Date of filing : 14.03.2018

                                                               Date of Disposal:12.01.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 12^th DAY OF JANUARY, 2023

CONSUMER COMPLAINT NO.424/2018

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Vinod G.Verghese,

S/o Late Maj Gen J.Verghese,

Aged about 57 years,

Residing at 37/2, Ulsoor Road,

Yellappachetty Layout,

Bangalore-560 042.……COMPLAINANT

Rep by Smt.Annapoorna S, Advocate

M/s Apple India Private Limited,

UB City, No.24,

Vittal Mallya Road,

Bangalore-560 001, India,

Rep by its Managing Director.……     OPPOSITE PARTY-1

Rep by Sri.Rawley Muddappa I.P, advocate

M/s Ample Technologies Private Limited,

Bangalore-560 064,

Rep by its Managing Director.……     OPPOSITE PARTY-2

Rep by Sri.Josita Juris, Advocate

M/s Edelweiss Insurance Brokers Limited,

Unit No.1201/1202, 12^th Floor,

‘C’ Wing, Godrej Coliseum,

Everard Nagar, Chunabhatti,

Mumbai-400 022.

Also at Unit No.102,

230, Nariman Point,

Mumbai-400 021,

Rep by its Managing Director.……     OPPOSITE PARTY-3

In-person

National Insurance Company Limited,

Rep by its Authorized Signatory,

Sir PM Road, Fort, Mumbai,

Also at:

Head Office: 3, Middleton Street,

Prafulla Chandra Sen Sarani,

West Bengal-700 071.……     OPPOSITE PARTY-4

Rep by Sri.K.Nagaraja, advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-11 of Consumer Protection Act, 1986 seeking for a direction to the opposite parties severally and cumulatively to pay a sum of Rs.22,700/- towards the amount paid by the complainant for the purchase of the I-Phone SE32GB.

2. Even though the opposite party no.1 is represented by his counsel, he did not file version and contested the case.  Even though the opposite party no.2 and 4 were represented by their counsels, they did not file version and adduced evidence to rebut the claim of the complainant.  The opposite party no.1 is the manufacturer of the product and opposite party no.2 is its dealer, the opposite party no.3 is the insurance broker and opposite party no.4 is the insurance company.  It is not in dispute that the complainant had paid the premium for insurance to opposite party no.4 through opposite party no.3.

3. It is the further case of the complainant that the complainant had purchased new I-Phone stated above on 13^th August, 2017 from opposite party no.2 at their imagine store.  Further, the complainant was advised to buy the insurance since it was at a special offer and it covered all aspects of damage including water damage.  Hence, the complainant had purchased the insurance offered by opposite party no.3.  Further, on 17.11.2017 the said I-Phone went into ‘Network Search Mode’ i.e., the phone was functional barring the network availability.  Hence, on 19.11.2017 he visited the                I-Care Service Centre, i.e., opposite party no.2 to have the phone checked and the complainant had left the said phone at there.  Further, on 20.11.2017 the opposite party no.2 sent an email to the complainant on his daughter’s email id, that ‘water marks’ were found near the battery connector and there was a network issue with the device and that the internal condition was checked and it was found that LCIs are triggered and liquid marks near the battery connector.  It also stated that the                I-Phone had to be replaced under the exchange price of Rs.24,059/-.  The complainant informed the opposite parties immediately that this was either a manufacturing defect or damage caused at the opposite party no.2 centre since the complainant had taken all reasonable care to ensure that no such water damage could occur.    Further, even though the complainant attempted to reach out to the opposite party no.3, he was unable to reach. Further, to the surprise of the complainant, the opposite party no.1 and 2 had informed the complainant that the I-Phone could not be covered by the company warranty, but was covered under the insurance secured by him at the time of purchase of the phone.  On 20.11.2017 the complainant had applied for the insurance online and all additional document sought for were also handed over by 22.11.2017.  Further, on 23.11.2017 the complainant on checking the website for insurance claim status, it was found that as the damage to the gadget was due to mysterious circumstances/unexplained reasons, the subject claim was rejected.  Hence, the complaint came to be filed.

