BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No. 309 of 2016.
Date of Instt.:07.12 .2016.
Date of Decision: 16.11 .2017.
Jaipal son of Sh. Chhabil Dass, resident of village Dhani Chanchak, Tehsil and District Fatehabad.
..Complainant
Versus
1.M/s Khurana Mobile Gallary (Authorized Dealer) 103—B, Palika Bazar, Fatehabad, Tehsil and District Fatehabad through its Proprietor.
2.Mobile Solution, Palika Bazar, Fatehabad (Authorized Service Centre of Samsung)
3.Leehan Retails Pvt. Ltd.,4th Floor, Sapphire, Plaza, Plot No.80, S.No.232, New Airport Road, Near Symbiosis College Skore Nagar, Viman Nagar, Pune, Maharastra -411014 through its Manager.
4.Samsung India Electronics Pvt. Ltd. 2nd, 3rd, 4th floor, Tower-C, Vipul Tech Square, Sector -43, DLF-Golf Course Road, Gurgaon-122002.
..Respondent/OP
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh.R.K.Panwar , Adv.for the complainant.
Sh. Yogesh Gupta, Adv. for the OPs No.2 and 4.
Sh.Raj Kumar Godara, Adv. for OP No.3
OP No.1 already ex-parte.
Order
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OPs with the averments that on 10.11.15 he purchased a mobile model Samsung J2 (Gold) from OP No.1 for an amount of Rs.8300/- vide Bill No.12276. At the time of purchasing of mobile the OP No.1 gave a warranty of one year of the mobile to the complainant. The OP No.1 also informed the complainant regarding an insurance scheme and after receiving an amount of Rs.600/- from the complainant the insurance of the mobile was issued by the Op No.1. It is further stated that after a period of 9-10 months the above said mobile fell down from the hand of the complainant and as such the display of the same was damaged. Thereafter on 03.09.2016 the complainant took the mobile to OP No.2 and OP No.2 registered the complaint of the complainant and the mobile was deposited with the Op No.2 who assured to the complainant that the mobile will be sent to the company and he may seek further information after one week. However the aforesaid mobile was returned to the complainant without any repair and OP No.2 informed that he has no link with Ops No.1 and 3 and he may contact to Op No.1 for repair of the mobile. Thereafter the complainant approached to OPs No.2 and 3 for rectification of error in the mobile but nothing was done by them. Neither the aforesaid mobile repaired nor the amount of insurance has been disbursed to the complainant. It is further stated that above said act on the part of the OPs amounts to deficiency in service and unfair trade practice. Therefore the complainant is entitled for payment of original amount of the aforesaid mobile and compensation on account of mental agony and physical harassment suffered by him. Hence this complaint.
2. On notice the OPs no.2 and 4 appeared and resisted the complaint by filing a joint written statement wherein various preliminary objections with regard to maintainability, cause of action and territorial jurisdiction etc. have been raised. On merits it is submitted by the OPs no.2 and 4 that there is no previty of contract between the OPs No.2 and 4 and insurance company. It is further submitted that the answering OPs were and are still ready to repair the mobile as per warranty policy. So there is no deficiency on the part of answering OPs. It is further submitted that the answering OPs has on-line system to enter all service requests/complaints vide IMEI.Sr. No. in each and every case but no details were found in the on-line system of the answering OPs pertaining to the handset in question which amply proves that the complainant has never approached the answering OPs or any of its authorized centers. Thus the present complaint has been filed to extort illegal money and unjust benefit from the answering OPs. The OPs no.2 and 4 further prayed for dismissal of the complaint against them being devoid of any merit.
3. OP No.3 also filed written statement wherein various preliminary objections with regard to maintainability, locus-standi, cause of action and concealment of true and material facts etc have been raised. On merits it is submitted that the complainant himself has violated the terms of insurance policy as the intimation regarding the incident was not got recorded by original customer. It is also further stated that the complainant had failed to deposit the mobile with the answering OP in the specified period and as such the claim of the complainant was auto-closed as per terms and conditions of the policy. The OP No.3 further prayed of dismissal of the complaint being without any merit.
4. OP No.1 despite proper service did not appear and as such he was proceeded ex-parte vide order dated 10.01.2017.
5. In evidence the complainant tendered his affidavit as Annexure C1 along-with documents as Annexure C2 to C6 and closed the evidence. On the other hand Sh.Anidiya Bose filed his affidavit on behalf of OPs No.2 and 4. The OPs in their evidence also produced documents as Annexure R1, Annexure D1 and D2.
6. We have duly examined the pleadings of the parties, have also considered arguments advanced by the learned counsel for the parties and appreciated the evidence produced on record by the parties. It is the case of the complainant that he purchased an insurance policy for his mobile against accidental damage, theft, fire etc. The said insurance policy was issued by OP No.3 through OP No.1 and a payment of Rs.600/- was made by the complainant. It is further the case of the complainant that the said mobile was damaged during the subsistence of the policy. However the OPs without any justified reason neither repaired the damaged mobile nor refunded the original value of the unit.
7. It is also contended that the case of the complainant falls within the purview of the insurance policy but the genuine claim of the complainant has been declined by the OPs
8. It is not disputed that insurance of the mobile in question for one year was obtained by the complainant from the OPs and a payment of Rs.600/- was made to OP No.1 at the time of issuance of the policy. It is also not disputed that document of insurance (coupon) was issued by the Op No.3. It is also not in dispute that the mobile was damaged due to accidental fall. The claim of the complainant has been contested by the Op No.3 inter-alia on the ground that Op No.3 i.e. Leehan Retailers Pvt. Ltd. is only facilitator and the insurance of the mobile has been issued by the Oriental Insurance Company and as such OP No.3 is not liable for making payment of insurance claim. It is also the case of the Op No.3 that after giving intimation the complainant did not deposit the mobile with Op No.3 within the stipulated period and intimation regarding the damage was not given to Op No.3 by the original owner of the mobile.
9. We are of the considered opinion that the grounds taken by the Op No.3 for declining the insurance claim of the complainant are not tenable. In the present case the coupon/document of insurance issued to the complainant pertains to Op No.3 and as such Op No.3 cannot escape from the liability. Moreover Op No.3 is also earning profit from the policy. The other ground taken by the Op No.3 that the mobile was not deposited with them within the stipulated period is vague and it is not specified what was the stipulated period and when the mobile was deposited with the OPs. Moreover there is no repudiation letter produced by the Op no.3 on the file. No affidavit has also been filed by the Op No.3 in support of its case.
10. In view of the discussion as made above we are of the opinion that the complainant has been able to prove deficiency on the part of the Op No.3. Therefore the present complaint is allowed against Op No.3. The OP No.3 is directed to make a payment of insurance claim within a period of one month to the complainant after making deduction as per terms and conditions of the policy. Since the complainant has sought his claim on the basis of insurance policy as such no deficiency is proved against the OP No.1, 2 and 4. Hence, complaint against OPs No.1, 2 and 4 is hereby dismissed. A copy of this order be supplied to both the parties free of cost as provided in the rules. File be consigned after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.16.11.2017
(Ansuya Bishnoi) (R.S.Panghal) (Raghbir Singh)
Member Member President
DCDRF, Fatehabad
