Punjab

Faridkot

CC/17/314

Randeep Singh - Complainant(s)

Versus

M/s Bansal Enterprises - Opp.Party(s)

Atul Gupta

11 Sep 2019

ORDER

        DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

C.C. No. :                        314 of 2017

Date of Institution :          20.09.2017

Date of Decision :           11.09.2019

Randeep Singh aged about 20 years son of Naib Singh r/o Village Gumti Khurd, Bathinda Road, Jaitu, Tehsil Jaitu, District Faridkot through his father Naib Singh aged about 46 years son of Mukhtiar Singh r/o Village Gumti Khurd, Bathinda Road, Jaitu, Tehsil Jaitu, District Faridkot.

   .....Complainant

Versus

1. M/s Bansal Enterprises, through its Proprietor/Manager/Partner, Opposite Bus Stand, Jaitu, Tehsil Jaitu District Faridkot.
2. Apps Daily Solutions Pvt Limited, 6^th Floor, C Wing,  Oberai Garden Estates, Chandivali, Andheri, (E) Mumbai-400072.
3. Samsung Customer Care, Kotkapura, Opposite Auto Aids, Faridkot Road, Kotkapura, Tehsil Kotkapura, District Faridkot.

              ....Opposite Parties

Complaint under Section 12 of the

                    Consumer Protection Act, 1986.

Quorum:      Sh. Ajit Aggarwal, President.

 Smt Parampal Kaur, Member.

 

Present:        Sh Amit Mittal, Ld Counsel for complainant,

                    Sh Neeraj Maheshwary, Ld Counsel for OP-1,

                    OP-2 & 3 Exparte.

 

ORDER

(Ajit Aggarwal , President)

 

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                                                        Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to return the mobile hand set or to pay Rs.62,000/-and for also directing Ops to pay Rs.20,000/- as compensation for mental agony and harassment etc and Rs.10,000/-as litigation expenses.

2                                          Briefly stated, the case of the complainant is that complainant purchased a mobile phone make Samsung G-935, from OP-1 vide bill no. 5007 dt 18.03.2016 worth Rs.57,000/-. In February, 2017, display of said mobile broke and complainant approached OP-1, who said that its display is non repairable and needs to be changed and also demanded Rs.4,999/-for change of display. Complainant handed over his mobile to OP-1 and paid Rs.4,999/-for the purpose of changing display and in turn OP-1 issued proforma invoice dated 21.02.2017 and assured to change the display within 15 days and sent the said mobile to OP-2. After 15 days, complainant approached OP-1 for taking back his mobile phone, but OP-1 asked him to come after a week and then again when he went to OP-1 after a week, Op-1 further sought 15 days for change of display, but this time again, when complainant approached OP-1 to collect his mobile, OP-1 told him that his mobile has been lost from OP-2 and showed his inability to return the same. Complainant requested OP-1 to refund the cost of said mobile phone alongwith Rs.4,999/-he gave for replacing his display, but OP-1 flatly refused to accept his request. Complainant made several requests to OP-1 to return his mobile with changed display or to refund the cost price of mobile and payment made by him for changing display alongwith compensation and litigation expenses. All this has caused great harassment and mental tension to him, which amounts to deficiency in service and trade mal practice on the part of OPs. Complainant has

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prayed for seeking directions to Ops to pay Rs. 20,000/-as compensation for mental agony and harassment suffered and  for litigation expenses besides the main relief. Hence, the complaint.

3                              The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 6.10.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                  OP-1 filed reply through counsel wherein took preliminary objections that complaint filed by complainant is not maintainable as OP-1 has only sold the said mobile phone to complainant in a sealed packet and he is not liable for any incident occurring after the sale. OP-2 is the insurance company and only OP-2 is liable for the loss of complainant. it is averred that complainant has not come to the Forum with clean hands and has concealed the material facts from this Forum. It is an abuse of process of law and complainant has filed this complaint only to extract the money from answering OP. Answering OP is only dealer and has only sold the said mobile phone to him and is not liable for any loss occurring after the sale. However, on merits, OP-1 have denied all the allegations of complainant being wrong and incorrect and asserted that complainant neither handed over his said mobile to him nor he ever issued any proforma invoice dated 21.02.2017 to complainant. entire story is concocted by complainant to gain undue advantage from answering OP. There is no deficiency in service on the part of OP-1 and prayed for dismissal of complaint with costs.

5                                                  Notice issued to OP-2 through registered cover did not receive back undelivered and same was presumed to be served. On date fixed, no body appeared in the Forum on behalf of OP-2 either in person or through

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Counsel to contest the case despite long waiting till 4 O’ clock and therefore, OP-2 was proceeded against exparte vide order dated 25.09.2018.

