DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

 

Complaint Case No : CC/286/2020

Date of Institution   : 21.10.2020

Date of Decision    : 13.03.2024

Pritam Singh son of Budh Singh son of Bhagwan Singh, resident of Near Dharamshalla, Village Naiwala (Sher Singh Pura), Tehsil and District Barnala.      

                          …Complainant Versus

1. M/s R.K. Traders, Multi Brand Smart Phone Mobile Showroom, 22 Acre Barnala-148101 through its authorized person. 

2. M/s Bajaj Finance Ltd. 4th Floor, Survey 208/1-B, Viman Nagar, Pune-411014 through its Managing Director/Authorised Person. 

3. M/s Bajaj Finance Ltd. Opp. Old Cinema, Barnala through its Manager/Authorised Person.

4. Boshion Services Pvt. Ltd. Upper Ground Floor, Brice Palaza, K.C. Road, Barnala-148101 through its Managing Director/Authorised Person. 

5. CPP Assistance Services Pvt. Ltd. Ground Floor, Wing-A. Towe-A, Gold View Corporate Towers, Golf Course Road, Sector -42, Gurugram-122002 A (Haryana) through its Manging Director/Authorised Person. 

6. ICICI Lombard General Insurance Company Limited, Regd. Office ICICI Lombard House, 414, Veer Savarkar Marg, Near Siddhi Vinayak Temple, Prabhadevi, Mumbai-400025 through its Managing Director/Authorised Person.  

                       …Opposite Parties

Complaint Under Section 35 of Consumer Protection Act, 2019.

Present: Sh. A.S. Bahia counsel for complainant.

Opposite parties No. 1, 4 & 5 exparte.

Sh. Munish Kumar counsel for opposite parties No. 2 & 3.

Ms. Hardesh Rehal counsel for opposite party No. 6.

Quorum:-

1. Sh. Jot Naranjan Singh Gill : President

2.Sh. Navdeep Kumar Garg : Member

 

1.ORDER 

JOT NARANJAN SINGH GILL, PRESIDENT

The complainant namely Pritam Singh has filed the present complaint under Section 35 of the Consumer Protection Act 2019, (amended upto date) against M/s R.K. Traders and others (hereinafter referred as opposite parties).  

2. The facts leading to the present complaint are that the complainant had purchased one mobile set Make OPPO bearing IMEI No. 866778043458870 from opposite party No. 1 vide Bill No. 2858 dated 8.9.2018 for Rs. 23,990/- and the same was insured with opposite party No. 2 and paid premium vide policy No. 1M1797986. It is further alleged that on 16.7.2019 the said mobile set fell down and was broken and the complainant lodged the claim with the opposite party No. 1 and was directed to contact opposite party No. 3 and advised the complainant to send the mobile to Gurugram and the same was sent by complainant to Head Office of opposite party No. 3. It is alleged that till date the opposite parties have neither replaced the mobile nor has paid the insured value of the mobile. The complainant visited the opposite party No. 3 many times but with no response. The said act and conduct of the opposite parties caused great mental shock, pain, agony and harassment to the complainant, as such the opposite parties were deficient in rendering services and unfair trade practice. Hence, the present complaint is filed for seeking the following reliefs.- 

i) To replace the mobile set or in alternative refund the price of the mobile set being Rs. 23,990/-. 

ii) Further, to pay the amount of Rs. 20,000/- on account of compensation for harassment, mental agony and loss of crops suffered by the complainant and also pay Rs. 10,000/- as costs of proceedings.   

3. Upon notice of this complaint, the opposite party No.1 appeared and filed written version taking legal objections interalia on the grounds that the complaint is bad for non-joinder and mis-joinder of necessary parties because the opposite party No. 1 only sold the mobile to the Pritam Singh complainant, which was financed by Bajaj Finance Ltd., opposite parties No. 2 & 3 and the opposite party No. 1 received the amount of the mobile through opposite party No. 2 & 3 but the Pritam Singh get insured his mobile from CPP Group India vide Membership No. IM1797986 w.e.f. 8 Sept. 2019 to 7.9.2019 and received Rs. 2,574/- as premium of insurance. So, after the sale of above said mobile there is no relation or responsibility of the above said mobile. The complainant already lodged his complaint with opposite party No. 3 and sent his mobile to Gurgaon i.e. Head Office of opposite party No. 3 and the claim is pending with the opposite party No. 3. The complaint is not maintainable and the complainant concealed material facts etc. On merits, it is submitted that the complainant came to the opposite party No. 1 who advised the complainant to lodge complaint with opposite party No. 3. It is further alleged that as the mobile set is lying with the opposite party No. 3, so the opposite party No. 3 is bound to pay the claim of the complainant. All other allegations of the complaint are denied by the opposite party No. 1 and prayed for the dismissal of complaint against opposite party No. 1.

