BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.218 of 2016

Date of Instt. 18.05.2016

Date of Decision: 26.07.2017

Ajay Kumar S/o Late Sh. Kewal Krishan, age about 35 years old, R/o EG 926 A Mohalla Gobindgarh Jalandhar City.

..........Complainant Versus

1. Mobile House H.O Chadha Mobile House Pvt Ltd, Regd Office Phagwara Gate, Near Bhagat Singh Chowk Jalandhar through its manager.

2. Samsung India Electronics Pvt. Ltd., B-1, Sector 81, Phase II, Gautam Budh Nagar, Noida District, Uttar Pradesh through its manager.

3. Samsung Service Centre, First Floor Pam Rose building near bus stand Jalandhar through its manager.

4. Apps daily solutions pvt. Ltd Regd. Office D3137-39 Oberoi Garden Estates Chandivali Farm Road. Andheri (E) Mumbai 400072 through its manager.

5. Apps Daily service centre, first floor preet gift center, Main Road, Aman Nagar, Near KMV College Jalandhar through its manager.

….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President)

Sh.Parminder Sharma (Member)

Present: Sh. Prince Tayal, Adv Counsel for complainant.

OP No.1, 3, 4 and 5 exparte.

Sh. Vishal Chaudhary, Adv Counsel for OP No.2.

Order

Karnail Singh (President)

1. This complaint presented by complainant Ajay Kumar, wherein alleged that he is a consumer under the Consumer Protection Act and he is competent to file the present complaint. The complainant has purchased a mobile, model as Samsung mobile grand prime No.356554067729364 from OP No.1, vide cash memo No.5715 on 03.05.2015. The OP No.1 allured the complainant to get the said mobile insured with a meager amount of Rs.1200/- for one year insurance which will be covered all kind of losses such, theft, burglary, physical damages and fluid damage etc. As allured the complainant agreed to proposal of the OP No.1 and paid Rs.1200/- in cash, accordingly the OP No.1 delivered an insurance bill along with one booklet. The warranty period of the said mobile was also one year from the date of bill for any defect.

2. That on 27.04.2016, the complainant was going to Jyoti Chowk from New Courts Jalandhar that area was highly crowded. His phone was in his shirt pocket and one vehicle was on high speed, who rashly and negligently hit him on the back side of his motor cycle and his mobile was fell down on the road near Jyoti Chowk and his mobile phone touch screen was damaged and stopped to work. On 27.04.2016, complainant informed the apps daily mobile protection OP No.4 through E-mail and a complaint was registered by the OP No.4 and issued provisional claim intimation number AD-D-280416-3043744. The complainant visited Samsung service centre OP No.3 on 30.04.2016 and OP No.3 issued a job card with remarks that mobile touch screen damaged and it is not covered under warranty, even the said mobile phone is under warranty, then complainant requested to OP No.3 that OP No.2 and 3 has tie up with OP No.4 and 5 and the said phone is insured by OP No.4 by charging Rs.1200/-. So, kindly may help to get the insurance claim and OP No.3 suggested to complainant to approach OP No.5. The complainant approached the insurance company service center OP No.5 for getting the insurance claim that mobile was insured by the OP No.1 at the time of purchasing the mobile and that mobile under the insurance period but the OP No.4 neglected/refused the said claim without any reason. The complainant pointed out the OP No.1, 3, 4 and 5 regarding the warranty period and insurance and requested either to change the mobile and to repair it and get the insurance claim or refund the amount Rs.12,000/- and insurance amount of Rs.1200/- but the OP fails to accede to the request of the complainant and the said mobile is lying idle/useless at the residence of the complainant in spite of spending lots of amount and as such there is a deficiency in service, unfair trade practice on behalf of the OPs and accordingly the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to change the mobile with a new one or to refund the cost of the mobile to the complainant and further be directed to pay a compensation for harassment and mental tension suffered to the complainant, to the tune of Rs.50,000/- and also be directed to pay Rs.10,000/- being the losses suffered due to visits to the OP's workshop and other expenses and also be directed to pay litigation expenses to the tune of Rs.10,000/-.

3. Notice of the complaint was given to the opposite parties but despite service OP No.1, 3, 4 and 5 did not come present and ultimately they were proceeded against exparte, whereas OP No.2 appeared through his counsel and filed reply, whereby contested the complaint by taking preliminary objections that the present complaint is bad for mis-joinder of parties, answering respondent has been unnecessarily impleaded as party to the present complaint because there is no inherent defect in the handset. The handset in question has been physically damaged i.e. touch/display screen of the handset has broken by falling on road due to negligence on the part of complainant as admitted in complaint. Even the handset in question has been badly mishandled by the complainant and as such the present complaint is liable to be dismissed for concealment of true facts. On merits, the purchase of the mobile handset by the complainant is not denied but remaining allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and same may be dismissed.

4. In order to prove his case, complainant himself tendered into evidence his own affidavit Ex.CA alongwith documents Ex.C1 to Ex.C5 and then closed the evidence.

5. Similarly, counsel for OP No.2 tendered into evidence affidavit Ex.OP/1 alongwith some documents Mark OP-2 and Mark OP-3 and closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. After taking into consideration the entire facts as elaborated in the complaint as well as reply, we find that the purchase of the mobile handset of Samsung model from OP No.1, for an amount of Rs.12,200/- is not in dispute because the complainant has brought on the file invoice/bill Ex.C2 and it is also admitted that the complainant approached the service centre of OP No.2 and copy of the job sheet issued by service centre is Ex.C4, wherein categorically mentioned that the product is out of warranty because touch screen damages and further complainant alleged that he got insurance from OP No.1 by making a payment of Rs.1200/- as a premium and its receipt is Ex.C1 and insurance policy is Ex.C3.

8. First of all, we have to consider the liability of manufacturing firm and the dealer, it is admitted by the complainant in his own complaint that the mobile phone was fell down on the road, near Jyoti Chowk and phone touch screen was damaged and stopped to work. Whenever any part of the product is damaged due to negligence then the customer cannot claim the benefit of the warranty period because warranty is not for damages caused by the purchaser himself or due to natural activity and by adopting this observation, the service centre accepted the mobile phone and calculated the cost of the screen of Rs.2900/-, but the complainant was not ready to get change touch damaged screen on payment basis and mobile set was returned to him. So, ultimately, we came to conclusion that the touch screen of the mobile phone was damaged due to fall on the road side and therefore, the said damage cannot be considered in warranty and therefore, we find there is no liability of the dealer as well as service centre and manufacturing company.

9. No doubt, if the mobile phone is insured with the insurance company of OP No.4 and 5, then this type of damage is covered under the insurance policy but in this case, the complainant alleged that he paid a premium of Rs.1200/- vide receipt Ex.C1 to OP No.1 but if we go through the said receipt Ex.C1 then it is clear that the said receipt is for some spare parts of the software. So, it means that the receipt Ex.C1 is not for payment of premium of insurance policy, if so then, the complainant has not got insured his mobile set with any insurance company. Further the complainant alleged that Ex.C3 is insurance policy but virtually it is a packing cover of the mobile set. There on nothing is mentioned for what period the insurance is issued and it does not bear the signature of any authorized person of the insurance company nor any other particular of the mobile set is mentioned thereon. So, it means, a box for packing of the mobile cannot be construed as an insurance policy. So, with these observations, we find that the complainant also could not able to prove that he got insurance policy of the mobile set in question, if so then, the complainant is not entitled for any relief as claimed in the complaint rather the complainant is at liberty to get repair the said mobile set from service centre on payment basis and accordingly the instant complaint being without merit is hereby dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

26.07.2017 Member President