BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.36 of 2016
Date of Instt. 18.01.2016
Date of Decision :22.11.2016
Vinod Bhambri aged 30 years son of Shri Rakesh Kumar Bhambri resident of 53/54, Bhai Dit Singh Nagar, Jalandhar City, Punjab. (Mobile No. 9417152699).
..........Complainant
Versus
M/s Apps Daily, H.C.O. 247374, 2nd Floor, Sector 22-C, Chandigarh.
M/s Canam Plaza, H.C.O. 45, Sector 11, Basement Cabin 219, Panchkula, Haryana.
M/s Chadha Mobile House Pvt. Ltd.. Phagwara Gate, Near Bhagat Singh Chowk, Jalandhar, Punjab.
Visionway Communication, Jabble Tower, Besides Grand Mall, BMC Chowk, Jalandhar.
M/s New India Assurance Co. Ltd., 2-B, Unity Building Annexe, Missioni Road, Bangalore-560027, Karnatka.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh.Parminder Sharma (Member)
Present: Complainant in person.
Opposite party No. 1,2 and 3 exparte.
Sh.Vishal Chaudhary Adv., counsel for OP No.4.
Sh. B.P. Singh Adv., counsel for OP No.5.
Order
Karnail Singh (President)
1. The instant complaint filed by complainant, wherein alleged that the complainant has purchased one XOLO Mobile Q10101 having EMIE No. 911363601805930 from opposite party No.3 M/s Chadha Mobile House Pvt. Ltd., Phagwara Gate, Near Bhagat Singh Chowk, Jalandhar, Punjab on 27/8/2014 against cash memo No. 28276 for Rs. 10,700/-. The said mobile was insured by the seller M/s Mobile House, Pvt. Ltd., Jalandhar with M/s Apps Daily, H.C.O. 247374, 2nd Floor, Sector 22-C, Chandigarh (OP No.1) against invoice No. 28282 dated 27/8/2014 for Rs. 900/- The New India Assurance Co. Ltd., is insurance partner of M/s Apps Daily that is why cover note of New India Assurance Co. Ltd. is issued by the opposite party No.4 Visionway Communication. The insurance of mobile was covering theft, burglary, physical damage including fluid damage, back up of contacts, SMS schedule, task manager etc. all risks of handset were covered in the insurance.
2. That the damage was caused to the above said handset on 20/8/2015 and the complainant immediately contacted the opposite party No.3 M/s Mobile House for the repair of his handset. The opposite party No.3 lodged its complaint online on his computer for repair of his handset and directed the complainant to deposit his handset with Visionway Communication, Jabble Tower, besides Grand Mall, BMC Chowk, Jalandhar against intimation No. AD-D210815-2708476 and its receipt was issued on Form IC (Mobile Handset Insurance Claim Form- Appsdaily) and the acknowledgment was given by the concerned employee to the complainant on 24/8/2014. The complainant repeatedly visited the office of Visionway Communication, Jabble Tower, besides Grand Mall, BMC Chowk, Jalandhar and lastly a phone No. 9569659191 was given to me by them with the directions to contact Appsdaily, Chandigarh to enquire about my mobile number because their responsibility is restricted only to collect handsets and send to the Appsdaily only. Following the directions of Visionway Communication, Jabble Tower, besides Grand Mall, BMC Chowk, Jalandhar, I contacted the Appsdaily over phone No. 9569659191 number of times but all the times the matter was prevaricated on one and the other pretext but my mobile handset was not repaired. The opposite parties No. 1 to 4 kept me busy to approach one and the other office. After about 3 months, Appsdaily sent me one handset with broken body which I refused to receive and the same was sent back to the company. Then it was assured that the handset will be sent/ given to me within 7 days but I did not receive any handset for about one and half months. Lastly one mobile contact No. 0172-4014646 was given to me by Appsdaily to directly approach Xolo service centre for repair of my handset but no heed was paid to my repeated requests and further prayed to kindly look into the matter and above said parties may be summoned and then may please be directed to give full value of mobile handset, insurance expenses and compensation for Rs. 1,00,000/- on account of mental and physical harassment and Rs. 10,000/- for legal expenses.