4. The opposite parties No. 2 & 3 also filed separate written version and taking preliminary objections on the ground that the complaint against the answering opposite parties is false, frivolous and filed with malafide intention and based on wrong information and not maintainable. It is further submitted that the opposite parties is a finance company providing loans to all the needy persons, thus the allegations raised by the complainant are towards the mobile phone which was defective and the complainant had taken up the matter already with the opposite party No. 1 for the repair. Further, the opposite party submits that the complainant had also availed the Insurance from the Insurance Company. It is further submitted that the entire details of how to register a claim is already mentioned in the certificate of insurance which was sent by the insurance company to the complainant on 14th September 2018 and in no way the complainant can state that he wasn't aware about the same. The complainant had issued NACH Mandate/Auto debit for the repayment of the installments and that the complainant has paid all the EMI's of both the loan accounts on time without any default i.e. on the 2nd date of very month except for EMI No. 7 which got dishonored due to insufficient funds interalia dated 2.4.2019 and the same was later paid in cash. Also the EMI No. 8 which was due on 2.5.2019 was paid in advance by the complainant on 18.4.2019. The total amount of EMI which was deducted from the account of the complainant per month is Rs. 2,104/- i.e. 1846/- towards the mobile phone and Rs. 258/- towards the insurance loan account. That both the loan accounts are closed as on date and No Objection Certificate has also been issued. Upon further enquiry from the insurance company the answering opposite parties came to know that the insurance claim of the complainant was rejected by the insurance company, the reason being that the description of the damaged mobile phone did not match with that of the physical asset. As per the Certificate of insurance was duly sent by the insurance company to the complainant on the email ID and mobile number of the complainant registered with the opposite parties i.e. PRITAMSINGHDNL55@GMAIL.COM and 7589891847. It is further submitted that the opposite parties have no role in approval or rejection of the insurance claim as the opposite parties is a mere financer and is not in the business of the insurance. The complainant should have made the insurance company a party to the said complaint as all the allegations have been raised against the insurance partner only and not this opposite parties. All other allegations of the complaint are denied. Therefore, there is no deficiency in service on the part of opposite parties No. 2 & 3 and prayed for the dismissal of complaint. 

5. The opposite party No. 4 filed written version on 25.1.2021 by taking preliminary objections on the grounds that the complaint is not maintainable against the answering opposite party etc. On merits, it is submitted that the dispute pertains to only insurance company i.e. opposite parties No. 2 & 3. So, the present complaint against the answering opposite party is liable to be dismissed with costs. All other allegations of the complaint are denied. Later on vide order dated 1.2.2022 the opposite party No. 4 was proceeded against exparte due to non appearance. 

6. The opposite party No. 5 was proceeded against exparte vide order dated 25.1.2021. Further, the opposite party No. 1 was also proceeded against exparte vide order dated 1.2.2022. Initially the opposite party No. 6 was proceeded against exparte vide order dated 28.3.2022, but later on vide order dated 3.5.2023 the opposite party No. 6 was allowed to join proceedings at this stage. 

7. The complainant filed rejoinder against the written version of opposite parties No. 1, 2, 3 & 4 and denied the averments as mentioned in the written version. 

8. To prove his case the complainant tendered into evidence his own affidavit Ex.C-1, copy of bill dated 8.9.2018 Ex.C-2, copy of courier receipt Ex.C-3, copy of No dues certificate Ex.C-4, copies of Job sheets Ex.C-5 & Ex.C-6, copy of Estimate Ex.C-7, copy of Membership Ex.C-8 and closed the evidence. 

9. The opposite party No. 1 tendered into evidence affidavit of Piyush Goyal Prop. Ex.O.P.1/1 and closed the evidence. 

10. The opposite parties No. 2 & 3 tendered into evidence copy of accounts Ex.O.P.2.3/1 to Ex.O.P.2.3/2 and closed the evidence. 

11. The opposite party No. 4 tendered into evidence copy of resolution/authorization letter Ex.O.P.4/1, affidavit of Lakhita Bansal Ex.O.P.4/2 and closed the evidence. 

12. We have heard the learned counsel for the parties and have gone through the record on file. Written arguments filed by the complainant, opposite party No. 2, 3, 4 and 6.

13. Ld. Counsel for the complainant argued that the complainant had purchased one mobile set Make OPPO bearing IMEI No. 866778043458870 from opposite party No. 1 vide Bill No. 2858 dated 8.9.2018 (Ex.C-2) for Rs. 23,990/- and the same was insured with opposite party No. 2 and paid premium vide policy No. 1M1797986. It is further argued that on 16.7.2019 the said mobile set fell down and was broken and the complainant lodged the claim with the opposite party No. 1 who was directed to contact opposite party No. 3 and advised the complainant to send the mobile to Gurugram and the same was sent by complainant to Head Office of opposite party No. 3. It is further argued that till date the opposite parties have neither replaced the mobile nor has paid the insured value of the mobile despite the fact that the complainant visited the opposite party No. 3 many times but with no reasons. The said act and conduct of the opposite parties caused great mental shock, pain, agony and harassment to the complainant, as such the opposite parties were deficient in rendering services and unfair trade practice.

