BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.136 of 2017.
Date of Instt.:19.06.2017.
Date of Decision:22.03.2018.
Harjeet Singh son of Monmohan Singh, resident of H.No.372, Ward No.6, Naharka Mohalla, Ratia, Tehsil Ratia and District Fatehabad.
...Complainant
Versus
1.R.K. Stickers & Mobile Shop, Shop No.14, Palika Bazar Fatehabad, Tehsil & District Fatehabad through its Properietor.
2M/s B2X Service Solutions India Private Limited, City Centre Mall, Shop No.6, Ground Floor, Civil Lines, Bhatinda District Bathinda (Punjab) through its Proprietor/ Partner.
3. Apple India Private Limited, 19th Floor, Concorde Tower-C. UB city No.2, Vittal Mallya Road, Banglore-550001 (Karnatka) through its Managing/ Authorized Signatory.
4.The New India Assurance Company, Ground Floor, M.G.Road Fort, Opposite Bank of India, Mumbai-400001 through its Manager/ Authorized Signatory.
..Opposite Parties.
Before: Sh.Raghbir Singh, President.
Sh.M.K.Khurana, Member.
Present: Sh.Sant Kumar, Advocate for complainant.
Sh.Sachdev Bishnoi, Adv. for OP no.1.
Sh.Yogesh Gupta, Advocate for OPs No.2 and 3.
Sh.Parveen K.Jora, Adv. for OP No.4.
ORDER
The complainant has filed the present complaint against the Opposite parties (hereinafter to be referred as OPs) under Section 12 of the Consumer Protection Act, 1986.
2. In brief, the facts of the present case are that the complainant purchased a mobile handset make Apple I-Phone-6 (16GB) bearing IMEI No.355412672394933 from the OP no.1 vide invoice No.3940 dated 07.06.2016 for an amount of Rs.37,500/-. At that time it was told by Op no.1 that the complainant can get insured the aforesaid mobile and in case of any mis-happening like damage, theft of mobile, on snatching of mobile etc. the insurance company will pay the total sum assured of the aforesaid mobile handset. On the assurance of the Op no.1 the complainant got insured the above said handset from Op no1 under the insurance company of Op no.4 vide Master Policy No.95000046161100000001, Insurance Reference No.IRN504663 having validity of one year.
3. It is further submitted that after a few days of the purchased of the above mobile handset the complainant noticed that certain problems crept in the mobile i.e. screen used to remain blank on incoming calls, Proxy sensor auto working, Dust on front camera and low battery backup and unto auto off. Therefore the complainant made a complaint to OP no.1 in this regard. On this OP no.1 kept the handset with him for 2-3 days and returned the same to the complainant with assurance that the fault in the mobile has been removed. However, after getting the handset when the same was checked by the complainant it was noticed that all the defects were there in the handset. Therefore the complainant again visited the shop of Op no.1 and Op no.1 gave address of Op No.2 stating that Op No.2 is the Authorized Service Centre of the mobile company. On this the complainant visited the office of Op no.2 on 04.01.2017 and the problem in the handset was temporarily removed by Op no.2. Just after a few days the handset in question again started to create the aforesaid problems and as such the complainant again visited the office of OP no.2 on 20.01.2017 and OP no.2 kept the aforesaid mobile vide job-sheet No.BAT200117298490 by stating that the handset in question has a major defect and asked the complainant to come after 5-7 days. So the complainant visited the office of OP no.2 on 27.01.2017 and the above said mobile was returned to the complainant stating that now there is no problem of any kind in the mobile and all the problems have been removed. However after coming back at home the complainant used the aforesaid mobile and noticed that the problems of automatic operation system in the mobile, low battery backup, screen remain blank on incoming calls etc. are still in existence in the handset. Thereafter the complainant again visited the office of the Op no.2 and the authorized engineer of Op no.2 after checking the mobile informed the complainant that there is a manufacturing defect in the mobile and the same cannot be repaired. Therefore the complainant asked OP no.2 to replace the mobile having manufacturing defect and the mobile is also in warranty period. However Op No.2 did not give any satisfactory reply and delayed the matter on one pretext or the other. It is further submitted that thereafter the complainant asked several times to the OPs to return the original cost amounting to Rs.29,500/- but all in vain. It is further submitted that the above said act on the part of OPs amounts to deficiency and unfair trade practice in rendering service to the complainant. The complainant further prayed that the OPs be directed for making payment of the original cost of the handset to the complainant along-with interest as well as compensation on account mental agony and physical harassment suffered by him. Hence, the present complaint.
