BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.28/2016

Dated this the 28^th day of February 2018

(Date of Institution: 01.08.2016)

M. Prabu, son of Manikkavel      

No.3, 3^rd Cross, P.C.P. Nagar

Ariyankuppam,               

Puducherry – 605 007.

                                      ….     Complainant

Vs.

1. M/s Friends Mobile

    Rep. by its Authorised Signatory     

    No.117, Anna Salai (Opp. Kandan Theater)

   Pondicherry – 605 001.     

2. AppsDaily Solutions Pvt Ltd., rep. by its        

    Authorised Signatory                

    D-3137-39 Oberoi Garden Estates Chandivalli Farm Road

    Andheri (E), Mumbai – 400 072.

3. AppsDaily Solution Pvt Ltd., rep. by its

    Authorised Signatory         

    No.25, 1^st Cross, Rainbow Nagar (Near Deepika Parlour)

   Puducherry.

4. M/s HTC Mobile Pvt Ltd., rep. by its

    Authorised Signatory

    G-4, Bptp Park Avenue, Sector 30,

    Gurgaon, 122002, Near Nh-8

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,     

           MEMBER

Tmt.         D. KAVITHA, B.A., LL.B.,   

           MEMBER

FOR THE COMPLAINANT            :  Thiru AG. Iyanar, Advocate   

FOR THE OPPOSITE PARTIES:          :  OPs 1 and 3 – Ex parte            

OPs 2 and 4 – appeared through Authorised Signatory

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Direct the opposite parties to jointly and severally refund the cost of the Mobile Phone, a sum of Rs.35,100/- with interest at the rate of 18% per annum from the date of purchase till payment and discharges;
2. Direct the opposite parties to jointly and severally pay the complainant a sum of Rs.3.00 lakhs towards compensation for physical hardship, humiliation, harassment, suffering and mental agony suffered;
3. Pay a sum of Rs.15,000/- towards cost of this litigation by the opposite parties.

2.  The case of the complainant is as follows:

          The Complainant purchased a  HTC E9+DS Meteor Gray Mopbile Phone bearing IMEI / Serial Number 357709062792713 from first opposite party under Invoice No.7358 dated 19.09.2015 for Rs.35,100/- manufactured by 4^th Opposite Party on the representations of first opposite that the said model has so many special features and functions which the other brands do not have.  At the time of purchase, the first opposite party also represented on behalf of 2^nd opposite party that if anything happen in future, the second opposite party will replace the same under the scheme of AppsDaily insurance scheme and hence, the complainant purchased the insurance scheme for Rs.2000/- and the first opposite party had given a scratch Card Sr. No. DAP 4447114, Scratch Code-6b5edrPYD9 and gave the instruction for activation, the complainant also done as per 1^st opposite party's instruction and it has been activated and the insurance coverage is for one year from 19.9.2015 to 18.09.2016.  The complainant stated that after 8 months of purchase, the display has been broken within the insurance period.  The same was informed to the first opposite party on 04.05.2015, but refused to replace the mobile, however, asked the complainant to get service assistance to rectify the problems from the authorised service centre for HTC product i.e. the third opposite party herein.  On 05.05.2015 the complainant approached third opposite party and explained his problem who undertook to rectify the same and return the mobile within a week, but did not do so, which caused  mental agony to the complainant.  On 25.06.2016 the third opposite party shown the mobile phone alleging that the defects were rectified, but on checking the same, the same problem occurred and hence, the complainant handed over the mobile phone with the third opposite party.  The complainant is doing business and due to non-availability of cell phone, he sustained huge loss of money.  The complainant sent a lawyer's notice on 22.06.2016 and the same was acknowledged by the first and second opposite parties and the third opposite party returned the same as unclaimed and the notice sent to 4^th opposite party was neither returned nor replied till date.  Hence, this complaint. 

