Delhi

North East

CC/508/2014

Vikender Aggarwal - Complainant(s)

Versus

M/s Sai Electronices - Opp.Party(s)

02 Apr 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 508/14

 

In the matter of:

	Shri Vikender Aggarwal S/o Raj Kumar R/o A-77/10 Dilshad Garden Delhi-110095	Complainant
	Versus
1.           2.	M/s. Sai Electronics Through its Prop. Shop No. 28, Pocket-B-E DDA Market, Dilshad Garden Delhi-110095   M/s. New Mobile Care India Pvt Ltd. Through its director WZ-109, street No.1, Sadh Nagar, Palam Colony, Delhi-110045	Opposite Parties

 

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

19.12.2014 02.04.2019 02.04.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Shorn of unnecessary details, facts relevant for the disposal of the present complaint are that the complainant had purchased a mobile handset model Apple I phone 5C in black colour of 16 GB bearing IMEI No. 358551052372281 from OP1 retail outlet / seller on 06.12.2013 for a sum of Rs. 41,900/- inclusive of VAT vide invoice no. SE / RI / 13 / 18265. The said mobile came with a warranty of one year from date of purchase as per the warranty card issued by OP1. At the time of purchase of the said mobile, the complainant was induced by OP1 to get the mobile handset insured against accidental damage  / water damage from OP2 and the complainant acting upon the representation of OP1 and assurance of security of his mobile handset got the same insured with OP2 vide Cashless Protection Plan on payment of Rs. 4,190/- (Rupees Four Thousand One Hundred & Ninety only) as premium for the said cover of two years and extended  service warranty provided by OP2 vide Receipt Sl. No. NMC 28210 dated 06.12.2013. However, when the subject mobile started giving auto switch off, hang up and non functional touch screen problems and the complainant approached the OPs for rectification of the said defect, both OPs failed to extend any support to the complainant. The complainant approached OP3, service centre for repair of the subject mobile and deposited the same on 17.10.2014 vide jobcard no. 5381, but OP3 too failed to rectify the defect therein and returned the handset unrepaired to the complainant. All this time, the subject mobile was under warranty. The complainant faced difficulty and inconvenience due to non functional mobile and inaction on the part of OPs despite having sold and insured the said mobile. The complainant issued a legal notice to the OPs on 10.11.2014, however, OPs failed to responded  / act thereupon despite receipt thereof and lastly the complainant was compelled to initiate legal proceedings against the OPs by way of present consumer complaint alleging deficiency of service and prayed for issuance of direction against the OPs to refund the cost of the mobile alongwith  the insurance premium totaling Rs. 46,090/- alongwith interest thereon @ 18% p.a. and, compensation of Rs. 50,000/- for mental and physical harassment and Rs. 11,000/- towards cost of litigation.

The Complainant has attached copy of retail invoice issued by OP1 towards purchase of mobile, copy of insurance certificate issued by OP2 under stamp and seal of OP1 granting coverage against liquid and accidental damage for two years and extended service warranty with respect to the mobile in question, copy of job sheet no. 5381 dated 17.10.2014 issued by OP3 towards deposit of mobile phone for repair and copy of legal notice to OPs dated 10.11.2014 with postal receipts.

2. Notices were issued to OPs on 05.01.2015. However OP1 & OP2 failed to appear despite service effected on them on 12.01.2015 and were therefore proceeded against ex-parte vide order dated 07.05.2015. Notice was OP3 returned unserved with postal remark LEFT and since complainant recorded his statement and moved an application on 08.09.2015 that whereabouts of OP3 are not known to him, OP3 be deleted from the array of parties, the application was allowed and OP3 was deleted.
3. Evidence by way of affidavit was filed by the complainant on 06.10.2015 in reiteration of his grievance and exhibited copy of invoice as Ex-CW1/A, Cashless Protection Plan as Ex-CW1/B and copy of job card as Ex-CW1/C and copy of Legal Notice dated 10.11.2014 alongwith its postal Receipt as Ex CW1/D (colly).
4. The complainant filed written arguments on 11.05.2016 reaffirming contents of his complaint against the OPs.
5.  Written arguments were filed by the complainant in which the complainant reinforced his grievance against the OPs and for non redressal of his problem of liquid damaged handset by both the OPs despite being seller and insurer respectively thereof and duty bound to do so and prayed for relief claimed. Complainant further argued that he was covered as per the warranty terms and conditions and is a consumer within the definition in Consumer Protection Act thereby entitling him for compensation from OP1 & OP2 since it was their joint responsibility to remove defects of the said mobile but both OPs miserably failed to perform their respective responsibility and therefore prayed for relief claim as being entitled thereto.
6. We have heard the arguments addressed by complainant and have perused the documents placed on record on which perusal a key observation has come to light that the insurance cover note issued by OP2 bears the seal of OP1 which clearly establishes that OP1 and OP2 had mutually beneficial business relationship/ tie up and at behest of OP1, the complainant was coerced into taken insurance cover from OP2. The said exercise was for business promotion of each other in the market for commercial gains. Therefore the role of OP1 and OP2 in the present complaint and inter se is rather collusive in as much as furthering each other’s commercial interests.        

The subject mobile phone was duly insured with OP2 which is proven beyond doubt from material evidence placed on record by the complainant, corroborated / endorsed by OP1 and unrebutted by OPs due to their willful non appearance.

7. In the present case since the subject mobile was duly insured with OP2 at the behest of OP1 as can be seen in the insurance certificate, both OP1 and OP2 were liable to pay the insurance claim amount to the complainant since OP1 had received consideration amount for the said handset and OP1 had received premium amount for insuring the said handset from the complainant but both OPs failed to discharge their contractual liability towards the complainant which in our view is act of deficiency of service and unfair trade practice.  
8.  We therefore direct OP1 and OP2 as seller and insurer respectively jointly and severally to refund the cost of the mobile phone i.e. Rs. 41,900/- alongwith insurance premium amount of Rs. 4,190/- totaling Rs. 46,090/- to the complainant alongwith interest on the total amount thereon @ 9% p.a. from the date of filing of complaint till realization. We further direct OP1 and OP2 jointly and severally to pay compensation of Rs. 7,000/- towards mental agony and harassment suffered by the complainant and Rs. 3,000/- towards cost of litigation to the complainant. Let the order be complied by OPs within 30 days from the date of receipt of copy of this order.                                 
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.  File be consigned to record room.
11.  Announced on 02.04.2019 

 

 

(N.K. Sharma)           President

(Sonica Mehrotra)                       Member