4. It is the further contention of the opposite party no.3 that the complaint is bad for misjoinder of proper and necessary party.  The complainant is not a ‘Consumer’ as contemplated under Section-2(d) of Consumer Protection Act, 1986.  Further, the role of opposite party no.3 being an insurance broker was only to facilitate the settlement of claims of customers of opposite party no.2.  Further, opposite party no.3 had provided the services to the complainant free of charge and as such the complainant cannot be a ‘Consumer’.  Further, no consideration has been paid to opposite party no.3.  Hence, it is sought to dismiss the complaint against opposite party no.3. 

5. To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P1 to P12 documents.  The Country Legal Counsel of opposite party No.1 has filed affidavit in the form of his evidence in chief.

6. Counsels for the complainant and opposite party no.1 have filed written arguments.

7. Heard the counsels for complainant and opposite party no.1.

         8. The points that would arise for consideration are as under:

i) Whether the complainant proves the deficiency of service on the part of the opposite parties ?

    ii) Whether the complainant is entitled for the 

    compensation as sought ?

     iii) What order ?

   9.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

10.POINT NO.1:- The complainant(PW1) and Country Legal Counsel of opposite party No.1 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  The opposite party no.1 has filed version in the form of his evidence in chief and on 27.11.2019 had filed a memo to consider the said version as his evidence in chief.  The learned counsel for the complainant has opposed the said memo and contended that the same cannot be taken as his evidence.  Section-13(4) of Consumer Protection Act, 1986 contemplates that the district forum shall have the same powers as are vested in a civil court under Code of Civil Procedure.  As per the procedure the evidence shall be tendered by entering into wittiness box.   In the case on hand, the opposite party no.1 did not follow the said procedure to give evidence by entering into the witness box.  Further, Section-13 (1)(a) of Consumer Protection Act, 1986 contemplates that the version shall be filed within the period of 45 days.  Thereafter, the evidence of the parties begins.  Hence, the version filed cannot be taken as evidence of the parties without tendering the evidence in the form of affidavit by entering into the witness box.  Hence, there is no merit in the memo filed by the counsel for the opposite party no.1 and the same is rejected. 

11. There is no dispute with regard to the purchase of subject I-Phone by the complainant on 13.08.2017 and the warranty is for a period of 1 year.  It is the contention of the learned counsel for the opposite party no.3 that the complaint is bad for mis-joinder of necessary party.  Since, the complainant has availed of insurance from National Insurance Company Limited, the said contention was taken in the version filed on 21.04.2018.  Subsequently, the complainant got impleaded the National Insurance Company Limited from whom the complainant got insured to the product by the order of this commission dt.06.04.2022.  Hence, the said contention taken by the opposite party no.3 has become infructuous.

12. The other contention taken by the learned counsel for the opposite party no.3 that the complainant is not a ‘Consumer’ as contemplated under Sectioin-2(d) of Consumer Protection Act, 1986.  Since, no price has been paid by the opposite party no.3, the opposite party no.3 is an insurance broker.  Whether the complainant is a ‘Consumer’ or not is to be examined by verifying the entire contents of the complaint.  Admittedly, the complainant has paid the price of the product to opposite party  no.1 and 2 and simultaneously the complainant has also paid insurance premium to opposite party no.4.  Further, EX.P2 copy of the insurance certificate produced by the complainant indicates that the insurance certificate was issued by opposite party no.4.  Hence, there is no merit in the contention of the learned counsel for the opposite party no.3 that the complainant is not a ‘Consumer’.

13.  It is also contended by the learned counsel for the opposite party no.3 that as it was IRDA regulatory, the opposite party no.3 has provided services to the complainant herein free of charge and as such the complainant cannot be said to be a ‘Consumer’ of opposite party no.3.  The opposite party no.3 is none other than the agent of opposite party no.4.  Since, the opposite party no.3 has offered to purchase the insurance from opposite party no.4 and has said by the complainant that prior to the purchase of the insurance on all the terms and conditions and the insurance was being sold at a discounted rate, even the money price of the product shall not directly paid.  Since, the opposite party no.3 being the agent of opposite party no.4 and the opposite party no.4 had received the premium amount, it cannot be said that the complainant is not a ‘Consumer’ of opposite party no.3.  Hence, there is no merit in the said contention. 

