BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.475 of 2017

Date of Instt. 13.12.2017

Date of Decision: 08.04.2019

Harkirpal Singh age about 25 years son of Sh. Jagjit Singh resident of 31, Golden Avenue, Phase-1, Jalandhar.

..........Complainant

Versus

1 Oneassist Consumer Solutions Pvt. Ltd., Head Office: 707-709, Acme Plaza, Opp. Big Cinemas, Andheri Kurla Road, Andheri (E), Mumbai-400059 through its Managing Director.

2. National Insurance, Divisional Office 1, BMC Chowk, Jalandhar. Through its Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Sh. Inderpreet Singh, Adv Counsel for the Complainant.

Sh. A. K. Gandhi, Adv Counsel for the OP No.1.

Sh. J. L. Naagar, Adv Counsel for the OP No.2.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that the complainant purchased a mobile make iPhone 7 Plus 256 GB from website namely: Flipkart.com bearing IMEI No.359160070434252, vide Invoice No.F0YQ10021700590341 on 30.10.2016. Copy of the invoice is attached. On the next day of the purchase of the above said phone, the complainant got his phone insured on 03.11.2016 from the OP for a sum of Rs.6999/-. Copy of the insurance is attached herewith as Annexure C-2. The complainant got relationship number 1427883 and membership ID 1000981194 and he got confirmation email from OP on 03.11.2016. The screen of the above said mobile got broken from bottom left side on 04.06.2017. As per terms and conditions, the OP was liable to repair the above said mobile, in case of any loss or damage. The complainant lodged a complaint on 05.06.2017, complaint was duly lodged in the complaint centre of OP, but the OP has not initiated any step to give assistance to the complainant despite various requests. The complainant suffered a loss on the part of the OP. As per the agreement of insurance, the OP also promised that they will provide courtesy handset for the interim use, but no initiative has been taken by the OP for above said issue of the complainant. Copy of the terms and conditions is attached herewith. Due to deficiency in service by the OP, the complainant has suffered loss in his work as all the contacts and their details were saved in the above said mobile phone.

2. That thereafter, a legal notice dated 13.08.2017 was sent by the counsel for the complainant to the OP, but all in vain and as such, the instant complaint filed with the prayer that the OPs are negligent and deficient in services and therefore, complaint of the complainant may be accepted and OPs be directed to repair the mobile handset with immediate effect or to pay Rs.20,500/- the cost of broken display of the mobile handset and further OPs be directed to pay full value of the iPhone 7 Plus 256 GB along with interest @ 24% per annum from the date of purchase till the actual realization and further OPs be directed to pay litigation expenses of Rs.20,000/-.

3. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint does not disclose any cause of action qua the answering OP. Therefore, the complaint is liable to be dismissed. It is further alleged that the present complaint does not disclose any consumer dispute as defined under the Consumer Protection Act. Therefore, the present complaint is liable to be dismissed on this ground alone. It is further submitted that this Forum has got no jurisdiction to entertain the present complaint as there is no deficiency in service and negligence on the part of the OP. It is further submitted that the complainant raised the damage claim on 22.06.2017 with respect to his iPhone. On 05.07.2017, the document submitted by the complainant was verified and thereafter, attempts were made to collect the iPhone in question i.e. on 06.07.2017, 07.08.2017 and thereafter on 06.09.2017, however, the complainant refused to handover the iPhone for repair accordingly on 03.09.2017 after long follow up of about two and half month, the claim was closed on 23.09.2017 with the reporting “Final mail send to customer but no response from customer within 28 hours so SR closed”. Thus, the claim of the complainant was closed as per the agreed terms for which the replying OP No.1 cannot be made liable. Thus, the complaint is devoid of any merit and liable to be dismissed. On merits, it is not denied that the complainant purchased the iPhone as well as taking of insurance of the same, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. OP No.2/National Insurance Company appeared and filed its separate reply and contested the complaint by taking preliminary objections that the OP No.1 itself is guilty of improper handling alleged grievance of the complainant on all counts. The OP No.1 itself is conspicuously negligent of not getting any complaint registered with the answering OP for redressal and OP No.1 has also been bitterly failed to pacify the alleged grievance within its own mechanism for which the answering OP No.2 is obviously not at all responsible or liable to compensate of any alleged loss or damage at all as claimed. Therefore, the present consumer complaint is liable to be dismissed with costs qua OP No.2. It is further alleged that the complainant himself is guilty of an has bitterly failed to take the appropriate care and caution for safety and protection for proper maintenance of the product which caused the alleged damage to the product. The present complaint also suffers from numerous inherent, incurable and incorrigible defects. Therefore, the complaint is liable to be dismissed. On merits, all the facts as narrated in the complaint are categorically controverted and further submitted that the insurance document was issued by the OP No.1 and the same is in possession of the complainant being their alleged inter se transaction, but the answering OP No.2 does not have or hold any records pertaining to the said alleged insurance nor has the same been sent or communicated to the answering OP No.2 in any form. Therefore, the complainant be put to the strict proof of the same for the fair and impartial trial of the matter and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

