BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BHIWANI.
Consumer Complaint No. 144 of 2018.
Date of Institution: 15.10.2018/13.7.2018
Date of Decision: 8.4.2021
Sonu Kumari alias Sonu daughter of Sh. Pawan Kumar, New Bazar, near Annakshetra, Neem Chowk, Bhiwani, Tehsil & District Bhiwani.
…..Complainant.
Versus
- Director, One Assist Consumer Solution Pvt. Limited, Subrat Pani 707, ACME PLAZA, near Andheri Kurla Road, Big Cinema, Andheri East Mumbai City MH-400059.
- Manager, ECOM Courier Service, near Dev Electronics, New Bazar, Bhiwani.
- Manager, one Assist Consumer Solution, 17/4, 3rd Floor, main market, Tilak Nagar, behind police booth, Mangal bazaar road, New Delhi-110018.
…..Opposite Parties.
Complaint under Section 12 & 13 of the
Consumer Protection, Act, 1986.
Before: - Mr. Nagender Singh, President.
Mr. Shriniwas Khundia, Member.
Present: Sh. Suraj, Adv. for complainant.
Sh. Pardeep Bajar, Adv. for the OP No.1.
Sh. Vikas Nagar, Adv. for the OP No.2.
OP No. 3 already exparte.
ORDER:-
NAGENDER SINGH, PRESIDENT
1. Brief facts of the case are that complainant insured his mobile phone Samsung Galaxy S 8 Plus worth Rs.58900/- from the opposite party no.1 & 3 and paid Rs.2699/- as premium. The policy was issued on 26.04.2018 which was valid upto 25.04.2019. Opposite party One Assist Consumer Solution Pvt. Ltd. shows itself as insurance company on the online website whereas the insurance is made by New India Assurance Pvt. Ltd. but the said fact is not available at the online portal. Complainant booked his damaged mobile through opposite party no.2 on dated 13.05.2018, which was picked by the head office on 19.05.2018. Company hand over the said mobile on 02.06.2018 to the complainant but when the complainant unpacked the mobile, the display of the alleged set was damaged and the colour was also changed by the opposite parties. Complainant complained about the same at Call centre of the opposite parties on 02.06.2018. The One Assist Consumer Solution has sent a different damaged mobile set to the complainant through opposite party no.2 on dated 12.07.2018. Complainant made so many requests to the opposite parties to pick up the alleged defective mobile and replace the same but despite repeated requests of the complainant, the same has not been picked up by the opposite party no.1 & 3, whereas false assurance were made by them for replacement of the alleged mobile. Due to non-replacement of defective mobile for such a long time, complainant had to purchase a new mobile set. The act of opposite parties no.1 & 3 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.30000/- 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 the mobile handset namely, Samsung Galaxy S8 Plus having IMEI NO. 357851081398765 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. Further, the liability of the opposite party is limited only to the extent of the insurance fee. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint.
3. Opposite party no.2 in its reply has submitted that the complainant in its complaint has admitted the fact that opposite party no.2 is a courier company and the role of the answering opposite party as a courier service provider has been duly and diligently fulfilled in the instant case. Hence, there is no deficiency in service on the part of the answering opposite party. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint.
4. Notice sent to opposite party no.3 through registered cover not received back either served or unserved. As such after expiry of statutory period of one month, opposite party No.3 was proceeded against exparte vide order dated 15.10.2018 of this Commission.
5. The counsel for complainant tendered into evidence documents Annexure C-1 to annexure C-13 and closed the evidence on 14.3.2019. He has also placed on record the written arguments on behalf of complainant along with standard terms and conditions document on 18.3.2021.
On the other hand, the counsel for respondent No. 2 tendered into evidence affidavit Ex. RW-1/A and documents Annexure R-1 and closed the evidence on 12.7.2019. The counsel for respondent No. 1 also closed the evidence after tendering some documents on record on 26.2.2021.
6. We have perused the written arguments and standard terms and conditions placed on record by the learned counsel for 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 & 2 reiterated the contents of the complaint filed by the complainant as well as the replies filed by the respective OPs and further drawn the attention of this Forum/Commission towards the documents placed on record by the respective parties.
7. 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 & 3 and raised a damage claim on 13.05.2018 with the opposite parties. The mobile set in question was picked up by the opposite parties and was returned back to the complainant after repair of the same on dated 02.06.2018. The grievance of the complainant is that the display of the handset was broken and the color of mobile was changed. But the same has not been repaired or replaced by the opposite parties despite his repeated requests. On the other hand, contention of ld. Counsel for 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 as Annexure-A3. 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 i.e. One Assist Consumer Solution Pvt. Ltd. and all the emails were sent to Oneassist and the reply was also given by the Oneassist. Copy of emails Annexure C1 to Ex.C13 have also been placed on file. Hence the opposite party No.1 & 3 are liable to compensate the complainant. As per the emails placed on record as Ex.\Annexure C1 to Annexure C13, complainant is repeatedly requesting the opposite parties either to repair the damaged set or to replace the same but the same has not been done by the opposite parties which amounts to deficiency in service on their part.
8. In view of the facts and circumstances of the complaint, we hereby allow the complaint and direct the opposite party no.1 & 3(jointly and severally) to refund the price of mobile set in question i.e. Rs.58900/-(Rupees fifty eight thousand nine hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 13.07.2018 till its realization and shall also pay a sum of Rs.10,000/-(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. Order shall be complied within one month from the date of decision. However, complainant is directed to hand over the mobile in question to the opposite parties at the time of making the payment by opposite parties.
10. 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.