14. Further, it is contended by the learned counsel for the opposite party no.3 that since opposite party no.3 had complied all his formalities in obtaining the insurance policy, the complaint is not maintainable against opposite party no.3.  We feel since the opposite party no.3 is an insurance broker and through opposite party no.3 only the complainant has purchased the insurance policy from opposite party no.4, any act of the agent binds the principal as per Contract Act.  Hence, there is no merit in the contention that the opposite party no.3 is not liable for any deficiency in service on the part of the opposite party no.4. 

15. It is the contention of the learned counsel for the opposite party no.1 that there was a liquid damage to the I-Phone and the same has not been covered under warranty and I-phone has suffered liquid damage due to the negligence of the complainant.   Further, the complainant approached service centre of opposite party no.1 and it was informed to the complainant through e-mail of the complainant that he “Checked the unit/device it was found that the internal condition of the product found LCIs are triggered and liquid marks near the battery connector.  Further, the service centre of opposite party no.1 had issued an email vide EX.P6 to the complainant stating that the product has to be replaced under exchange price.  EX.P8 is the email given by the service centre of opposite party no.1 stating about the problem found in the device.  EX.P11 is the details of repair under taken on the device issued by the service centre of opposite party no.1.  The complainant did not produce any material to substantiate that the liquid spillage found was a manufacturing defect.  Further, no document been produced by the complainant that the warranty covers the problem found in the product.  Hence, it cannot be said that the product had manufacturing defect.

16. The complainant claims refund of the price paid for the product from opposite party no.1 to 4.  Admittedly, the product has been insured with opposite party no.4.  EX.P5 is the claim form for the insurance amount, in which it is mentioned by the complainant that the liquid damage.  The claim was submitted on 20.11.2017 and the policy was purchased on 13.08.2017 and coverage has been started the said date onwards as it appears in the claim form. It is stated in EX.P11 issued by            I-Care Support Team that they had processed the same after the repair could not get covered under warranty, insurance coverage got declined due to reason “the subject claim is not admissible due to loss or damage to the gadget due to mysterious circumstances/unexplained reasons”.  Hence, they regret to inform that the refund is not applicable.  On perusal of the EX.P2 insurance certificate it could be seen that as per the terms and conditions liquid/water spillage on the insured product also covered the risk.  The complainant got issued notice to opposite party no.2 vide EX.P10 with a request of the personal intervention of opposite party no.2 with regard to the refund of the insurance claim.  It appears that as per instruction I-Care Support Team had issued reply rejecting the claim of the complainant with regard to the refund of the insurance claim.  Hence, we feel there is deficiency of service on the part of the opposite party no.3 & 4.  Since the opposite party no.3 being the insurance broker has also do duty in discharging the claim of the complainant.  Accordingly, we answer this point in affirmative.

17.POINT No.2:- The complainant claimed direction to the opposite parties to pay a sum of Rs.22,700/- towards the amount paid by the complainant for the purchase of the subject product.  In the case on hand, we feel the opposite party no.3 and 4 are liable to discharge the claim of the complainant.   On perusal of EX.P2 insurance certificate, it appears that sum assured was of Rs.22,750/-.   Further, as per depreciation it is stated in the certificate that the liability of the company shall in no case exceed the sum insured subject to the following as per the age of the product/device up to 90 days 10%.  In the case on hand, the product was purchased on 13.08.2017 and on 17.11.2017 problem has occurred in the product.  Therefore, the problem occurred beyond 90 days.  Therefore, the depreciation shall be if it was 91 to 180 days 15%.  Further, 1% of the claim amount subject to minimum of Rs.500/- shall be deducted towards salvage.  Since, the product price was of Rs.24,551/- as appears in EX.P1 the salvage shall be Rs.500/-.  Hence, after deducting the 10% of the assured amount of Rs.22,750/- and a sum of Rs.500/- towards salvage, in total the net comes to (22,750 - 2,775) = Rs.19,975/-.  The complainant is entitled for the said amount from opposite party no.3 & 4.  Further, the complainant claimed a sum of Rs.56,300/- towards cost incurred to purchase another phone due to the failure of the opposite parties to pay the insurance/replace the I-Phone.  Since the complainant has purchased new phone and as it is not established under which context the complainant is entitled for the amount of the purchase of new phone, we feel the complainant is not entitled for the said amount. 