5. In order to prove the case of the complainant, the complainant himself tendered into evidence his own affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-8 and closed the evidence.

6. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OP/A alongwith document Ex.OP1/1 i.e. Terms and Conditions and closed the evidence.

7. Similarly, counsel for the OP No.2 tendered into evidence affidavit Ex.OPW2/1 alongwith document Ex.OP2/2 i.e. Copy of Insurance Policy and closed the evidence.

8. We have heard the argument from learned counsel for the respective parties and also gone through the case file very minutely.

9. First of all, we find that the complainant alleged that he got purchased a mobile iPhone 7 Plus and the same was got insured after paying consideration amount of Rs.6999/- and produced on the file alleged copy of the insurance policy and if we go through the alleged copy of insurance Ex.C-2, then we can say without any hesitation that it is not issued by the OP No.2/National Insurance Company rather it seems to be issued by OP No.1/Oneassist Consumer Solutions Pvt. Ltd., who received the amount of premium Rs.6999/- from the complainant. The OP No.2/National Insurance Company categorically alleged in the reply that the OP No.2 has no record in regard to issuing of insurance policy to the complainant in regard to mobile, if so, then we cannot fasten any liability upon the OP No.2 and until and till the OP No.1 has not to establish on the file that the said insurance policy having a link with National Insurance Company, but the OP No.1 has not brought on the file any such type of document, where-from we can ascertain that the OP No.1 has link with the National Insurance Company and working on behalf of the National Insurance Company and furthermore, the OP No.2 never stated or alleged in the written reply that any claim in regard to damages of the mobile phone has been submitted by the complainant with the OP No.2, but OP No.1 categorically deposed and explained in Para No.6 on merit on the last lines that the insurance claim of the complainant had been closed for want of documents or for want of mobile for repair purpose. So, it means the entire role is revolving around the OP No.1, who alleged himself that he is a processing agency for getting insurance for the customer, if so, then at this stage, we can fasten the OP to provide appropriate services to the complainant in regard to insurance policy and accordingly, the complaint of the complainant qua OP No.2, for the time being is disposed of, till OP No.1 will not produce the insurance policy issued by the OP No.2 in favour of the complainant and accordingly, complaint of the complainant is partly accepted and further OP No.1 is directed to process the case of the insurance of the complainant and send the same to the concerned insurance company and get it decide within 30 days on either side and thereafter, the complainant will reserve his right to file a fresh complaint, if he will not agree with the decision of the said insurance company, if the OP No.1 failed to get decide the insurance claim of the complainant within period of 30 days from the date of receipt of the copy of order, then the OP No.1 will liable to pay compensation, to the tune of Rs.20,000/- and litigation expenses of Rs.7000/- with interest @ 12% per annum from the date of filing complaint i.e. 13.12.2017, till realization. This complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Karnail Singh

08.04.2019 Member President