Delhi

North East

CC/215/2017

Ms. Akansha Jain - Complainant(s)

Versus

M/s Digital cafe and Others - Opp.Party(s)

18 Oct 2018

ORDER

 

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 215/17

 

In the matter of:

 

	Ms. Akansha Jain D/o Sh. L.K. Jain C-7/209, Yamuna Vihar Delhi-110053.	Complainant
	Versus
	M/s Digital Café Through its Prop/partner C-3/160, Yamuna Vihar, Delhi-110053.	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

05.07.2017 18.10.2018 18.10.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Grievance of the complainant made out in the present complaint is that she had purchased a mobile of the make A710 Samsung from OP1 seller / dealer on 17.03.2016 for Rs. 32,500/- paid in cash vide bill no. S15/2239. On the same day the complainant also got insured the subject mobile at the instance of OP1 from OP2 on payment of Rs. 3499/- vide invoice no. 9929 for a period of one year uptil 17.03.2017 vide which insurance the subject mobile was granted protection by OP2 against physical damage, liquid damage, theft, data loss and virus. However unfortunately the said mobile got snatched on 05.05.2016 from the complainant by two persons riding on motorcycle at Yamuna Vihar, Delhi for which the complainant lodged an FIR no. NED-BP-000157 on the same date and lodged an insurance claim with OP2. The OP2 raised certain clarifications of FIR and the complainant got the same verified from the concerned police vide application dated 29.05.2016 to SHO, PS Bhajanpura and RTI reply by additional DCP North East dated 09.06.2016 in this regard confirming FIR under Section 379 / 356 IPC and submitted the requisite information to OP2. However OP2 did not process the claim. The complainant issued a legal notice dated 11.06.2016 to the OPs demanding immediate release on insurance claim after which the OP2 agreed to process the claim of the complainant and the complainant paid a sum of Rs. 4875/- on the demand of OP2 to one Mr. Nitin, Executive of OP2 on 06.10.2016 for giving a new phone to the complainant. Thereafter on 16.01.2017 a courier person from Fedex Express handed over a parcel from OP2 to the complainant at her residence which felt very light in weight arousing suspicion and therefore the complainant called the police and opened the parcel in front of them which had a dummy mobile and in this regard a police complaint was lodged by the complainant with PS Bhajanpura against the OPs on 25.01.2017 vide diary no. 64 B. Thereafter the complainant followed up with OP2 vide e-mails dated 16.01.2017 for process of claim but to no avail. Lastly the complainant was constrained to file the present complaint alleging deficiency of service and unfair trade practice on the part of OPs causing harassment, tension and agony and prayed for issuance of directions against the OPs for refunding the cost of the mobile handset i.e. Rs. 32,550/- alongwith interest @ 24% from date of purchase till realization, refund of Rs. 4875/- deposited by the complainant for being promised a new mobile phone alongwith interest @ 24% from date of payment till realization, Rs. 25,000/- for harassment and mental agony and Rs. 15,500/- for litigation expenses.

Complainant has attached copy of retail invoice dated 17.03.2016 for Rs. 32,500/- as mobile cost, copy of retail invoice dated 17.03.2016 for Rs. 3499/- towards mobile insurance, copy of mobile protection plan offered by OP2, copy of FIR dated 05.05.2016, copy of legal notice dated 11.06.2016 with postal receipt, copy of RTI reply from ADCP north east dated 09.06.2016, copy of application dated 29.05.2016 to SHO Bhajanpura, copy of case acknowledgment/ cash receipt dated 05.10.2016 for payment of Rs. 4875/- made by complainant to OP2, copy of complaint dated 25.01.2017 to PS Bhajanpura and copy of e-mail dated 16.01.2017 from complainant to OP2 for process of claim.

2. Notice was issued to OPs on 21.07.2017 however none appeared on behalf of OPs. OP1 was proceeded against ex-parte vide order dated 02.11.2017 and in view of complainant’s inability to furnish alternate address of OP2 since summons had been repeatedly returned unserved on the address provided by the complainant, the complainant deleted OP2 from the array of parties on 23.01.2018 and filed amended memo of parties.
3. Complainant filed ex-parte evidence by way of affidavit and written arguments on 23.01.2018 and 13.02.2018.
4. The complainant filed CD alongwith certificate under Section 65 B of Indian Evidence Act in support of her contention that a dummy mobile phone was provided to her by OP2. The complainant moved an application under order VI Rule 17 of CPC for amendment of complaint as in advertently she had omitted to seek relief in prayer clause of refund of Rs. 3499/- paid toward cost of insurance of the mobile to OP2 and filed amended complaint on 31.08.2018.
5. We have heard the arguments forwarded by the complainant and have carefully perused the documentary evidence and the CD placed on record.

In the absence of rebuttal by the OPs to the allegations leveled by the complainant, suffice it is to say that from the documentary evidence placed on record it is evident that a clear case of deficiency in service and unfair trade practice on the part of OPs is made out in the present complaint in as much as the OPs despite having granted / extended insurance cover to the complainant towards the subject mobile against theft and the complainant having submitted the requisite documents and fees for process of claim and for a new mobile, the OPs failed to honor their contractual obligation as service provider to the complainant and played fraud upon her by giving her a dummy mobile. We therefore direct OP1 on whose insistence and assurance and inducement, the complainant had taken mobile insurance from OP2 to refund the cost of the mobile phone i.e. Rs. 32,500/-, Rs. 3,499/- towards cost of insurance and Rs. 4,875/- towards the sum deposited by the complainant for new mobile phone with OP2. We further direct OP1 to pay a sum of Rs. 5,000/- towards compensation for harassment and mental agony and Rs. 5,000/- towards litigation expenses to the complainant.

Let the order be complied within 30 days from the date of receipt of copy of this order, failing which penal interest @ 9% shall be imposed on the OP1 on the total awarded sum of Rs. 50,874/- from the date of passing of this order till realization payable to the complainant.

6. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7. File be consigned to record room.
8.  Announced on 18.10.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member