Delhi

North East

CC/517/2014

Deepak Jain - Complainant(s)

Versus

M/s Spice Retail Ltd. - Opp.Party(s)

07 Dec 2018

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. 517/14

 

In the matter of:

 

	Shri Deepak Jain S/o Shri K.P. Jain R/o 1/6997 Gali No.3, Shivaji Park, Shahdara Delhi-110032.	Complainant
	Versus
1.         2.           3.	M/s Spice Retail Ltd Shop No.1/9539 Main Hanuman Road, Pratap Pura Shahdara, New Delhi-110032.   M/s Soni India Pvt. Ltd A-31, I-Area, Mohan Co-operative Industrial Estate, Mathura Road, Okhla Phase-II, Okhla Industrial Area, New Delhi-110020.   M/s Gadget Cops A-83, Noida, Sector-2 Noida-201301.	Opposite Parties

 

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

26.12.2014 07.12.2018 07.12.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts germane to the present complaint as culled out by the complainant are that the complainant had purchased Sony Experia T2 Mobile phone manufactured by OP2 company from OP1 dealer on 25.04.2014 vide invoice no. 105178758 for a sum of Rs. 24,449/- inclusive of mobile insurance plan vide policy No. HS1341044 taken from OP3 @ Rs. 799/- for one year. However, the said mobile became dysfunctional soon after purchase and was repeatedly sent for repairs to the authorized service centre of OP3 on 15.07.2014 vide Fault Completion Report (FCR) No. 6139, 25.08.2014 vide FCR No. 7244 and lastly on 01.11.2014 vide FCR No. 9060 for problems of mic-speaker, slow touch, hanging problem, poor camera clarity, charging problem, call speaker problem and music speaker not working. After every repair, the executive of OP3 would assure the complainant of effective working of the mobile which was actually a moon shine. The complainant contacted OP1 and narrated his grievance but was redirected to contact OP3 as the insurer of the said mobile phone. After the last submission of the mobile phone by the complainant with OP3 on 01.11.2014, the complainant has never got the delivery of the subject mobile phone. The complainant had sent legal notice dated 11.11.2014 to all the OPs but the same went un-replied to despite service. Lastly feeling aggrieved on account of dereliction, neglect on the part of OPs to replace/ repair and deliver back the said mobile phone which was defective one causing inconvenience, hardship, mental agony and financial loss to the complainant, the complainant was constrained to file the present complaint before this Forum against the OPs and prayed for issuance of directions for return / refund of the said mobile phone alongwith interest @ 24% from the date of purchase, Rs. 30,000/- towards monetary loss due to non connectivity and    Rs.3 Lacs towards mental tension, anxiety suffered by the complainant.

Complainant has attached copy of invoice dated 25.04.2014 for purchase of mobile phone, FCRs dated 15.07.2014, 25.08.2014, 01.11.2014 and copy of legal notice dated 11.11.2014 with postal receipts.

2. Notices were issued to the OPs on 10.02.2015. OP3 filed its written statement on 30.03.2015 in which it admitted the factum of the complainant having availed the service of protection plan vide policy no. HS1341044 with one year term plan for Sony D5322 having IMEI No. 351867062734360. OP3 also admitted to the first complaint dated 08.07.2014 for network not coming and incoming and outgoing voice problem with the aforementioned mobile phone when it was picked up by its executive as per terms and conditions for pro care coverage and was duly repaired at its service centre and dispatch to the complainant. OP3 also admitted to the second complaint dated 21.08.2014 and third complaint dated 28.10.2014 for incoming call voice slow non working of speaker when on both occasions the mobile phone was picked by company executive, handed over to service centre for repairing and dispatch to the complainant but on the third delivery, the complainant denied acceptance of the mobile phone and misbehaved with the delivery boy and demanded a brand new mobile phone from OP3. OP3 further submitted that it had repaired the mobile phone as per the terms and conditions and gave all possible service by arranging pick up and drop of the mobile phone to the complainant and the terms and conditions of the protection plan were agreed to by the complainant himself after reading, understanding, agreeing and signing them. OP3 lastly submitted that there was no provision of giving any reimbursement which was paid for repairing purpose and neither do they provide any replacement of the mobile phone and prayed for directions to the complainant to accept the repaired mobile phone and close the complaint with penalty on the complainant.