3. Notice of the complaint was given to opposite parties but opposite party No. 1 to 3 did not appear in-spite of service and as such they were proceeded against exparte whereas OP No.4 appeared through counsel and filed written statement and contested the complaint by taking preliminary objections that the complaint under reply is not maintainable against the answering opposite party and further alleged that there is no cause of action arose against the above said answering opposite party and further alleged that the complainant suppressed the material facts from this Forum and has not come to the Forum with clean hands as such the complaint under reply is liable to be dismissed at this very score against answering opposite party and further alleged that the complainant is barred to file the present complaint because of his own act and conduct. Hence no relief can be granted to the complainant as prayed for against answering opposite parties. The brief facts are that the complainant/ customer just to harass the answering opposite party filed the present complaint rather the answering opposite party has no concern with the mobile handset company Xolo. The answering opposite party is the authorized service centre of mobiles made by Microsoft/ Nokia and having no concern with the Xolo. It is also necessary to mention here that the Xolo company has its own service centre in Jalandhar and the customer has booked or deposited his handset in that service centre and only on this ground, the present complaint may kindly be dismissed against the answering opposite party. On merits, all the averments made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
4. OP No.5 filed its separate written reply and contested the complaint by taking preliminary objections that since the present complaint is not maintainable against the answering opposite party as the opposite party has already settled the claim as per the terms and conditions of the policy, filed by the complainant with the opposite party and has paid the amount of Rs. 3640/- to the complainant, vide claim intimation No. AD-D210815-2708476 transaction reference UTR No. KKBKH15308398793 on 5/11/2015, as such the present complaint is liable to be dismissed with costs against the answering opposite party. That since there is no deficiency in service or unfair trade practice on the part of the opposite party and the present complaint has been filed on the basis of wrong and incorrect facts only to harass the opposite party. Hence the answering opposite party is not liable to pay compensation or amount as alleged in the present complaint, as such the same is liable to be dismissed and further alleged that the complainant has not come to forum with clean hands and has concealed the material and true facts from this forum and tried to get the amount/ compensation from the opposite party by way of fraud and misrepresentation of the facts by filing the present complaint, as such the complaint is liable to be dismissed and further alleged that no cause of action ever accrued tot he complainant to file the present complaint against the opposite party No.5 and as such, the complaint is liable to be dismissed. On merits, all the averments made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
5. In order to prove his case, complainant tendered into evidence his duly sworn affidavit Ex.CA alongwith documents Ex. C1 to Ex. C3 and then closed the evidence.
6. In order to rebut the evidence of the complainant, counsel for opposite party No.4 tendered into evidence affidavit of Dhiraj Gandhi Ex. OPW4/A and closed the evidence. Similarly the counsel for opposite party No.5 also tendered into evidence affidavit of Poonam Sharma, Deputy Manager of New India Assurance Co. Ltd. Ex. R-1 alongwith documents Ex. R-2 to Ex. R-7 and then closed the evidence on behalf of opposite party No.5.
7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
8. After considering the overall factors as elaborated in the respective evidence of the parties and find that the complainant has established that he has purchased one Xolo Mobile Q10101 having IMEI No. 911363601805930 from opposite party No.3 M/s Chadha Mobile House Pvt. Ltd., Phagwara Gate, Near Bhagat Singh Chowk, Jalandhar vide invoice Ex. C1 and it was got insured after making a payment of premium of Rs. 900/- vide receipt Ex. C2 and also proved the insurance claim Ex. C3. In order to reiterated the facts elaborate in the complaint, the complainant also proved on the file his affidavit Ex. CA.
9. The main contention of the complainant is that the damages was caused to the mobile handset on 20/8/2015 and accordingly, he contacted opposite party No.3 for repair of the handset and opposite party No.3 directed the complainant to deposit his handset with opposite party No.4 Visionway Communication Jabble Tower, Besides Grand Mall, BMC Chowk, Jalandhar and accordingly, he deposited mobile handset for repair but till today, he has not received his mobile handset and even insurance claim of the complainant is also not settled by the opposite party No.5.
10. We think that the plea taken by opposite party No.4 Visionway Communication in his reply that the Visionway is not the authorized service centre of Xolo Mobile rather the Visionway opposite party No.4 is the authorized service centre of mobiles made by Microsoft/ Nokia and as such the question does not arise to deposit the mobile in the centre of OP No.4 by the complainant. We think that it is the duty of the complainant to bring on the file any receipt/ job sheet whereby he deposited his mobile set with the opposite party No.4 Visionway Communication but no such receipt/ job sheet has been brought on the file by the complainant and it is not prove on the file that complainant miserably fails to establish on the file that he has ever deposited his damaged mobile set with opposite party No.4 if so then complainant has no right to claim the return of the mobile set from the opposite parties.
11. Moreover as per the version of the complainant himself in para No. 3 of the complaint that the damages were caused to the mobile set on 20/8/2015 and when damages is caused due to fall or other way then the same is not covered under the guarantee and as such, the complainant is not entitled to claim the value of the mobile handset from the opposite party No.3. So far the concern of insurance claim is related the complainant as admittedly concealed the factum that he has already received the claim amount from opposite party No.5 which has been established by opposite party No.5 by bringing on the file documents Ex. R3 whereby the claim pertaining to complainant Vinod Bhambri was settled of Rs. 3640/- on 5/11/2015 and the said amount was credited in the account of the complainant as reference given in documents Ex. R4 i.e. Account No. KKBKH15308398793 on 5/11/2015 but this factum has been concealed by the complainant himself and therefore he is not entitled for any relief.
12. In view of above detailed discussion, we do not find any force in the argument of the complainant and therefore the complaint is dismissed. Complaint could not be decided within stipulated time frame due to rush of work.
13. 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
22.11.2016 Member President
