BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.164 of 2015

Date of Instt. 23.04.2015

Date of Decision :09.09.2015

Deepak Sethi son of Yash Pal R/o 75, New Kartar Nagar, Model House, Jalandhar.

..........Complainant

Versus

1. M/s HTC India Pvt Ltd, (Corporate Office) through its authorized representative, Sector 30, Gurgaon, Haryana.

2. M/s HTC India Pvt Ltd, Chennai-I APAC Headquarters HTC Towers No.41, GST Road Guindy, Chennai-600032.

3. Mobile House, E.K.231/1, Old Division No.3 Market, Phagwara Gate, Near Chowk Bhagat Singh, Jalandhar through its authorized representative.

4. The New India Assurance Co.Ltd, through its authorized representative, 87, M.G.Road, Fort, Mumbai-400001.

5. Shree Communications through its authorized representative, Shop No.5-G, S Bajwa Complex, Opposite Friends Bakery, Nakodar Road, Jalandhar.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Puneet Sareen Adv., counsel for complainant.

Sh.Akash Batra Auth.Rep., of OPs No.1,2&5.

Sh.AK Arora Adv., counsel for Op No.4.

Opposite party No.3 exparte.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant had approached opposite party No.3 for purchasing a mobile phone and was informed and assured to purchase a mobile phone make HTC 820-G as the same is of a better quality than other mobile companies. Coming under allurance, complainant had purchased mobile phone model HTC 820-G having IMEI No.354920061961778 and had paid Rs.23,000/- for the same. Opposite party No.3 had issued invoice No.10361 dated 16.01.2015. The above said handset was also got insured with opposite party No.4 insurance company after paying the same Rs.1700/-. After the purchase of mobile handset mentioned above, it started creating problems and was having manufacturing defect. The above mentioned mobile was having problem in speaker/MIC problem and accordingly complainant had approached opposite party No.3 with the complaint. Opposite party no.3 had informed to contact the service centre i.e opposite party No.5. Accordingly complainant had handed over the mobile handset vide DOA No.151NA040010906 having complaint ID/Tag No.ATQ033-0002935 on 22.1.2015. Since after 22.1.2015, complainant had been regularly approaching opposite parties No.3 to 5 with the complaint as referred above. Till today opposite parties No.3 to 5 have neither removed the problem reported in the mobile phone nor opposite party No.5 has returned the mobile handset inspite of the fact that complainant had been approaching them on daily basis. On such like averments, the complainant has prayed for directing the opposite parties to replace the old mobile handset with new one of the similar value. He has also claimed compensation and litigation expenses. The complainant has also prayed for directing the opposite party No.4 to insure the new replaced mobile handset with fresh insurance from the date of the same being given to him.

2. Upon notice, opposite parties No.1,2,4,5 and appeared and filed their written replies. In their written reply, opposite parties No.1,2 and 5, inter-alia, pleaded that the actual fact is that the complainant came to opposite party No.5. The opposite party No.5 made a certificate to hand over the same to opposite party No.3 for change of set. The said handset is lying with opposite party No.3 which they have neither returned nor replaced. It denied other material averments of the complainant.

3. In its separate written reply, opposite party No.4 pleaded that the opposite parties No.1 & 2 are not the insured of opposite party No.4. The policy of insurance has been issued by the opposite party No.4 in the name of M/s Shotformats Digital Works Pvt Ltd and the insured in the present case is not a party to the complaint and that being so, the complaint is liable to be dismissed with specials costs. Without admitting any liability, it is submitted that as per the averments made in the complaint, the mobile handset purchased by the complainant was having manufacturing defect, which falls under exclusion class No.8 of the policy of insurance and the opposite party No.4 has no liability to make payment of any claim in respect of the mobile handset.

4. Upon notice, opposite party No.3 did not appear and as such it was proceeded against exparte.

5. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C9 and closed evidence.

6. On the other hand, authorized representative of opposite parties No.1,2 and 5 has tendered affidavit Ex.OP-1,2&5/A and closed evidence. Further learned counsel for opposite party no.4 has tendered affidavit Ex.OP4/A alongwith copy of document Ex.OP4/1 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsel for the complainant and authorized representative of opposite parties No.1, 2 & 5 and learned counsel for the opposite party No.4.

8. The complainant purchased the mobile handset in question on 16.1.2015 for Rs.23,000/- from opposite party No.3 vide retail invoice Ex.C1. According to the complainant, he handed over his defective mobile handset to opposite party No.5 who issued DOA Certificate Ex.C2 but since then he is approaching opposite parties No.3 to 5 but till today they have neither solved the problem nor opposite party No.5 has returned the mobile handset. So far as, insurance company is concerned, in case of manufacturing defect, it is not liable. Ex.C3 are terms and conditions of the policy issued by the opposite party No.3. As per section No.3-Exclusion clause, in case of manufacturing defect, the insurance company is not liable(clause-8). According to complainant he handed over his mobile handset to the service centre i.e opposite party No.5 who issued DOA Certificate Ex.C2. However, in its written reply, opposite parties No.1,2&5 have pleaded that said handset is lying with opposite party No.3 who has neither returned nor replaced the same. It has further pleaded that opposite party No.5 made a certificate to hand over the same to opposite party No.3 for change of set. Ex.C2 is DOA Certificate and below the certificate it is specifically mentioned that retailer/MD invoice copy was received alongwith handed as proof of purchase. There is further note on it that the set submitted is complete in all respect as per the HTC DOA policy. As per notes given on DOA Certificate, the set was received by opposite party No.5. So opposite party No.5 is liable.

9. In view of above discussion, the present complaint is accepted against opposite party No.5 and it is directed to give the new box packed mobile handset of the same make and model to the complainant and in case same model is not available then to refund its price to him. The complainant is also awarded Rs.3000/- in lump sum on account of compensation and litigation expenses from opposite party No.5. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

09.09.2015 Member Member President