OP2 entered appearance on 10.03.2015 and filed its written statement on 16.10.2015 in which it took the preliminary objection that there is no deficiency of service or unfair trade practice on its part since the complainant had neither approach OP2 or its authorized service centre for redressal of his grievance even once regarding the mobile phone in question. OP2 submitted that it had communicated with the complainant vide letter dated 04.08.2015 requesting him to despite his mobile phone for inspection and would be provided necessary service support but the complainant did not respond to the said letter and has instead unfairly impleded OP2 in the present complaint without any cause for unjust enrichment to himself. OP2 further submitted that without inspection of the mobile phone, OP2 cannot ascertain or redress any alleged defect therein. OP2 denied the allegation of the complainant of ill treatment, dereliction, failure and neglect as completely baseless since OP2 had no records with respect of the mobile phone of the complainant in absence of which OP2 could not have possibly responded and / or aided the complainant with his allege grievances. Lastly OP2 submitted that it has no association whatsoever with OP3 who is an independent insurer and denied that the complainant was sold a defective mobile phone by OP2 and prayed for dismissal of the complaint.

OP1 was served on 07.01.2015. OP3 did not appear after filing written statement in March 2015 and both were proceeded against ex-parte vide order dated 09.12.2015.

3. Rejoinder was filed by the complainant to the written statement of OP3 in which the complainant rebutted the defence taken by OP3 and submitted that the OPs have sold him a defective mobile phone which was giving problem from the date of purchase and denied that the mobile phone was ever picked up by executive of OP3 as per terms and conditions of pro care insurance policy coverage. Complainant further contended that the mobile phone was defective and did not work despite repairing and denied the allegation of non acceptance of the repaired mobile phone and misbehavior with the delivery boy of OP3. The complainant alleged that the all OPs were hand and glove with each other in selling a defective mobile and insurance thereon and then shifting the blame on to each other to harass innocent buyers. The complainant further submitted that OP3 had never informed him of any terms and conditions of the protection plan at the time of selling the same and reiterated his allegation against the OPs in the complaint.
4. Rejoinder to the written statement of OP2 was filed by the complainant in rebuttal to the defence taken by OP2 by alleging that there was clear deficiency of service and unfair trade practice on the part of OP2 giving proper cause of action for the present complaint against OP2 for selling a defective mobile phone through OP1 and OP3 having failed to cure its defects ultimately resulting in harassment, mental torture and agony to the complainant. Complainant denied receipt of any such letter dated 04.08.2015 from OP2 and stated that OP2 had never contacted the complainant through any means. The complainant further submitted that he is an educated person but not a mobile engineer to check any manufacturing defect therein but the same can be made out on use of any handset which can be seen from regular complaints made to OP3 when the mobile was repeatedly sent for repairs at the service centre but could not be repaired due to being a highly defective one. Lastly the complainant submitted that he had contacted every possible OP and had issue a legal notice also but none of the OPs responded for the same and therefore the complainant was forced to get into the present uncalled for litigation owing to deficiency of service and unfair trade practice on the part of OPs.
5. Evidence by way of affidavit was filed by the complainant exhibiting the invoice, FCRs and legal notice with postal receipt.
6. Evidence by way of affidavit was filed by OP2 exhibiting letter dated 04.08.2015 to the complainant requesting the complainant to get the mobile phone in question inspected at their near authorized service centre (ASC).
7. Written arguments were filed by both the parties in reiteration / reinforcement of their respective grievance / defence.
8. We have heard the rival contention of both the parties and have given our anxious consideration to the material placed on record.

The main issue that merits consideration in the present case is that in the event of the mobile phone having being duly insured, is there any liability for replacement / refund arising against the manufacturer thereof. Admittedly, it is not in dispute that the subject mobile phone was duly insured with OP3 which was acknowledged by OP3 too in its written statement. The subject mobile phone was deposited for repairs with OP3 in July – August – November 2014 and each time barring the last was handed over/accepted by the complainant. The Hon’ble National Commission in Samsung India Electronics Pvt Ltd Vs Saurabh Kaporia and Ors IV (2016) CPJ 227 (NC) had observed that the manufacturer company is under liability to explain the terms and condition as featuring in the service guide given with the mobile handset in cases which are not that of insurance and had modified the order of Hon’ble State Commission which had ordered for free of cost repair of the handset to the extent of repairing the handset on payment of cost and extension of warranty period thereon by the OP.

9. In the present case since the subject mobile was duly insured with OP3 in whose possession it is since November 2015 and by its own declaration in written statement the same was duly repaired and ready to be handed over to the complainant, we direct OP3 to hand over the repaired mobile phone in satisfactory working condition to the complainant with remaining / renewed nine month warranty thereon since the mobile had only functioned for initial three months of purchase. We further direct OP3 insurer to pay compensation of Rs. 5,000/- towards mental agony and harassment suffered by the complainant. OP1 and OP3 being the seller and manufacturer of the mobile are absolved of the liability in view of mobile having being insured with OP3.                               
10.  Let the order be complied within 30 days from date of receipt of copy of this order.
11.  Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations, 2005.
12.  File be consigned to record room.
13.  Announced on 07.12.2018 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member