BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint No.267 of 2016.
Date of Instt.:17.10.2016.
Date of Decision19.07.2017.
Vivek Bansal son of Shri Rajiv Bansal, resident of House No.113-A, Ward No.2, Fatehabad Tehsil & District Fatehabad.
...Complainant
Versus
1. R.K.Stickers & Mobile Shop, 104-Palika Bazar, Fatehabad District Fatehabad through its proprietor.
2. M/s Mobile Solutions, Authorized Service Counter of Samsung, Palika Bazar, Fatehabad District Fatehabad.
3. Samsung India Electronics Private Limited, B-1, Sector-8, Phase-II. Noida District Gotam Budh Nagar (Uttar Pradesh) through its Manager/Director.
4. Mr.Avinash Thakur, Claims Manager, Ssk Infotech Private Limited Plot No.521, Udyog Vihar, Phase-5, Gurgaon (Haryana) 122016, Ph. No.0124-1280703.
5. Ssk Private Limited 7, Akshaya complex, Office Dhole Patil Road, Pune 411001 through its Managing/Director contact No.02040131000.
6. Leehan Retails Pvt. Ltd., 4th Floor, Saphire Plaza, Plot No.80, S.No.232, New Airport Rd, Near Symbosis College, Sakore Nagar, Viman Nagar, Pune (Maharashtra)-411014.
..Opposite Parties.
Before: Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt. Ansuya Bishnoi, Member.
Present: Complainant in person
Sh.Yogesh Gupta, Advocate for OPs No.2 and 3.
Sh.R.K.Godara, Advocate for OPs No.4 to 6.
OP No.1 already ex-parte.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties with the averments that he had purchased a mobile Samsung Galaxy bearing IMEI No.52840072562955, IMEI No.352841072562953 for a sum of Rs.14,500/- from opposite party no.1 vide Invoice No.2218 dated 21.10.2015. The product in question was insured with OPs No.4 to 6 through OP No.1 vide coupon code No.37552089 for a period of one year. It has been further averred that the mobile in question got totally damaged after 8-9 months, therefore, the complainant contacted the Respondent No.2 and told about the problem of damage of mobile, OP No.2 kept the mobile and prepared the claim and forwarded to the OPs No.4 and 5. On 01.08.2016 OPs No.4 and 5 accepted and approved the claim on 17.08.2016. Upon this OP No.2 kept the mobile and issued the Job Card No.4221932483 dated 21.09.2016 and called the complainant next day. On 22.09.2016 complainant demanded his mobile, the OP No.2 contended that the display of the mobile had been damaged and the same did not cover under the warranty. The complainant told OP No.2 that his mobile is under warranty and his claim has been approved by the respondents No. 4 & 5, then OP No.2 called the complainant on 23.09.2016. on said date complainant visited the office of OP No.2, OP No.2 told him that this mobile would not be repaired and the claim had been tie-up in between OP No.5 and OPs No.2 & 3 and if you wanted to get repair the mobile then you have to pay a sum of Rs.5901/-. Upon this complainant said that his mobile is under warranty and it was insured then the OP No.2 misbehaved with the complainant and ousted him from this house. It has also been averred that the OPs have not paid any heed to request of the complainant despite serving of legal notice, therefore, there is deficiency in services and unfair trade practice on the part of the opposite parties. Hence, this complaint.
2. Notice of the complaint was sent to the OPs but OP No.1, did not appear before this Forum, hence, he was proceeded against ex-parte vide order dated 21.11.2016. However, OPs No.2 & 3 appeared and contested the complaint of the complainant by filing joint reply wherein they have taken several preliminary objections such as locus standi, cause of action, maintainability and concealment of material facts from this Forum. They have further submitted that the company serves its customer and provide goods at the most competitive price and also enable most impeccable after sale service and there is no intent to deny the same under any circumstances because in case any after sale service/quality issue is brought to the notice of the service centre then as a policy matter it is corrected as a matter of priority. It has been further submitted that manufacturing defect in the product cannot be determined on the simplicitor submissions as it require proper analysis test report. The company was/is ready to provide services to the complainant regarding the unit in question as per company policy because the warranty was provided for one year but the same was subject to some conditions and the warranty of the unit becomes void in the following conditions:
1. Liquid logged/water logging.
2. Physically damage. 3. Serial No.missing. 4. Tampering. 5. Mishandling/burnt etc.
The company is a renowned company in electronic products and commodities and is manufacturing the electronic products for the past several years. It has been further submitted that the complainant had approached the service centre vide complaint No.4221932483 on 21.09.2016 with some problem in the handset but after checking the mobile in the presence of the complainant, the engineers of the service centre had told that the warranty of the unit is barred due to physical damage/broken and the same would be repaired on payment basis but the complainant told that the handset is insured with Op No.4 & 5 and he will not pay the charges of the mobile. It has been further submitted that OP No.2 & 3 have no privity of contract with OPs No.4 & 5 as it has only sold the unit in question to the complainant which was insured by OPs No.4 & 5. Other pleas made in the complaint have been controverted and prayer for the dismissal of the complaint has been made.
