BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.89 of 2016

Date of Instt. 23.02.2016

Date of Decision:29.03.2017

Jatinder Singh aged about 27 years son of Sukhdev Singh resident of Village Shatabgarh, PO: Wara Jodh Singh, District Kapurthala, Punjab.

..........Complainant

Versus

1. M/s R.S. Telecom, Gupta Telecom Building, Shop No.22, Doaba Chowk, K.M.V. College Road, New Market, Jalandhar- 144004.

2. The New India Assurance Company Limited, Banglore, 2-B Unity Bldgs Annexe, P. Klinga Rao Road, Banglore-560027.

3. M/s Appsdaily Solutions Private Limited, HO:D3137-39, Oberoi Garden Estates, Chandivali Farm Road, Andheri (E), Mumbai-400072 having its Branch Office at:Jalandhar, Punjab.

........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh.Parminder Sharma (Member)

Present: Complainant in person.

Opposite Party No.1 and 3 exparte.

Sh. AK Arora, Adv and Sh. Nitish Arora, Adv Counsel for OP No.2.

Order

Karnail Singh (President)

1. This complaint filed by complainant with the prayer that he has purchased one mobile Handset Make Samsung A500 having Serial No.RF8G11P1T4X (356320062767159), Model Number SM-A500GZKDINU, IMEI No.356320062767159 from the OP No.1 having Shop No.22, Near Doaba Chowk, K.M.V College Road, Jalandhar 144004, Punjab vide Bill number 2823 dated 31.03.2015 for Rs.25,900/-. That the seller got insured his above said mobile handset from the opposite party No.2 New India Assurance Co. Ltd., through OP No.3 their channel partner M/s Appsdaily solutions Private Limited, Mumbai having their branch office at Jalandhar, Punjab vide Insurance Policy Number 67030246142400000008 covering all types of damages to the handset. The screen was damaged and the complainant lodged its claim with the OP No.3. The handset was returned to the complainant by OP No.3 with the remarks Handset Activation Date Mismatch. It was stated that the mobile set was purchased on 31.03.2015 but the same was activated on 04.02.2015, hence no claim can be entertained. The complainant approached the opposite party No.1 and complained that he has been cheated by the OP No.1 because they have sold old/used/pre-activated handset as a result of which his claim is refused by the insurer. The OP No.2 has also cheated the complainant because the OP deliberately and knowingly insured the used set just to earn insurance premium so the OP No.2 is also involved in this whole incident and both the parties in connivance with each other have cheated the complainant and caused financial loss and mental agony and harassment and further prayed that the OP be directed to either replace the handset or pay back the entire bill amount alongwith insurance charges to the complainant and also pay Rs.50,000/- on account of compensation/penalty and further pay Rs.10,000/- as litigation expenses.

2. Notice of the complaint was given to the opposite parties but despite service, opposite party No.1 did not come present and ultimately, it was proceeded against exparte.

3. Whereas opposite parties No.2 and 3 appeared through their counsel and OP No.2 contested the complaint by taking preliminary objections that there is no deficiency of service and unfair trade practice on the part of the answering opposite party, that deemed the present complaint is not maintainable against the answering opposite party and further alleged that there are allegations of cheating by OP No.1 with the complainant as detailed in para No.4 of the complaint and as such the allegations cannot be decided in a summary manner and cannot be decided by this Forum and further alleged that the handset was purchased by complainant on 31.03.2015, while it was activated on 04.02.2015 i.e. prior to the date of purchase of handset by the complainant. As per terms and conditions of policy of insurance, the insurance is valid if the mobile application of Apps Daily is loaded/installed within 15 days from the date of purchase. Thus the claim of the complainant was repudiated as per terms and conditions of policy of insurance. On merits, all the averments made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.

4. Opposite party No.3 appeared and filed separate written reply whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable as the complainant has not come to this Forum with clean hands and further alleged that complainant was provided a complete kit by OP No.1, the kit is sealed and contains the terms and conditions and the insurance, the procedure mentioned therein is to be followed for lodging of the complaint in case of damage, theft or burglary of the said product and further alleged that the present case of the complainant has adopted the procedure and the complainant has filled in the forms for claiming the amount from OP No.2 and the OP No.2 informed the complainant that the claim cannot be paid as the activation date of the mobile is prior to the date of purchase i.e. the mobile was purchased on 31.03.2015 but the activation date of mobile is 04.02.2015. That no cause of action has accrued against the answering OP No.3 and further alleged that insurance is provided by the New India Assurance Company Limited, Banglore i.e. OP No.2 and the OP No.2 is solely responsible to indemnify the loss but subject to terms and conditions and the procedure mentioned in the user guide and further alleged that the present complaint is liable to be dismissed for want of non-joinder of answering parties i.e. manufacturer has not been impleaded as one of the parties. On merits, all the averments made in the complaint are categorically denied. Thereafter when the case was fixed for evidence of OP No.3 but none has come present on behalf of OP No.3 and ultimately he was proceeded against exparte.