          3. The reply version filed by Opposite Party No. 2  briefly discloses the following:

          The insurance is a free feature bundled along with the product of the 2^nd and third opposite parties.  The procedure mentioned therein is to be followed in lodging the claim in case of physical damage, theft or burglary of the mobile phone and it is a necessary precondition of the contract between the complainant and the New India Assurance Company Limited, whose insurance offering is bundled with the product.  The complainant is attempting to use the machinery of this Forum to breach the terms of the contract between the complainant and the new India Assurance Company Limited.  The complaint is also bad for want of cause of action against the opposite parties.  The mobile was physically damaged on 28.04.2016 and on the same day itself, claim was registered with intimation id AD_D_290416_197659335 and the handset was handed over to the service centre Genesis Communication Hub Service Centre, on 06.05.2016 the complainant was required to submit documents for repairing the mobile.  On 14.06.2016 the complainant was informed on his personal email ID that based on the scanned documents submitted in respect of mobile handset damage, insurance company has processed the claim on Repair basis and the claim amount works out to Rs.12,250/- after deduction of Rs.654/- towards policy excess, Rs.191/- towards reinstatement, against the repair estimation of Authorised Service Centre of Rs.14,627/-.  New India Assurance Company Ltd., has approved the claim amount subject to submission of required documents.  In claim settlement, decision of Insurance Company is final and same is binding on Opposite Parties 2, 3 and the complainant.  This opposite party further stated that during delivery, customer need to pay approved difference amount of Rs.1532/- and Rs.654/- as policy excess against the estimation of rs.14,627/-, but he denied to pay and not collected the handset.  Even after that their Team Leader and Connect Centre informed customer to visit Connect Centre for collecting the handset and for discussions regarding difference amount, but the complainant did not come.  This opposite party further stated that their role is to only pay the service centre on behalf of the Insurance Company.  The complaint suffers for non-joinder of necessary party since the complainant has failed to make New India Assurance Company Limited as a party to the present complaint with an intention that the true facts will come out.  The complainant has not approached this Forum with clean hands.  Hence, prayed for dismissal of the complaint. 

4. The opposite parties 1 and 3 remained absent and set ex parte.
5. The reply version filed by the 4^th opposite party briefly discloses the following:

          The OP4 have no tie up with the Appsdaily and it is a third party insurance company and it is not authorised by manufacturer.  The complainant is trying to get warranty for physical damage device from company which is not provided as per their warrant terms and conditions.  The complainant has never submitted the device to any of the authorised service centre of OP4 company.  The complainant has submitted the device at Appsdaily Insurance company which is not authorised by them.  The limited warranty to customer for one year does  not cover the physically damaged device.  Hence, prayed for dismissal of the complaint. 

6.       On the side of the complainant, he has chosen to examine himself as CW.1 and marked Exs.C1 to C10 and on the side of Opposite Parties, no witness was examined and no documents were marked. 

 7.      Points for determination are:

1. Whether the complainant is the consumer as defined in Consumer Protection Act?
2. Whether there is any unfair trade practice and deficiency in service rendered by the opposite parties?
3. To what relief the complainant is entitled for?

8. Point No.1:

The complainant purchased a cell phone namely HTC E9+DS Meteor Gray Mobile Phone bearing IMEI / Serial Number 357709062792713 from first opposite party under Invoice No.7358 dated 19.09.2015 for Rs.35,100/- manufactured by 4^th Opposite Party vide Ex.C1 for his own use.  OP2 and OP3 are the service provider for OP4.  Hence, the complainant is the consumer as defined in the Consumer Protection Act.

9. Point No.2:

          We have perused the complaint and reply version filed by the second and fourth opposite parties, evidence of CW1 and the documents marked as Exs.C1 to C10.    The complainant filed proof affidavit, however, not cross examined by the opposite parties. The second and fourth opposite parties not put forth any evidence and produced any documents.  The first and third opposite parties remained absent and set ex parte.  The complainant purchased the cell phone  in question on 19.09.2015 for a valid consideration of Rs.35,100/-  vide Ex.C1, from the first Opposite Party  manufactured by 4^th opposite party along with insurance coverage for one year from 19.09.2015 to 18.09.2016 through second and third opposite parties vide Exs.C2 and C3 with terms and conditions.  The complainant stated that after eight months of purchase, the display has been broken and the complainant approached the first opposite party on 04.05.2015 for replacement of mobile phone who refused to replace the same and gave the address of the service provider the 3^rd opposite party to avail service assistance for rectifying the problem and for insurance claim.    Accordingly, the complainant handed over the cell phone with the third opposite party on 05.05.2016 vide Ex.C4 job sheet, who, in turn, made service for the complainant's cell phone and returned the same on 25.06.2016.  Even then, the complainant found other problems like no clarity and getting hot and hanging in the mobile phone.   The complainant alleged that he again handed over the cell phone with the 3^rd opposite party, but they had not rectified the defects.  Therefore, the complainant issued legal notice dated 22.06.2016 vide Ex.C6 to the opposite parties.  The opposite parties 1, 2 and 4 received the same vide Exs.C7, C8 and C10.  But, the third opposite party evaded to receive the same and it was returned vide Ex.C9. 