4. On being served Op No.1 appeared through his counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, cause of action and jurisdiction etc.; have been raised.
5. In reply on merits, it is admitted that the complainant had purchased the mobile in question on 07.06.2016 from OP no.1. However the remaining contents of the complaint have been denied being incorrect. It is further submitted that the Op No.1 did not sell any insurance policy to the complainant and as such OP No.1 is not liable for any insurance claim. It is further submitted that the OP No.1 is only the seller of the mobile in question and not an authorized service center for repairing the mobiles. It is also further submitted that after purchase of the mobile the complainant never visited the shop of Op no.1 and he has no knowledge regarding the depositing of the handset in question with the service care center of the company. It is also further submitted that there is no deficiency on the part of Op No.1 in rendering service to the complainant and as such the present complaint against the Op no.1 is liable to be dismissed.
6. Op No.2 also appeared and resisted the complaint by filing a written statement wherein various preliminary objection with regard to maintainability, cause of action and jurisdiction etc.; have been raised.
7. In reply on merit, it is submitted that there is no defect / problem in the mobile handset in question rather it is functioning properly. The complainant has intentionally concealed the fact that the handset in question was checked by Op No.2 and returned the same to the complainant on 27.01.2017 with the comments “no problem found returned without repairs”. The OP No.2 has denied that the complainant approached to him on 04.01.2017 as alleged. In fact, the complainant had approached to OP No.2 on 28.12.2016 and was asked to collect the mobile on 04.01.2017. The OPs No.2 checked the mobile and no defect was found in the same. The mobile was returned to the complainant on 04.01.2017. The allegations of the complainant that Op no.2 temporarily removed the alleged problem, is totally wrong and hence denied. It is also further submitted that the complainant visited Op No.2 on 20.01.2017 stating that there is a major defect in the mobile and the said mobile was kept with Op no.2 for checking and a job-sheet was issued to the complainant. OP No.2 checked the mobile and found that there is no problem in the handset and the complainant was accordingly informed and the mobile was collected on 27.01.2017. Thereafter the complainant never visited the office of Op No.2. Therefore there is no deficiency on the part of Op No.2 in rendering service to the complainant and the present complaint against the OP No.2 is liable to be dismissed.
8. On being served, Op No.3 appeared through his counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, devoid of merits, against principle of law, concealment of material facts, cause of action, locus-standi etc.; have been raised.
9. On merits it is admitted that the handset in question was purchased by the complainant on 07.06.2016. However it is denied that any sort of insurance on the above said mobile handset directly or indirectly issued by OP no.3. It is further submitted that OP no.2 is the authorized service center of Op no.3 and it maintains documentation of all the complaints and service records. However there is no record of the complainant having visited OP no.2 on 04.01.2017 and moreover the complainant has not produced any service report dated 04.01.2017 issued by OP no.2. It is further submitted that the complainant submitted I-Phone in question to Op no.2 on 20.01.2017 and it was returned to him on 27.01.2017 and the service report was also issued. No manufacturing defect was detected in the said mobile by the OP No.2. It is also further submitted that there is no piece of evidence to show that the mobile in question was having a manufacturing defect. The complainant failed to produce any evidence to prove that the mobile in question was having any manufacturing defect. Since no defect has been determined or certified by Op no.2 as such the allegations made by the complainant are not proved. The OP No.3 has further submitted that there is no deficiency on their part in rendering service to the complainant and as such the present complaint is liable to be dismissed against OP No.3.