14. Ld. Counsel for the opposite parties No. 2 & 3 argued that  the opposite parties is a finance company providing loans to all the needy persons, thus the allegations raised by the complainant are towards the mobile phone which was defective and the complainant had taken up the matter already with the opposite party No. 1 for the repair. It is further argued that the complainant had also availed the Insurance from the Insurance Company. It is also argued that the entire details of how to register a claim is already mentioned in the certificate of insurance which was sent by the insurance company to the complainant on 14th September 2018 and in no way the complainant can state that he wasn't aware about the same. It is further argued that the complainant had issued NACH Mandate/Auto debit for the repayment of the installments and that the complainant has paid all the EMI's of both the loan accounts on time without any default i.e. on the 2nd date of very month except for EMI No. 7 which got dishonored due to insufficient funds interalia dated 2.4.2019 and the same was later paid in cash and also the EMI No. 8 which was due on 2.5.2019 was paid in advance by the complainant on 18.4.2019. It is also argued that the total amount of EMI which was deducted from the account of the complainant per month is Rs. 2,104/- i.e. 1846/- towards the mobile phone and Rs. 258/- towards the insurance loan account (As per Ex.O.P-2.3/1 and Ex.O.P-2.3/2) and both the loan accounts are closed as on date and No Objection Certificate has also been issued. It is further argued that the opposite parties have no role in approval or rejection of the insurance claim as the opposite parties is a mere financer and is not in the business of the insurance. 

15. Ld. Counsel for the opposite party No. 6 argued that the claim of the claimant was rightly repudiated by opposite party No. 6 i.e. ICICI Lombard General Insurance Company Ltd., and the same was intimated to opposite party No. 5 CPP Assistance Services Pvt. Ltd., vide letter dated 30.9.2019 and the reasons for the non tenability of the claim was that circumstances of the loss not covered under the policy. It is further argued that the estimate cost of repair of the handset of claimant Pritam Singh is shown Rs. 22,377/- by Boshion Services Pvt. Ltd., vide estimate dated 17.7.2019 (Ex.C-7). However, the handset whose total cost was Rs. 23,990/- on 8.9.2018 and the repair cost demanded by the claimant is Rs. 22,377/- on 17.7.2019 approximately after one year, which clearly shows that the estimate prepared by the claimant Pritam Singh is totally fake and is inconnivance with the opposite party No. 4 i.e Boshion Services Pvt. Ltd.

16. In order to prove his case the complainant has placed on record copy of bill dated 8.9.2018 Ex.C-2 which shows the total price of the handset is 23,990/- and the same is not disputed between the parties. The complainant further placed on record the copy of courier receipt Ex.C-3 which shows that the complainant has sent the handset to opposite party No. 3. The complainant also placed on record copy of No dues certificate Ex.C-4, which shows that the complainant has paid all the EMIs to the opposite parties No. 2 & 3. The complainant further placed on record copies of job sheets Ex.C-5 & Ex.C-6, which shows that the complainant has approached the service center of mobile company i.e. opposite party No. 4 for the repair of his damaged mobile on 4.6.2019 and 17.7.2019. Moreover, in Ex.C-6 in the column of Remark it is mentioned that the “handset cannot power on, touch with Icd and battery cover damaged thats why software version 000000”. The complainant further placed on record copy of estimate dated 17.7.2019 of opposite party No. 4 Ex.C-7, which shows the estimated amount of Rs. 22,377/- with the parts description, price and other expenses. 

17. So, from the perusal of file it is established that the handset of the complainant was damaged on 16.7.2019 and in this regard he approached the service center of mobile company on 4.6.2019 and 17.7.2019 because the handset is fully insured with the opposite party No. 6 and this fact is admitted by the opposite parties No. 2 & 3 (who have financed the above said handset) in their written version in Para No. 2 of merits that the total amount of EMIs which was deducted from the account of the complainant per month is Rs. 2,104/- i.e. 1846/- towards the mobile phone and Rs. 258/- towards the insurance loan account and this fact is also proved from the perusal of copies of statement of accounts Ex.O.P-2.3/1 and Ex.O.P-2.3/2. Therefore, it is proved on the file that the handset of the complainant was fully insured with the opposite party No. 6 i.e. ICICI Lombard General Insurance Company Limited. However, the opposite party No. 6 insurance company has failed to place on record any cogent evidence to prove the fact that the “circumstances of the loss not covered under the policy”. Even, no repudiation letter has been placed on record in this regard by the opposite party No. 6. Moreover, the opposite party No. 6 has also failed to place on record any terms and conditions of the policy. 

18. As a result of the above discussion, the present complaint is partly allowed against the opposite party No. 6 and the opposite party No. 6 is directed to replace the mobile set in question with a new one of the same make and model or to refund the price of the mobile set i.e. Rs. 23,990/- to the complainant. The opposite party No. 6 is also directed to pay the amount of Rs. 4,000/- as consolidated amount of compensation and litigation expenses to the complainant.  

19. Compliance of the order be made within the period of 45 days from the date of the receipt of the copy of this order.

20. Copy of this order be supplied to the parties free of costs as per rules. File be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN COMMISSION:

       13th Day of March, 2024

 

            (Jot Naranjan Singh Gill)

            President

 

(Navdeep Kumar Garg)

Member