5. In order to prove his case, complainant himself tendered into evidence affidavit Ex.CA alongwith some documents Ex. C1 to Ex.C4 and then closed the evidence.

6. Similarly, counsel for opposite party No.2 Sh. AK Arora, Adv tendered into evidence affidavit Ex. OP2/A and some documents of Insurance Policy as Ex.OP2/1, Policy Clauses as Ex.OP2/2 and Activation date of mobile loaded from site of Samsung as Ex.OP2/3 and closed the evidence on behalf of opposite party No.2.

7. We have heard the complainant in person and learned counsel for the OP and also gone through the case file very minutely.

8. From the respective submissions of learned counsel for the parties it has become clear that the complainant Jatinder Singh purchased a Mobile make Samsung A500 from OP No.1 after making a payment of Rs.25,900/- and its receipt/invoice was also issued by the OP No.1 which is available on the file Ex.C1. The date of aforesaid invoice is very important in this case which is apparently dated 31.03.2015 and at the time of purchase the said mobile was insured from OP No.2 through OP No.3 by the dealer i.e. OP No.1 and these factum has not been denied by OP No.2 and 3 rather the claim of the complainant was repudiated by OP No.2 vide repudiation letter Ex.C3 on the ground that the date of purchase and date of activation are mis-match. As per the version of the complainant, there is a manufacturing defect in the mobile set because without any fault on the part of the complainant the screen of the mobile set was damaged and as per insurance policy, the complainant submitted a claim to OP No.2 but OP No.2 repudiated the claim of the complainant on the ground as mentioned above, then complainant is having no alternative except to approach OP No.1 dealer for replacing the damaged set but who refused to do so and now question remains whether there is fault on the part of the OP No.1 or the claim of the complainant is repudiated by the OP No.2 wrongly or rightly for that purpose it is to be seen the date of purchase of the mobile set which obviously as per invoice Ex.C1 is 31.03.2015 if purchase of date is 31.03.2015 then how the mobile set was activated on 04.02.2015 as alleged by OP No.2 in the repudiation letter. So, it means that the old mobile set was sold to the complainant by the OP No.1 dealer and there is even not any fault on the manufacturing firm and the matter can be disposed of without impleading the manufacturing firm and therefore from the over all circumstances, it has become clear that there is a fault on the part of the OP No.1 dealer who sold the old mobile set to the complainant.

9. Apart from the above, the main contention of the OP No.2 is that the complainant himself took a plea in the complaint that a fraud has been committed with the complainant and if the plea of fraud comes on the file, the jurisdiction of the District Forum is barred and the matter should be referred to the Civil Court, in support of this submission, the learned counsel for the OP No.2 made reliance a pronouncement of State Commission, Chandigarh (U.T.) cited in 2010(4) CLT 134 Raghuvir Singh Vs. Branch Head, Axis Bank and another and State Commission, Chandigarh (U.T.) cited in 2010(1) C.P.J. 82 Vipin Batra Vs. State Bank of India and Anothers.

10. We have gone through above plea of OP No.2 and find that simply incorporating a word fraud in the complaint is not sufficient to conclude the plea of fraud has been taken, rather it is to be ascertained whether it requires lengthy evidence as well as cross-examination but in this case no such like evidence is required and as such the plea of fraud virtually remains un-fair trade practice on the part of the OP No.1 who sold the old mobile set to the complainant. So, with these observations, we find that the aforesaid judgments as referred by counsel for OP No.2 are not applicable in the present case.

11. In the light of the above detailed discussion, the complainant is able to establish the charges and accordingly the complaint of the complainant is partly accepted and OP No.1 is directed to replace the mobile set of the complainant of same model and further pay compensation of Rs.3000/- and litigation expenses Rs.2000/-. The entire compliance be made within one month from the date of receipt of copy of order, failing which the complainant is entitled to get interest on the aforesaid amount of Rs.5000/- @ 9% from the date of filing complaint till realization. Complaint could not be decided within stipulated time frame due to rush of work.

12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

29.03.2017 Member President