Ops No.4 & 5 appeared through counsel and filed reply to the complaint with the submissions that they only deal in retails and provide only the marketing facilities and they have no contract regarding insurance of mobile with the complainant. It is further submitted that the policy documents clearly shows that the contract regarding insurance under Syska Gadget Secure scheme is facilitated by M/s Leeann Retails Pvt.Ltd. and if any dispute regarding insurance is arisen then only the Leehasn Retails Pvt.,Ltd. Shall be responsible for the same. It is further submitted that the claim of the complainant has been approved by M/s Leehasn Retails Pvt.Ltd. All other allegations were denied and prayer for dismissal of the complaint with costs has been made.
OP no.6 was impleaded later on at the application filed by the complainant on 13.2.2016 and appeared through counsel on 20.3.2017. OP No.6 did not file any reply, however ld.counsel for Op No.6 got recorded his statement that Op No.6 had paid Rs.5901/- to the Op No.2 i.e. the Service Centre of Samsung mobile as per estimate.
In evidence, the complainant has tendered his affidavit and documents as Annexure C1 to Annexure C8. On the other hand, in evidence, the appearing OPs 2 & 3 have tendered affidavit/document as Annexure Rw1 and copy of warrantee card as annexure R1 . Thereafter, both the parties have closed their evidence vide separate statements.
3. We have heard the complainant and learned counsel for OPs No.2 to 6 and have gone through the case file carefully.
4. Fact regarding purchasing of hand set from OP No.1 duly insured by OPs No.4 & 5 (Annexure C2) is not disputed. The complainant has come with the plea that the mobile phone got broken during the subsistence of insurance period, which was valid for one year, but the Ops did not indemnify the loss suffered by him in time. In the complaint the complainant has specifically mentioned that he had visited the OPs and submitted the documents as per demand to settle the claim but when his claim was not settled therefore, he had no other option but to file the present complaint. It is worthwhile to mention here that nowadays the insurance companies are having tendencies to avoid the genuine claims on one pretext or the other and this is main reason of increasing of litigation between the insured and insurance companies. The complainant has purchased the mobile in question on 21.10.2015 and the damaged mobile was deposited with the service centre on 22.07.2016. However, ld.counsel for OP No.6 has got recorded his statement on 12.5.2017 that OP No.6 has paid Rs.5901/- to the service centre OP No.2. During arguments, complainant stated at bar that he has received the mobile after repair in the month of November, 2016. Meaning thereby the complainant had to stay without mobile for a long time of four months due to non making of payment by the OPs 4 to 6 and he has to suffer mentally as well as physically during this period. It appears that the insurance company kept the matter pending for a longer period intentionally on one pretext or the other. In the present case the insurance company has violated the provisions of CP Act and terms and conditions of policy because as per Regulation No.9 of Clause 5 it was obligatory on the part of the insurance company to settle the claim within 30 days. On this point reliance can be taken from case laws titled as National Insurance Company Limited Vs. Rajesh Kumar Kalia 2013 (2) CLT 417 (PB) & M/s Shital International Vs. United India Insurance Company Limited 2012 (1) CLT 326 (Pb.) wherein it has been held that claim not decided/repudiated within 30 days from the date of receipt of the survey report as per sub Clauses 5 of the Regulation No.9, Deficiency in service by insurer. There is enough to reach at conclusion that the insurance company has not acted fairly and due to this the complainant /insured has suffered mental agony and harassment on account of deficient service on behalf of insurance company. Further, Hon’ble National Commission in case titled as V.K.Kariyana Store V. Oriental Insurance Company Limited III (2014) CPJ 182 (NC) has held that Since upon issuance of insurance policy, insurer undertakes to indemnify loss suffered by insured on account of risks covered by policy, its terms have to be strictly construed to determine the extent of liability of insurer. Endeavour of Court should always be to interpret words in which contract is expressed by parties.
5. Keeping in view the facts and circumstances of the present case and the law laid down in the above mentioned case laws, the deficiency on the parts of OPs No.4 to 6 is proved. So, present complaint is hereby accepted partly with a direction to the Ops No.4 to 6 to pay a sum of Rs.3000/- as compensation to the complainant jointly and severally for harassment, mental agony including litigation expenses. There is nothing on file to prove any deficiency on the part of OPs No.2 & 3 therefore, present complaint stands dismissed against OPs No.2 & 3. This order should be complied within a period of 30 days from the date of receipt of this order. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.
Announced in open Forum.
Dated:19.7.2017.
(Ansuya Bishnoi) (R.S.Panghal ) (Raghbir Singh)
Member Member President