10. On being served, OP No.4 also appeared and resisted the complaint by filing a written reply wherein various preliminary objections with regard to maintainability, cause of action, suppression of true and material facts etc. have been raised.
11. In reply on merits, it is submitted that as per terms and conditions of the policy of insurance the scope of insurance cover was fire, lightening, riot, strike, malicious, damage, theft and accidental loss and act of god perils viz flood etc. However the present complaint is not covered under any of the above conditions and as such OP no.4 is not liable to compensate the complainant in any manner. Therefore no cause of actions has accrued in favour of the complainant for institution of the present complaint against OP no.4. The OP no.4 has further prayed that the present complaint against Op no.4 may kindly be dismissed being without any merit.
12. In evidence, the counsel for the complainant placed on record affidavit of Harjeet Singh-complainant as Annexure C1 and the documents as Annexures C2 to C5 and closed the evidence. On the other hand, Sh.Paropkar Singh, Manager filed an affidavit on behalf of OP no.2 and documents as Annexures R2/2 to R2/5. Sh.Karan Chaudhary, Divisional Manager filed his affidavit as Annexure RW1/A on behalf of OP no.4 and the documents as Annexure R1. Sh.Priyesh Povanna, Legal counsel filed his affidavit in evidence as Annexure RW3/A on behalf of OP no.3. OP no.3 also tendered in evidence documents as Annexures R3/1 and R3/2.
13. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of the complainant that he had purchased a mobile handset from OP no.1 on 07.06.2016 for an amount of Rs.37,500/-. It is further the case of the complainant that he obtained insurance of the above said mobile from OP no.1 and the insurance was issued by OP no.4. The said mobile was also having a warranty of one year. It is further the case of the complainant that during the period of warranty and during the subsistence of the insurance policy, a number of defects crept in the mobile. However the defects in the mobile in question were not removed by OPs No.2 and 3. The complainant further submitted that the defect in the mobile handset is a manufacturing defect and as such he is entitled for getting payment of original cost of the mobile.
14. It is a settled principle of law that original cost of a product/ mobile can only be refunded in case there is manufacturing defect in the mobile handset. From perusal of the record of present case it is revealed that the complainant has not produced any evidence/ document or job-card or expert opinion to prove that there is manufacturing defect in the mobile in question. Moreover, there is no document or job-sheet or other convincing evidence to prove that the mobile in question has any defect other than the manufacturing defect. Moreover from perusal of Annexures R2/3 and R2/5 i.e. the delivery reports placed on the record it is revealed that there was no problem in the handset in question. Therefore there is no document on the file to prove that there is any defect or manufacturing defect in the handset in question. So, we are of the considered opinion that the complainant has failed to prove any deficiency on the part of OPs no.2 and 3 in rendering service/ selling the mobile to the complainant.
15. Regarding any deficiency on the part of OP no.4 it is pertinent to mention here that as per the terms and condition of the policy of insurance the scope of cover was fire/ lightening, riot, strike, malicious damage, theft, accidental damage including accidental liquid damage and act of God i.e. flood, hurricane, storm, tempest. However the defect if any involved in the present case is not covered under the above said terms and conditions of the policy of insurance issued by Op no.4. Therefore we are of the considered opinion that the complainant has failed to prove any deficiency on the part of Op No.4 in rendering service to him. The complainant has also failed to prove any deficiency on the part of Op No.1.
16 In view of aforesaid discussion the present complaint is accordingly dismissed with no order as to costs. A copy of this order be furnished to all the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
Announced in open Forum:
Dt.22.03.2018.
(M.K.Khurana) (Raghbir Singh)
Member President
DCDRF, Fatehabad.
