BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 216 of 2017
Date of Institution : 24.8.2017
Date of Decision : 29.1.2018.
Shankar Lal son of Shri Ghisa Ram, resident of village Nagoki, Tehsil and District Sirsa.
……Complainant.
Versus.
- The New India Assurance Company Limited, 123, Second Floor, Block A, Korenatham Tower, Sector -62, Noida- 201301 through Competent Authority.
- Infocus Service Centre, near Samsung Service Centre, Dwarkapuri, Sirsa, District Sirsa through Incharge.
- Satyam Mobile, Sadar Bazar, Sirsa through Incharge
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. Neeraj Mehta, Advocate for the complainant.
Sh. Ravinder Goyal, Advocate for opposite party No.1.
Opposite party no.2 exparte.
Sh. Sanjay Sihag, proxy counsel for Sh.H.S. Raghav, Advocate for opposite party no.3.
ORDER
The case of the complainant in brief is that complainant had purchased a mobile Infocus M535 from opposite party no.3 for an amount of Rs.9990/- vide bill No.464 dated 5.9.2016 with guarantee of one year and at that time op no.3 got insured the above said mobile from opposite party no.1. That about month ago, the jack of the mobile became defective and besides this screen also became defective from inside and it started heating. The complainant approached op no.2 i.e. service centre and complained about the problem in the mobile but after checking of the mobile op no.2 refused to repair the same and stated that there is manufacturing defect in the mobile and asked to take the same to the company for replacement and refused to get replacement of the same from the company. Thereafter the complainant requested the ops several times either to repair the mobile in question or to replace the same but the ops postponed the matter on one pretext or the other and finally refused for the same. That due to act and conduct of the ops, the complainant has suffered a lot of harassment and the ops have caused deficiency in service and unfair trade practice towards the complainant. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement raising certain preliminary objections. It is submitted that complainant has never informed the answering op about the alleged defects in his mobile phone which was required to be given to the op within 48 hours from the date and time of loss, nor ever lodged any claim with answering op at any point of time. The complainant has also not followed the claim procedure as prescribed in the said policy, which prescribes that in case of partial loss, repairs have to be conducted from authorized service centre or other service centre as defined there under while in case of BER case, original repair estimate needs to be taken from authorized service centre or other service centre. In this case, the complainant has failed to provide the original repair estimate to the answering op. Hence, the complaint is wholly pre-mature qua the answering op, as such the same cannot proceed any further. It is further submitted that as per case set up by the complainant, his mobile phone has developed manufacturing defect and has not suffered any accidental damages, therefore, the manufacturer is liable to indemnify the claim of the complainant and the claim of the complainant lies only with the manufacturing company of mobile phone. It is further submitted that guarantee/ warranty on a product is given by the manufacturing company and not by the insurer. The answering op is liable to indemnify the insured within the scope of provisions of the Insurance Policy in case of any physical damage to the insured mobile phone.
3. Opposite party no.2 filed reply raising certain preliminary objections. It is submitted that complainant has got no cause of action to file the present complaint against the answering op because neither he ever visited the centre of op no.2 nor he ever contacted the op no.2 for the repair of the mobile allegedly purchased by him from op no.3. The op no.2 is the authorized customer care centre of the Infocus Mobile having its office at Dwarkapuri Sirsa and its work is to satisfy the customers by repairing their mobiles but in the present case the complainant never visited the op no.2 neither for repair of his mobile nor for any other purpose. It is further submitted that from the perusal of the complaint it is clear that the mobile in question was purchased by complainant in the month of September, 2016 and the warranty/ guarantee of the same was for one year. The op no.2 being the authorized customer care centre can repair the mobile which are under the period of warranty/ guarantee and otherwise also if are out of warranty. Presently the mobile of complainant is out of warranty and op no.2 cannot be asked to get the same repaired free of cost. It is further submitted that had the complainant visited the office of op no.2, he must have been satisfied by the answering op. Remaining contents of complaint are also denied.
4. Opposite party no.3 filed its separate written statement raising certain preliminary objections. It is submitted that mobile set purchased by op no.3 from its manufacturer/ distributor in a sealed and packed condition and then sell out the same as he received from the Distributor/ manufacturer on the nominal profit. The answering op no.3 has never given any guarantee/ warrantee to the complainant. Moreover, manufacturing company always mentions the guarantee/ warrantee conditions on the log book/ manual contained in Box of mobile set which ought to go through by each customer and the manufacturer also mentions the list of their authorized service centre, which are being run under the control of manufacturing company for providing time to time services to the customers and they also advise to the customers to get their complaint redressed from the authorized service centre, meaning thereby that the dealers after sale of mobile set on behalf of company, has no interference between the customers and service centers. The op no.3 never sold any insurance to the complainant as alleged rather it was the complainant who wanted to purchase the insurance policy for the same. Remaining contents of the complaint are also denied.
5. The complainant produced his affidavit Ex.CW1/A, copy of bill Ex.C1, copy of email Ex.C2, copy of aadhar card Ex.C3, copy of email Ex.C4. On the other hand, op no.1 produced affidavit of Sh. K.S. Chaudhary, Sr. Divisional Manager Ex.R1 and copy of policy Ex.R2. Ld. counsel for op no.3 has suffered a statement that written statement filed on behalf of op no.3 be read in evidence. Whereas, op no.2 after filing reply opted to be proceeded against exparte.
6. We have heard learned counsel for the parties and have perused the case file carefully.
7. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A wherein he has reiterated all the averments of his complaint. He has deposed in his affidavit that he purchased a mobile from opposite party no.3 for a sum of Rs.9990/- vide bill No.464 dated 5.9.2016. He has further deposed that about one month ago, the jack and screen from inside of the mobile in question became defective but the service centre i.e. op no.2 refused to carry out necessary repairs on the mobile on the ground that there is manufacturing defect in the mobile and same cannot be repaired. On the other hand, op no.1 has furnished affidavit of Sh. K.S. Chaudhary, Senior Divisional Manager as Ex.R1 who has deposed on the lines of written statement of op no.1 and also placed on file copy of policy Ex.R2. It is proved fact on record that complainant purchased the mobile set from op no.3 on 5.9.2016 and after sometime, same suffered from some defect in the jack and screen as a result of which same did not work properly and he approached service centre of op no.2 who returned the mobile with the observation that there is manufacturing defect in the mobile. Since the mobile was within warranty period and it is legal obligation of the ops no.2 and 3 to carry out necessary repairs in the mobile and non providing of the services to the complainant clearly amounts to deficiency in service. However, as there is no dispute with insurance company i.e. op no.1, the complaint qua op no.1 stands dismissed.
8. In view of the above, we allow the present complaint qua opposite parties no.2 and 3 and direct them to carry out necessary repairs in the mobile of the complainant and to make it defect free even by replacing parts, if any without costs within 15 days of the production of the mobile by the complainant. In case it is found by the engineer of the ops no.2 and 3 that mobile in question is not repairable, the ops no.2 and 3 shall be liable to replace the mobile in question with a new one of same price or will have to refund the price of the mobile within further period of 15 days. We also direct the ops no.2 and 3 to pay a sum of Rs.1000/- as composite compensation and litigation expenses to the complainant. Both the ops no.2 and 3 are jointly and severally liable to comply with this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:29.1.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
