BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BHIWANI.
Consumer Complaint No. 122 of 2018.
Date of Institution: 11.9.2018
Date of Decision: 8.4.2021
Amit Kumar son of Sh. Ratan Lal Halu Bazar Matu Ram ki Purse, Near Dhag gyan Gali, Bhiwani, Tehsil & District Bhiwani.
…..Complainant.
Versus
- Director, One Assist Consumer Solution Pvt. Ltd. Subrat Paani 707, ACME Plaza, near Andheri Kurla Road, Big cinema, Andheri East Mumbai City MH-400059.
- Samsung Mobile authorized Service Centre, Kapil Enterprises, Near Durga Cycle Store, Dinod Gate Bhiwani.
- Manager, Ashoka Engineers, Samsung Service Centre, SCO-136, Lajpat Nagar, Old Court complex, Hisar.
…..Opposite Parties.
Complaint under Section 12 & 13 of the
Consumer Protection, Act, 1986.
Before: - Mr. Nagender Singh, President.
Mr. Shriniwas Khundia, Member.
Present: Complainant in person.
Sh. Pardeep Bajar, Adv. for the OP No.1.
OP No. 2 & 3 already exparte vide order dated 15.10.2018.
ORDER:-
NAGENDER SINGH, PRESIDENT
Brief facts of the case are that complainant had purchased a mobile set of Samsung Company on dated 22.02.2017 for Rs.36900/- and insured his mobile phone online from the opposite party no.1 on dated 28.10.2017. The alleged mobile in question was fell down from the hands of the complainant while using the same and became damaged. The opposite party No.1 was informed accordingly but the opposite party had repudiated the claim of the complainant on the ground that the mobile got damaged due to the mistake of the complainant. Complainant got repaired his mobile from the opposite party No.2 vide job sheet no.4263082220 dated 22.06.2018 in which the location of service centre is mentioned as Ashoka Engineers 136, Lajpat Nagar, Old Court complex Hisar i.e. opposite party No.3. Opposite party No.2 charged Rs.5800/- from the complainant whereas issued the job sheet for Rs.150/- only. The opposite party no.2 & 3 take more time to repair the mobile as assured by them and they delivered the mobile phone in a damaged condition and they refused to return the display of the mobile. The mobile in question is too much damaged and it cannot be used. The complainant had to pay the repair charges of Rs.7000/- to the Service Centre whereas the back portion of the mobile is fully damaged. The mobile in question is lying with the Samsung service centre of the opposite party since 12.07.2018 and the same is not repaired by the opposite parties despite charging of Rs.5800/- from the complainant. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed either to replace the defective mobile with new one or to refund the price of mobile set to the complainant. Opposite party be further directed to pay compensation of Rs.25000/- on account of deficiency in service and litigation expenses to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party no.1 in its reply has submitted that in the present complaint, complainant did not upload the required documents for processing of claim of complainant even after OP intimated the complainant through e-mail to upload the required documents. The complainant acted with gross negligence on is part and hence, devoid of any merit, the complaint is liable to be dismissed. It is further submitted that present complaint is bad for non-joinder of necessary party. National Insurance company Limited with which the mobile handset of the complainant was insured is a necessary and proper party for adjudicating the present complaint. Claim settlement was at the sole discretion of the National Insurance Company Ltd. Further, the liability of the opposite party is limited only to the extent of the insurance premium paid by the complainant. It is further submitted that the claim of the complainant was closed on 05.06.2018 as per exclusion clause with the reason “improper handling”. The complainant himself was negligent while using the insured handset. Hence there is no deficiency in service on the part of opposite party. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint.
3. Notice sent to opposite party no.2 & 3 through registered cover not received back either served or unserved. As such after expiry of statutory period of one month, opposite party No.2 & 3 were proceeded against exparte vide order dated 15.10.2018 of this Commission.
4. The complainant tendered into evidence documents Annexure C-1 to annexure C-10 and closed the evidence on 24.1.2020. He has also placed on record the written arguments along with standard terms and conditions documents.
On the other hand, the counsel for respondent No. 1 closed the evidence on behalf of respondent No. 1 on 26.2.2021.
5. We have perused the written arguments and standard terms and conditions placed on record by the complainant. We have also heard the arguments of learned counsel for the parties and gone through the entire evidence placed on record by the parties very carefully and minutely.
During the course of arguments, the learned counsel of complainant as well as learned counsel for OP No. 1 reiterated the contents of the complaint filed by the complainant as well as the reply filed by the OP No.1 and further drawn the attention of this Forum/Commission towards the documents placed on record by the respective parties.
6. We have perused the documents placed on file very carefully and minutely. After hearing arguments and going through the entire case file and perusing the documents so placed on record very carefully and minutely, we have observed that in the present case, the complainant got his mobile phone insured with the opposite party no.1 and paid an amount of Rs.1999/- as insurance premium on dated 28.10.2017 to the opposite party No.1. The receipt of the same is placed on record as Annexure C2. The complainant raised a damage claim with the opposite parties. But the same was closed on June 05, 2018 on the ground of ‘improper handling’. The other plea taken by the opposite party No.1 is that mobile handset in question was insured with the National Insurance Company ltd. through the opposite party no.1. As per the terms and conditions of the policy cover, the opposite party 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. But to prove the same, no policy number or document has been placed on record by the opposite party No.1 & 3 to prove that the mobile in question was insured with National Insurance Company. No policy has been issued to the complainant. Standard Terms & Conditions have been placed on record by the opposite party No.1 alongwith the reply. At the time of arguments, complainant has also placed on record written arguments, which is annexed with the Terms & Conditions issued by the opposite party no.1. In the alleged terms and conditions also, it is nowhere mentioned that the policy has been issued by the National Insurance Co. Ltd. Hence it is not proved on file that the policy was issued by the National Insurance Company Ltd. Moreover, the premium was paid to the opposite party No.1 i.e. One Assist Consumer Solution Pvt. Ltd. As per Annexure C6, opposite party no.3 given the estimate repair of Rs.12787/-. As per the complainant, he paid Rs.5800/- to the opposite party No.3 and remaining amount of Rs.7000/- was to be paid to the opposite party No.3 but the opposite party no.3 returned the mobile in question in damaged condition and same has not been repaired or replaced by the opposite parties despite his repeated requests. Hence there is deficiency in service on the part of all the respondents. On the other hand opposite party No.2 & 3 did not appear despite service, hence all the allegations leveled by the complainant against the opposite party No.2 & 3 regarding charging of Rs.5800/- from the complainant and not repairing the handset in proper manner stands proved. As the mobile in question was insured with the opposite party No.1, hence the opposite party No.1 is liable to compensate the complainant.
7. In view of the facts and circumstances of the complaint, we hereby allow the complaint and direct the opposite party no.1 to refund the price of mobile set in question i.e. Rs.36900/-(Rupees thirty six thousand nine hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 11.09.2018 till its realization and shall also pay a sum of Rs.10000/-(Rupees ten thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Opposite party No.2 is also directed to refund the amount of Rs.5800/-(Rupees five thousand eight hundred only) to the complainant alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 11.09.2018 till its realization to the complainant. Order shall be complied within one month from the date of decision. The mobile in question is already in the possession of service centre.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Commission
Dated: - 8.4.2021
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Commission, Bhiwani.
