that after admission of this complaint notice was issued to the OP No.2 through registered cover for 07.06.2017 and returned with the report of the postal authorities "Left" and then complainant was directed to furnish correct address. Then complainant not furnished the correct address despite availing opportunity and OP No.1 appeared and sought adjournment for filing reply. He was asked to file correct address of OP NO.2. On 01.08.2017 OP No.1 filed reply but did not furnish the address of OP No.2. Finally due to non availability of correct address of OP No.2, complainant got deleted the name of OP NO.2 vide order dated 2.3.1.2018. After appreciating the facts and evidence produced on file by both the parties, the Forum has come to the conclusion that Paramjit Singh Makkar purchased Apple 1, Model 6S 64 GB, Colour Golden for a sum of Rs.57,000/-. On 18.06.2016 from OP NO.1 and at the same time it was got insured from OP No.2 by depositing premium of Rs.5000/- vide Ex.C3. OP NO.2 issued receipt qua deposit of premium and given the address but when notice issued Postal Department returned left the place. After that complainant put best effort and asked to supply the address to OP NO.1 who is in contact of OP No.2. OP No.1 did not supply the address of OP No.2 rather in its reply dated 01.08.2017 by taking legal objections replied claim of complainant has been rightly rejected but no evidence or order of rejection placed on file by OP No.1 when OP No.1 stated in its reply qua the rejection of the claim then OP No.1 is well touch with OP No.2 and correct address concealed for the best reason known to him. Complainant put best efforts firstly approach to the OP No.1 then OP No.2 and   in alternative try to find out the address, OP No.1 not cooperated i.e. why the complaint was withdrawn against OP No.2. So deficiency on the part of the OP No.1 stand fully proved because complainant was not aware qua the insurance and OP No.1 was in touch with OP No.2. At the behest of OP no.1 complainant deposited the premium with OP no.2. So, for the deficiency in service OP No.1 is responsible. 

13.  In the light of discussion, the complaint stand allowed with the direction to OP No.1 to replace the mobile set in question with the new one.  

14.  The O.P. No.1 is further directed to comply with the said order within the period of 30 days from the date of receipt of certified copy of this order, failing which to repay Rs.57,000/- (cost of the mobile set) along with interest @ 7.5% per annum since 02.03.2017 till realization with cost of Rs.5000/-. 

     15. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

                    ANNOUNCED                                                       (KARNAL SINGH AHHI)

                   Dated .04.06.2018                                      PRESIDENT

 

                                                          (SHAVINDER KAUR)

                                                                             MEMBER