BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.22 of 2016

Date of Instt. 11.01.2016

Date of Decision: 04.07.2017

Harmeet Kumar S/o Sh. Dalbir Singh, age about 39 years old, R/o A-156, New Dashmesh Nagar, near New Model House, Jalandhar.

..........Complainant

Versus

1. Mobile House, EK-23/1, Old Division No.3 Market, Phagwara Gate, Near Bhagat Singh Chowk, Jalandhar.

2. Micromax India, Micromax House, 697, Udyog Vihar, Phase-V, Gurgaon, Pincode:122022, Haryana.

3. Micromax Service Centre, Gopal Telecom, near Namdev Chowk, Jalandhar.

4. The New India Assurance Co. Ltd, Divisional Office, Opp. Bus Stand, Jalandhar.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. Neeraj Thakur, Adv Counsel for complainant.

OP No.1, 2 and 3 exparte.

Sh. AK Arora, Adv Counsel for OP No.4.

Order

Karnail Singh (President)

1. This complaint presented by complainant, wherein stated that the complainant is consumer under the Consumer Protection Act and he is competent to file the present complaint against the OPs. The complainant has purchased a mobile model as Micromax Mobile A350 and its IMEI No.911357701066625 from OP No.1 vide Cash Memo No.10205 on 11.01.2015. The OP No.1 allured the complainant to get the said mobile insured with a meager amount of Rs.1549/- for one year insurance which will cover all kind of losses such, theft, accidentally broken etc. As allured the complainant, agreed to the proposal of OP No.1 and paid Rs.1549/- in cash and accordingly the OP No.1 delivered a booklet containing the various terms and conditions of the insurance policy duly stamped on behalf of the OP No.4.

2. That the warranty of the said mobile was also one year from the date of bill for any defect/trouble. After three-four days the complainant found that this handset is creating problems and not working properly and got heat up from screen and battery getting low even after one hour of its full charge and complainant approached OP No.3, who is authorized service station of OP No.2 and rectified the defect immediately and assured the complainant that the said mobile will function properly but later again utter surprise of the complainant the said defect remained continue. The complainant's visits to the OP No.1 to 3 number of times and ultimately in the month of August 2015, the OP No.3 kept the mobile and advised the complainant to visit after three or four days for collecting his mobile phone. The complainant visited after one week to the OP No.3 and OP delivered the mobile phone stating that now all the defects has been removed as well as the screen of the mobile has been changed. The complainant immediately pointed out the OP No.3, the screen of the mobile phone is not giving the clear picture and it seems that the screen has not been changed. That the complainant visited OP No.1 and requested to get the screen of the mobile changed as the mobile is under warranty period and as well as you got insured the said mobile through OP No.4 by charging Rs.1549/-. The OP No.1 contacted the OP no.3 in the presence of the complainant and OP No.1 advised to visit the OP No.3 for further proceedings. As he discussed the matter with OP No.3 and visited the service centre for getting the mobile repaired. The OP No.3 pointed out that there is a manufacturing defect in the mobile and sent back the complainant to the OP No.2 for change or asked him to spend Rs.9000/- for getting the necessary removal of the defects. Further complainant pointed out the OP No.1 and 3 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 of Rs.14,500/- and insurance amount Rs.1549/- but the OP fails to accedes 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. Due to the above said facts, the complainant suffered mental tension, harassment and financial loss to the tune of Rs.50,000/- and as such the present complaint filed with the prayer that the OP be directed to change the mobile with a new one or to refund the cost of the mobile to the complainant and further OP be directed to pay compensation of Rs.50,000/- for mental tension suffered by the complainant and also directed to pay litigation expenses of Rs.10,000/- being the losses suffered due to visits to the OPs.

3. Notice of the complaint was given to opposite parties but despite service, opposite party No.1 to 3 did not come present and ultimately, they were proceeded against exparte whereas OP No.4 appeared and filed written reply and contested the complaint by taking preliminary objections that the complainant is not the consumer of OP No.4. OP No.4 through its Divisional office Jalandhar has been unnecessarily made party to the present complaint. The Divisional Office-1 at Jalandhar of the OP has not issued any policy of insurance in favour of the complainant in respect of mobile set in question nor the OP No.4 has authorized OP No.1 to issue policy of insurance on behalf of OP No.4. The OP No.4 has moved an application for supplying the particulars of insurance in respect of the mobile handset of the complainant, in reply to the said application the complainant has stated that OP No.4 has been impleaded in the complaint being necessary party and the complainant has no knowledge in respect of the insurance policy in question and only OP No.1 can reveal regarding the insurance policy in question in respect of the mobile handset. The answering OP has not been able to lay its hands on the alleged insurance policy issued by the answering OP in favour of OP No.1 with a authority to insure the mobile handset of the complainant. In view of the facts explained above, the complaint filed by the complainant against the answering OP is liable to be dismissed. On merits, all the averments as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove his claim, counsel for the complainant tendered into evidence affidavit of complainant Ex.CW1/A alongwith documents Ex. C1 to Ex.C3 and closed the evidence.

5. Counsel for the OP No.4 tendered into evidence affidavit Ex.OP4/A 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. Before taking the complaint of the complainant on merit, first of all we like to discus the role of the OP No.4, who is an Insurance Company, as per version of the complainant that he has purchased a mobile phone from OP No.1 vide invoice Ex.C1 dated 11.01.2015 and at that time, the said mobile was also insured by the OP No.1 by issuing an Insurance Card Ex.C2 and obtained the premium of Rs.1549/- from the complainant but when OP No.4 i.e. The New India Assurance Co. Ltd appeared and filed a reply, whereby categorically denied that they never issued any insurance policy in regard to mobile set, purchased by the complainant from OP No.1 and also filed an application, if any insurance has been obtained by the complainant of the The New India Assurance Co. Ltd then he may provide the particular of that insurance policy but the complainant failed to provide the particular of the insurance policy and as such it is proved on the file that there is no role of the OP No.4 because they never issued the insurance policy because the complainant could not able to bring on the file any proposal form or insurance policy rather simply brought an Insurance Card which has not been issued by the Insurance Company rather the same had been issued by OP No.1 itself. So, accordingly the complaint of the complainant against OP No.4 is dismissed.

8. So for the question of the claim of the complainant in regard to the liability of OP No.1 to 3 is concerned, admittedly the complainant has purchased a mobile set for a sum of Rs.14,500/- from OP No.1 and OP No.2 is Manufacturing Firm and OP No.3 is Service Centre. In order to establish that there is a defect in the mobile, the complainant has brought on the file Job Sheet Ex.C3 but in order to rebut the version of the complainant, the OP No.1 to 3 itself not appeared in the Forum, for the best known reason. So, under this situation, the claim of the complainant remains un-rebutted and un-challenged, if so then, the complainant is entitled for the relief claimed.

9. In the light of above discussion, the complaint of the complainant is partly accepted and opposite parties No.1 to 3 are directed to refund the price of the mobile set i.e. Rs.14,500/- to the complainant with interest @ 9% per annum from the date of purchase i.e. 11.01.2015 till realization and further OP No.1 to 3 are directed to pay compensation of Rs.5000/- for harassment to the complainant and also directed to pay the litigation expenses of Rs.2000/-. The entire compliance of the order be made within 30 days from the date of receiving copy of order. 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

04.07.2017 Member President