Delhi

North East

CC/347/2016

SUNIL DUTT - Complainant(s)

Versus

Mobile Cafe - Opp.Party(s)

09 Aug 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 347/16

 

In the matter of:

	Sunil Dutt S/o Shri Karan Singh R/o C-433, Shaheed Nagar Post Chikambarpur, Ghaziabad-201006 (U.P.)	Complainant
	Versus
1.       2.       3.	Mobile Care F-15, Dilshad Colony Near Corporation Bank, Delhi-110095.   M. Sure (R.V. Solutions) C-8/135, Keshav Puram, Lawrence Road, Backside of CB Bus Stand, Delhi.   Micromax Informatic Ltd Mircomax House, 90b, Sector-18 Gurgaon-12201.	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION:

15.12.2016 09.08.2019 09.08.2019

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Shorn of unnecessary details, facts relevant for the disposal of the present complaint are that the complainant had purchased a mobile handset model Micromax A-120, bearing IMEI No. 911367108888968 and 911367109613989 manufactured by OP3 from OP1 dealer on 18.04.2015 for a sum of Rs. 8,500 /- vide invoice no. 554/ book no. 06. At the time of purchase of the said mobile, the complainant was asked by OP1 to get the mobile handset insured against any damage and theft with free pick and drop and warranty transfer facility from OP2 and the complainant acting upon the representation of OP1 and assurance of security of his mobile handset and replacement thereof in case of any untoward incident in future, got the same insured with OP2 on payment of Rs. 850/- as premium made to OP1 for the Mobile Cashless Protection Plan provided by OP2 vide policy no. 4223 and a Receipt / Certificate for the said policy under the stamp and seal of OP1 was issued by OP2 to the complainant extending Protection Plan valid for two years from the date of device purchased i.e. from 18.04.2015 to 17.04.2017. However, when the said mobile started giving touch function problem after 10 months of usage i.e. around February 2016 and complainant approached OP1 for getting the same repaired, OP1 asked him to leave his mobile so that the same can be sent to OP3 and the same shall take 15 days time. Despite difficulty of the complainant and deprivation of mobile for the said period, the complainant agreed and OP1 returned the said mobile repaired after 15 days. But the mobile functioned only for 2 months thereafter i.e. till May 2016 and the same problem of touch reoccurred for which he again went to OP1 to get the same defect repaired and OP1 took another month to get the mobile repaired and returned it to the complainant in June 2016. The mobile handset worked for the next 8 months and again went out of order in December 2016 and at this point when the complainant went to OP1 on 12.12.2016 for getting the same repaired, OP1 declined to help the complainant despite the said mobile being still under insurance till April 2017 on the pretext that OP2 was untraceable and OP1 was not liable to rectify the problem in the said mobile. The complainant argued with OP1 that he had no knowledge about OP2 and it was OP1 which had extended Insurance Protection Plan Cover Note to the complainant under its stamp and seal and was assured to come to OP1 in case of any problem faced with the mobile. However, a lady official of OP1 started threatening the complainant and rudely sent him away from the shop. The complainant sought police intervention in the matter but was cautioned of a long drawn dispute with far reaching consequences and therefore did not pursue criminal action. Lastly, the complainant was compelled to file the present complaint before this Forum praying for issuance of directions against the OPs to release the mobile insurance amount of Rs. 8,500/- alongwith compensation of Rs. 20,000/- for mental harassment and Rs. 10,000/- towards cost of litigation.

Complainant has attached copy of retail invoice issue by OP1 towards purchase of mobile and copy of insurance certificate issued by OP2 under the stamp and seal of OP1 granting coverage against screen, water, touch and total damage alongwith theft and any other physical damage with free and drop and warranty transfer facility.

2. Notices were issued to OPs on 04.01.2017. OP1 and OP3 were served on 11.01.2017 and 12.01.2017 respectively and despite best efforts, OP2 could not be traced and therefore could not be served. Nonetheless, the complainant stated in hearings held on 03.03.2017 and 30.03.2017 that OP1 had in fact issued the mobile insurance policy though in the name of OP2 but was under the stamp and seal of OP1 from whom complainant had purchased the mobile and policy and therefore the entire liability is of OP1. Due to non appearance of OP1 and OP3, they were proceeded against ex-parte vide order dated 03.03.2017.
3. Complainant filed ex-parte evidence by way of affidavit and written arguments in reiteration of his grievance against the OPs.
4. OP3 appeared on 09.07.2018 and filed written arguments in vide which it submitted interalia that as per complainant’s own case, the subject mobile started giving problem 14 months after its purchase by which time the warranty of the mobile had already expired and since the complainant had opted for insurance plan from OP2 through OP1 and not OP3, no cause of action for filing complaint arose against OP3 as no allegation has been leveled against it coupled with the fact that complainant had never approached its authorized service centre for complaint of any nature within the warranty period. OP3 further denied any deficiency of service on its part or any manufacturing defect in the said mobile as the same has not even been claimed or alleged by the complainant in the present complaint and prayed for dismissal of the complaint qua OP3.
5. The complainant has filed photographs of OP1 shop at the last known address during the course of addressing oral arguments.
6. We have heard the arguments addressed by complainant and have perused the documents placed on record on which perusal a key observation has come to light that the insurance cover note issued by OP2 bears the stamp and seal of OP1 which clearly establishes that OP1 and OP2 had mutually beneficial business relationship and at behest of OP1, the complainant was coerced into taken insurance cover from OP2. The said exercise was for business promotion of each other in the market for commercial gains. Therefore the role of OP1 and OP2 in the present complaint and inter se is rather collusive in as much as furthering each other’s commercial interests.        
7. In the present case since the subject mobile was duly insured with OP2 at the behest of OP1 as can be seen in the insurance certificate, both OP1 and OP2 were liable to pay the insurance claim amount to the complainant but since OP1 had received consideration amount for the said handset as well as premium amount for insuring the said handset from the complainant, but failed to discharge its contractual liability towards the complainant, this act in our view is act of deficiency of service and unfair trade practice. However, mitigating fact that cannot be lost sight of is that as per complainant’s own admission in his written arguments, the OP1 had got the said mobile repaired twice, firstly after 10 months of purchase i.e.  February-March 2016 and secondly in May- June 2016. It was only on the third occasion i.e. December 2016 when OP1 declined to help the complainant to get the mobile repaired.     
8.  We therefore direct OP1 as seller of mobile handset and beneficiary/recipient of insurance premium consideration for mobile protection plan to pay the insurance claim amount of  Rs. 8,500 /- cost of mobile alongwith Rs. 850/- towards premium for Mobile Cashless Protection Plan to the complainant. We further direct OP1 to pay compensation of Rs. 2,500/- towards mental agony and harassment suffered by the complainant. No order is passed against OP3 as manufacturer of the mobile handset since the case pertains to the insurance and not of any manufacturing defect therein.  Let the order be complied by OP1 within 30 days from the date of receipt of copy of this order.                                 
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.  File be consigned to record room.
11.  Announced on 09.08.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member