6                                            OP-3 appeared in the Forum through counsel but despite availing several opportunities, it did not file reply and thereafter, counsel for OP-3 gave statement before the Forum that he has no instruction from OP-3 regarding present complaint matter, and therefore vide order dated 22.04.2019, OP-3 was proceeded against exparte.

7                                                Parties were given proper opportunities to lead evidence to prove their respective pleadings. Ld Counsel for complainant tendered in evidence affidavit of complainant Ex.C-1 and documents Ex C-2 to 4 and then, closed the evidence.

8                                                          To controvert the allegations of complainant, ld counsel for OP-1 tendered in evidence affidavit of Rinku Bansal Ex OP-1/1 and then, closed the same on behalf of OP-1.

9                                                                  We have heard learned counsel for complainant and have very carefully perused the affidavits & documents placed on the file by complainant as well as OP-1. After careful observation of the record placed on file and evidence led by respective parties, it is observed that case of the complainant is that he purchased a mobile phone from OP-1 against proper bill for Rs.57,000/-.  Display of said mobile was broken and complainant handed over the same to OP -1 for repair, who demanded Rs.4,999/-from complainant for change of display. Complainant paid Rs.4,999/-to OP-1 for change of display, Op-1 issued proforma invoice dt 21.02.2017 and sent the mobile phone of complainant to OP-2 for changing its display.

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Despite several visits paid by complainant before OP-1, OP-1 did not return the said mobile to complainant and kept lingering on the matter on one pretext of the other and then, finally refused to give him his mobile on the ground that mobile of complainant has been lost from OP-2. Grievance of the complainant is that on his request to OP-1 to refund the cost of said mobile alongwith amount paid by him for change of display, Op-1 flatly refused to pay any heed to his genuine requests, which amounts to deficiency in service. All this caused harassment and mental agony to him. In reply, OP-1 stressed mainly on the point that he sold the said mobile to complainant in a sealed packet and now, he is not liable for any loss or incident occurring after the sale. Moreover, OP-2 being insurance company is liable for any loss caused to complainant. There is no deficiency in service on the part of OP-1. It is totally denied that complainant ever handed over his mobile phone to OP-1 and he never issued any proforma invoice to complainant. On the other hand, there is no rebuttal from OP-2 and OP-3.

10                                        To prove his pleadings, complainant has placed on record copy of bill dated 18.03.2016 Ex C-2 that fully proves the fact that complainant purchased the said mobile phone from OP-1 for Rs.57,000/-. Further copy of Pro Forma Invoice dated 21.02.2017 clears the point that complainant has handed over his mobile handset to OP-1 for change of display on 21^st February, 2017 and also paid Rs.4,999/-as charges for the purpose of change of display of his mobile handset. Through his affidavit Ex C-1, he has narrated his grievance and made prayer for redressal of same. On the contrary, there is no rebuttal from OP-2 and it has nothing to contradict the pleadings of complainant. Moreover, in the light of document Ex C-3 copy of proforma invoice, there remains no doubt that complainant handed over his mobile handset to OP-1 and also paid Rs.4,999/-for

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change of its display and bare perusal of this document clearly shows that plea taken by OP-1 that he has neither received any mobile from complainant nor have issued any proforma invoice to complainant, has no relevance. Ex C-3 is a cogent document of vital importance that proves that there is deficiency in service on the part of OPs.

11                                      From the above discussion and keeping in view the evidence and documents placed on record by complainant and OP-1, it is made out that there is deficiency in service on the part of OP-2. Had OP-2 taken requisite care of mobile phone of complainant,  it would not have lost from him. OP-2 has been negligent in providing effective services and failed to redress the grievance of complainant. Had OP-2 paid any heed to hear the complaint of complainant and have provided effective services by replacing the display of  mobile in question or have refunded its cost received for change of display, the nature of complaint would have been different. We are of the considered opinion that there is deficiency in service and unfair trade practice on the part of OP-2. However, OP-1 and 3 have no role in redressing grievance of complainant. The insurance, if any, is to be given by OP-2. As such, there is no deficiency in service on the part of OP-1 and 3.  Hence, the present complaint is allowed against OP-2 and OP-2 is hereby ordered to refund Rs.57,000/- to complainant as cost of said mobile phone alongwith Rs.4,999/-that he paid for replacing the display of said mobile. OP-2 is further directed to pay Rs.2,000/-to complainant for harassment and mental agony suffered by him alongwith Rs.1,000/-as cost of litigation. Complaint against OP-1 and 3 is dismissed as they no role in making refund of cost of said mobile phone and in its repair. Compliance of the order be made in prescribed time failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer

 

 

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Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

Announced in open Forum:

Dated: 11.09.2019

(Parampal Kaur)                 (Ajit Aggarwal)

 Member                              President