10. The opposite parties 2 and 4 denied all the allegations made by the complainant and the second opposite party taken the defence that immediately after purchase of Ex.C2 the Scratch card being activated and the New India Assurance Company Limited, insured the cell phone against theft, burglary, physical damage etc.  On 29.04.2016, a claim for physical damage was registered with the New India Assurance Company Ltd., and the complainant handed over the cell phone with Genesis Communication Hub Service Centre for repairing on 06.05.2016 and the complainant was informed to submit required documents for repairing the mobile.  The OP2 alleged that on 14.06.2016 the complainant was informed about the approval of claim amount by the New India Assurance Company Ltd.,  but the complainant refused to accept the same for which, an email was also sent to the complainant.   The second opposite party further alleged that the complainant ought to have impleaded the New India Assurance Company Ltd., as a party to this proceedings.  Thus, the complaint suffers for Non-joinder of Necessary Party.  The OP2 further replied that in this case, the correct procedure was followed and the complainant lodged the claim with the insurance company and after approval, it was repaired.  Hence, there is no deficiency in service on the party of second opposite Party. 

11. The 4^th opposite party alleged that they do not have any tie up with Apps Daily and as per their terms and conditions the said mobile phone does not cover the warranty for physical damage.  Further alleged that the complainant never submitted the device to any of their Authorised Service Centres.

12.     From the above facts and exhibits on hand, it is clear and confirms through Exs. C1, C2 and C3 that the cell phone was purchased by the complainant from the first opposite party and the same was insured by the second and third opposite parties.  On perusal of Ex.C4, the cell phone was given for repair with the third opposite party.  Though the second opposite party alleged that they have approved the claim and the cell phone was repaired, no documents were filed to prove that the hand set was returned back to the complainant after rectifying the repairs.  The onus is vested on the 2^nd and 3^rd opposite parties to refute the contentions of the complainant.  The second and third opposite parties have not produced any documents to show that the complainant's claim was approved and the cell got repaired.  In the absence of any evidence in support of the pleadings, the contentions of the second opposite party is not sustainable.   Further, even the second opposite party not cross-examined the complainant to establish their contentions.  Hence, this Forum could come to the conclusion that the hand set was with the third Opposite Party from 05.05.2016 and it is not returned back to the complainant which would certainly causes irreparable loss and injury to the complainant.  Even after received the summons from this Forum and failed to appear and contest the case leads to take an adverse inference  as against the 3^rd opposite party.    

          13. As regards the first opposite party, they are only the sellers of Mobile phone.  Since the mobile phone does not have any manufacturing defects and the nature of defects occurred also not coming under the warranty conditions.  As soon as the problem was informed to them, they have referred the complainant to approach third opposite party for service and claim who is the service provider.  Hence, the first opposite party is not liable for deficiency in service.    

          14.  As regards the 4^th opposite party, being the manufacturer of the alleged cell phone, as per the Bill Ex.C1 they are liable for service warranty to the handset for one year that too, the hand set should be given for service with their authorised service centre.  The Ex.C1 specifically mentioned that the warranty is void if the handset is logged and physically damaged.  Since the alleged cell phone got physically damaged, the complainant has to approached the second and third opposite parties for necessary service and claim.  The complainant has not given the handset with the authorised service centre of OP4.  Hence, this Forum found that the OP4 has not committed any deficiency in service to the complaint and hence, the complaint against OP4 is not sustainable.    

          15.  The complainant alleged that in view of the mobile phone problem, he is not able to contact his business clients due to which he sustained huge monetary loss.  But, he has  not produced any documents supporting his claim and not even stated the nature of his business.   Therefore, this Forum does not find any monetary loss occurred to the complainant for non-availability of cell phone.  

            16.  In view of the discussions made supra, this Forum found that the Opposite Parties 2 and 3 only liable to pay compensation to the complainant for the mental agony, loss and hardship suffered by the complainant due to the deficiency of service.  The complainant entrusted the insured mobile phone to the OP2 and OP3 being service provider of the insurance company for rectifying the defects.  After rectification made by the OP2 and OP3 through one Genesis Communication Hub Services and demanded difference amount from the complainant.  Since the complainant was not satisfactory in the service made by the said Genesis Communication Hub Services being the defects not properly attended, the OP2 and OP3 are liable for indemnifying the cost of the mobile phone to the complainant and they are entitled to recover the same from the insurance company being the service provider of the alleged insurance company.   Hence, this complaint is hereby dismissed as against OPs 1 and 4 and allowed as against OPs 2 and 3.  This point is answered accordingly.

17.     Point No.3:

          In view of the decision arrived in point No.2, the 2^nd and 3^rd opposite parties are directed to:

1. Pay a sum of Rs. 35,100/- to the complainant being the cost of Mobile Phone and recover the amount from the insurance company;
2. Pay a sum of Rs.15,000/-  being compensation for the loss and injuries sustained by the complainant due to the deficiency in service;
3. pay a sum of Rs.5000/- towards cost of this complaint.

4. The third opposite party is directed to keep the mobile with them after compliance of this order.

Dated this the 28^th day of February 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          12.05.2017                     M. Prabu     

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

(D. KAVITHA)

MEMBER