18. Further, the complainant claimed a sum of Rs.2,00,000/- towards harassment, mental agony, trauma, pain and suffering caused to the complainant on account of the deficiency of service rendered by the opposite party.   According to PW1, since the claim made by the opposite party with respect to the alleged water marks was impossible, immediately the same has been brought to the notice of the opposite parties through their customer care phone numbers and the complainant had taken all reasonable care to ensure that no such water damage could occur.  Further, the complainant attempted to reach out to the opposite party no.3, but there was no response.    Further, the phone numbers provided on the insurance did not work and therefore, the complainant was unable to reach over phone and the attempt made with opposite party no.1 & 2 has no avail.  Further, without any reason opposite party no.4 has rejected the claim of the complainant and he had wandered from pillar to post to get the phone repaired but it did not get any fruitful result.  Hence, he has suffered untold misery, agony and suffering on account of opposite parties and by their sheer in acts has driven the complainant to despair and as he had no other option, constrained to approach this commission.  We feel there is truth in the say of the complainant.  Hence, the complainant is entitled for a sum of Rs.10,000/- towards mental agony.  Further, the complainant claims a sum of Rs.2,00,000/- towards defective I-Phone sold to the complainant.  We feel it cannot be said that the product was a defective one and opposite party no.1 had knowledge with regard to the liquid marks near the battery connector.  Hence, the complainant is not entitled for the said claim. 

19. Further, the complainant claims a sum of Rs.1,00,000/-  towards the unnecessary rejection of the insurance even though the conditions were covered.  Since the problem in the product has been covered in the insurance certificate issued by opposite party no.4 through opposite party no.3, opposite party no.3 & 4 should have reimbursed the claim in accordance with law that has not been done.  Further, the opposite party No.3 & 4 made the complainant to approach this commission.  Hence, in all the complainant is entitled for a sum of Rs.5,000/- under this head.   Since, the opposite party  no.4 instead of reimbursing the claim immediately has repudiated the claim and it was informed to the complainant through email vide EX.P11 dt.15.01.2018 from the said date the complainant is entitled for interest at the rate of 9% p.a. on the above said amount of Rs.19,975/- till realization. Accordingly, we answer this point partly in affirmative.

20.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite party no.3 & 4 are directed to pay a sum of Rs.19,975/- with interest at the rate of 9% p.a. from 15.01.2018 till realization and a sum of Rs.10,000/- towards mental agony caused and a sum of Rs.5,000/- towards damage for unnecessary rejection of the claim and towards litigation cost. 

The opposite party No.3 & 4 shall comply the order within 30 days. In case, the opposite party No.3 & 4 fail to comply the order within the said period, the above said amount of Rs.15,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 12^th day of January, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

Witness examined for the complainants side:

Sri.Vinod G.Verghese, the complainant has filed her affidavit.

Documents marked for the complainant side:

1. The tax invoice dt.13.08.2017 issued by the opposite party no.2 in favour of complainant for a sum of Rs.24,551/- for having purchased the mobile.
2. The insurance certificate.
3. Email communications.
4. Insurance claim form.
5. Email communication.
6. The discharge voucher.
7. The document showing the rejection of the complainant claim which is the printout taken out from the official website of the opposite party no.3.
8. Copies of the letters dt.20.12.017 and 11.01.2018 i.e., document No.7 and 8 written by the complainant to Mr.Rajesh Naran opposite party no.2 CEO.
9. The document No.9 reply sent by I Care Support Team dt.15.01.2018.
10. Certificate under Section-65B of Indian Evidence Act.

Witness examined for the opposite party side: 

Sri.Priyesh Poovanna, Country Legal Counsel of opposite party No.1 has filed his affidavit.

Documents marked for the Opposite Party side:

1. Copy of each of the correspondence/communications
2. Copy of the extracts of Board Resolution authorizing him.
3. The applicable warranty provisions/terms.
4. The printout of the email dt.20.11.2017.
5. Copies of the emails.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•