Delhi

North

RBT/CC/194/2022

NARESH - Complainant(s)

Versus

ONE ASSIST CONSUMER SOLUTION PVT LTD - Opp.Party(s)

10 May 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

 RBT/CC No.: 194/2022

                       

 In the matter of

 

Sh. Naresh

S/o Sh. Ram Pall

R/o G-5/13, Sector-16

Rohini, Near MCD School

New Delhi-110089                                               …                     Complainant                                                     

 

vs

 

One Assist Consumer Solutions Pvt. Ltd.

707-709, ACME Plaza,

Opp. Big Cinema

Andheri Kurla Road, Andheri Solutions Pvt. Ltd.

Andheri (E) Mumbai-400059                                 …                Opposite Party

 

ORDER

                                               10/05/2023

 

Ashwani Kumar Mehta, Member:

 

1.       The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that Complainant had purchased a  HTC820 mobile phone, bearing IMEI No. 356059061538456 against payment of an amount of Rs.19,099/- vide invoice No. 137308031-292850 dated 01.08.2015  which was insured with OP/One Assist consumer Solutions Pvt. Ltd. 707-708-709, ACME Plaza, Opp. Big Cinemas, Andheri Kurla Road, Andheri (E) Mumbai-400059. On 14-09-2017, on the complaint of the complaint for defects in Voice/speaker in the phone, the OP collected handset from his residence on (G-5/13 Sector-16 Rohini Delhi) vide receipt no.61097 on 14.09.2017 for removal of defects within  48 hrs but the OP did not responded inspite of the  e-mail on 09.11.2017. The complainant also lodged complaint in Mediation Centre, Parliament Street, New Delhi but none from OP turned up there despite service of the notice. Therefore, the complainant has preferred this complaint for directing the OP to :-

 

1. Pay Rs.19,099/- (Nineteen Thousand Ninety Nine) being the cost of the said mobile handset to the complainant;
2. Pay Rs.30,000/- (Thirty Thousand Only) as damages  & compensation for causing immense mental agony to the complainant;
3. Rs.2,000/- (Two Thousand Only) as the cost of litigation to the complainant.

 

2.       Accordingly, notices were issued to the OP and in response to the Notice issued, the OP has filed its reply stating that there is no deficiency in service or negligence on the part of OP. The deficiency has been defined under Section 2(g) of the C.P. Act which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law or has been undertaken to be performed by a person in pursuance of a contract. In the present case, the claim was settled as per the terms and conditions of the policy cover as the handset in question was found beyond repairable on account of non-availability of the part. However, the Complainant did not accept the settlement. It is stated that the settlement is required to be made by the insurance company with which the mobile phone of the Complainant was insured i.e. National Insurance Company Ltd. The OP is only a facilitator in registering and processing the claim of the Complainant, which was facilitated by the OP. The OP has further contended that the mobile handset namely HTC  Desire 820 having IMEI No. 356059061538456 was insured with the National Insurance Company Ltd. through the OP. As per the terms and conditions of the policy cover, the OP was only to facilitate the registering and processing the claim of the complainant with the insurance company with which the Mobile Handset in question was insured. Claim settlement was at the sole discretion of the National Insurance Company Ltd. Further, the liability of the OP is limited only to the extent of the insurance fee. On 29.06.2017 the Complainant raised a damage claim with respect to the mobile handset in question, after verification of the documents the claim was moved for pick-up. The handset in question was picked-up through Courier facility and after receiving the repair estimate of Rs.5,804/- from the authorized service centre on 03.08.2017 the same was forwarded to the insurance company for its approval. The claim was approved and sent to the Authorized Service Centre for repair on 08.08.2017. The same got repaired on 17.08.2017 and the phone was delivered to the Complainant on 19.08.2017. After the delivery the Complainant once again approached the OP stating that the handset he had received after repair from the Authorized Service Centre had mike and speaker issue in it. Handset was re-picked on 14.09.2017 by the OP through courier and afterwards sent for repairing to the Authorized Service Centre and it was informed by the service centre that they are still repairing the damage problem. Later the damage in mobile of Complainant was treated as total loss/beyond economical repair and the same was informed to the Complainant. In the present case, the Complainant raised the damage claim on 14.09.2017 with respect to mobile handset in question. Later, as per the terms and conditions, the OP offered the Complainant with an amount of Rs.8398/- after depreciating 20% from the current value according to the Depreciation chart as the market value of the same make and model handset was Rs10,498/-. However, the Complainant refused to accept the offer of the OP. the Complainant was also offered the same handset of the same make and model but the same was rejected by the Complainant. It is stated that the OP is still ready and willing to pay the Complainant the aforesaid amount as per the terms and conditions agreed between the parties. During the arguments, the OP has also referred the following judgments in support of its contention:-

1. Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) 1 SCC 66.
2. Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. [(2010) 10 SCC 567]
3. Reliance Life Insurance Co. Ltd. Vs. Madhavacharya (Revision petition No: 211 of 2009)

 

3.         Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant and it has been observed that:-

1. The judgments referred above by the OP, are not relevant in this matter as the facts and circumstances of the present complaint are quite different from the facts and circumstances of the cases decided in above judgments. In this case, the OP claims to be a facilitator as the mobile set was reported insured with the M/s National Insurance Co. Ltd. but the OP could not produce any document to prove that this fact was ever conveyed to the Complainant.
2. The OP has also filed “Standard terms and conditions” (as Annexure-A with the reply) wherein the “basis of loss settlement” has been explained but the OP could not produce any evidence to prove that these terms and conditions were ever served upon the Complainant.
3. The OP has taken effective date to settle the claim as 14.09.2017 ( date of filing the complaint by the complainant with OP for removal of defects in the phone) whereas the OP did not make any offer to the Complainant till the date of filing of the complaint before this Commission i.e. 12.03.2018 which proves that the OP did not take any action to solve the complaint made by the Complainant till 12.03.2018. It has also been clarified by the Complainant that the OP made this offer after issuance of the notice from this Commission.
4. It has also been held in the judgment passed  by the Hon’able Supreme Court of India in the matter of Texco Marketing Pvt Ltd Vs Tata AIG General Insurance Co. Ltd & others - (2023) I SCC 428 that the Insurance Company cannot rely upon the terms and conditions  if the same had not been supplied to the insured. In this case, the OP has failed to prove that the terms and conditions of the policy were supplied/delivered to the Complainant. 

 

4.            In view of the above observations, we are of the considered view that the complainant has suffered directly due to deficient service of the OP (M/s. One Assist Consumer Solutions Pvt. Ltd.) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer.

                

5.        Therefore, we feel appropriate to direct the OP (M/s. One Assist Consumer Solutions Pvt. Ltd.) to pay Rs.19099/- (Rupees Ninteen Thousand Ninety Nine only) within thirty (30) days from the date of this order, with interest at the rate of 9% p.a. from 12-03-2018 (date of filing of complaint) till the date of the payment. Besides, the OP-2 is also directed to pay Rs.20,000/-(Rupees Twenty Thousand only) as compensation to the Complainant for the mental pain, agony and harassment. It is clarified that if the abovesaid amount is not paid by the OP to the Complainant within the period as directed above, the OP shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

 

6.        Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

   ASHWANI KUMAR MEHTA                               HARPREET KAUR CHARYA               

                     Member                                                              Member

            DCDRC-1 (North)                                             DCDRC-1 (North)

 

 

 

                                                DIVYA JYOTI JAIPURIAR

                                                               President       

                                                          DCDRC-1 (North)