Punjab

Amritsar

CC/16/130

Ravi Chand - Complainant(s)

Versus

Reliance Retail Ltd. - Opp.Party(s)

Gurmeet Singh Verka

07 Oct 2016

ORDER

 

Order dictated by:

Sh.S.S.Panesar,President.

1. Sh. Ravi Chand complainant has filed the present complaint under section 11 & 12 of the Consumer Protection Act on the allegations that on 22.8.2015 complainant purchased Apple iphone 6 from opposite party No.1. After purchasing the abovesaid iphone, complainant was advised to get the same insured  covering the theft and accidental damage. He was assured that in case his mobile is stolen or damaged in accident, he would get new iphone. Believing upon the assurance given by opposite party No.1, complainant paid Rs. 1650/- for the insurance of his mobile .  After the purchase of abovesaid iphone, it started giving problems in its functioning. The complainant visited the service centre of iphone at Amritsar and his iphone was replaced with new one by the service centre of iphone. On 16.2.2016 one person hit the motorcycle of the complainant and in this accident his mobile got damaged and dent caused to the iphone from the backside cover. When the complainant visited the service centre of iphone at Amritsar for setting his mobile right, he was told that they do not accept damage iphone.  Thereafter when the complainant approached the Insurance company with which his mobile was insured, the complainant was astonished to know that his mobile is not registered with it for insurance purpose. After this complainant visited opposite party No.1 and requested them to replace his damaged iphone on the basis of insurance of his iphone. But opposite party No.1 has been putting off the matter on one pretext or the other  and till date no satisfactory reply was given to the  complainant and lastly opposite party No.1 refused to accept the claim of the complainant .  Opposite party No.1 has committed fraud with the complainant by issuing insurance certificate of the mobile of the complainant which was not registered with the National Insurance Company. The complainant has sought for the following reliefs vide instant complaint :

1. Opposite parties be directed to pay Rs. 50000/- as compensation for the mental agony, harassment and sufferings to the complainant
2. Opposite parties be further  directed to replace the damaged mobile of the complainant with new one  .

Hence, this complaint.

2.       Upon notice, opposite parties No.1 & 2 appeared and contested the complaint by filing separate written statements.

3.       Opposite party No.1 in its written statement has taken certain preliminary objections that answering opposite party is a seller of various electronic items of many manufacturers like Sony,Samsung, Nokia, Blackberry,Apple, LG etc. Whenever a customer asks for or wants to bury or know about some device or product, the opposite party No.1 apprised them of the various features of the product to the customer . Similarly the complainant was apprised of the features of Apple iphone as well as terms and conditions  together with the features of insurance which was being provided by National Insurance Company Limited. Moreover, the complainant was also provided with the booklet of the warranty terms and what was covered under the said warranty.  The said warranty card also contained detailed terms and conditions governing the policy which was also very clearly communicated to the complainant. From the perusal of policy documents, it could be seen that complete process regarding the Activation has been declared on the policy documents. However, the complainant did not follow the aforesaid process of registration and  now to cover up his own mistaken, the complainant is blaming opposite party No.1. It was also communicated to the complainant that in case of any claim with the Insurance company, the policy holder  needs to deal with Insurance company directly as the Insurance company is a separate legal entity which have their own terms and conditions and the opposite party has no role into it ; that present complaint is not maintainable  as there has been no deficiency of service on the part of opposite party . In parawise reply, it was submitted that the complainant  purchased the said device from opposite party No.1. However, it was denied that opposite party No.1 suggested the complainant to get the insurance cover for the said device. Opposite party No.1 only explained the features of the insurance policy which was governed by the policy of opposite party No.2. The said insurance cover has been provided by opposite party No.2 and role of opposite party No.1 was just of a facilitator. Opposite party No.1 fulfilled its obligations by issuing the policy on behalf of opposite party No.2. The onus of getting himself registered was with the  complainant alone and the complainant cannot blame opposite party No.1 for not following the terms and conditions of opposite party No.2. While denying and controverting other allegations , dismissal of complaint was prayed.

4.       Opposite party No.2 in its separate written statement also took certain preliminary objections that complainant has got no cause of action to file the present complaint against opposite party No.2. The complainant neither gave any intimation to opposite party No.2 pertaining to the alleged damage to the mobile nor filed any claim with opposite party No.2 regarding the same. Hence, no liability can be fastened to opposite party No.2 in that regard ; that  present complaint is not maintainable being a premature one. In the present case, the claim in question has not yet been decided by opposite party No.2, since the same was never reported to opposite party No.2. Hence, the complaint filed by the complainant is otherwise bad for misjoinder of parties and cause of action  and opposite party No.2 has been unnecessarily arrayed as a party to the present complaint ; that opposite party No.2 is only liable to pay any claim if the same is covered under the Insurance policy. If the loss/damage is suffered with respect to any other item which is not covered under the Insurance policy, in that eventuality neither the claim preferred regarding the same is legally maintainable nor opposite party No.2 is liable to pay the said claim. That the subject matter of insurance policy in question has been changed subsequently by the complainant after obtaining the insurance and the same was required to be intimated to opposite party No.2 accordingly for making essential endorsement in the policy regarding the change of the subject matter of the insurance. However, the complainant as well as opposite party No.1 never intimated the same to opposite party No.2. As such, opposite party No.2 is not liable to pay the claim in question ; that at the time of alleged damage to the mobile on 16.2.2016, complainant was not having any insurable interest pertaining to the said mobile since the same was a replaced one and not the one which was originally insured at the time of purchase. The policy in question commenced on 22.8.2015 when the original mobile was purchased. However, the complainant got his original mobile replaced later on with another one on 24.10.2015. As such the complainant ceased to have insurable interest in the mobile that was insured since the replaced mobile does not stand insured with opposite party No.2, as such any alleged loss to the said replaced mobile is not payable ; that there is no privity of contract between complainant and opposite party No.2. That the mobile of the complainant  which was allegedly damaged, not being registered with opposite party No.2, the complainant is not entitled to be indemnified or compensated by opposite party No.2 ; that complainant has not approached this Forum with clean hands . On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.

5.       In his bid to prove the case Sh.Gurmeet Singh Verka,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-7 and closed the evidence on behalf of the complainant.

6.       To rebut the aforesaid evidence Sh.Harpreet Singh,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh. Harish Sharma,Store Manager Ex.OP1/1 and closed the evidence on behalf of opposite party No.1.

7.       On the other hand Sh.Sandeep Khanna,Adv.counsel for opposite party No.2 tendered into evidence  affidavit of Sh.Dheeraj Seth,Divisional Manager Ex.OP2/1 and closed the evidence on behalf of opposite party No.2.

8.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

9.       From the appreciation of the facts and circumstances of the case, it becomes evident that  the complainant originally purchased the mobile handset in dispute vide bill dated 22.8.2015, copy whereof is Ex.C-2 on record. It is the case of the complainant that the said mobile handset was damaged and the complainant got the mobile handset in dispute replaced from the company. It is the case of the complainant that the original mobile handset was insured with opposite party No.2 vide insurance cover, copy whereof is Ex.C-4 on record. But, however, there is nothing on record to show that the mobile handset which was replaced on 24.10.2015 was also got insured by the complainant by executing a contract  of agreement to that effect with opposite party No.2. As such complainant cannot get the mobile handset in dispute replaced through the indulgence of opposite party No.2 from opposite party No.1, particularly when the damage to the gadget has been caused due to negligence of the complainant himself. Even otherwise also in case of damaged handset, the retailer i.e. opposite party No.1 is also not under any obligation to replace the mobile handset or pay the price of the mobile handset to the consumer. Instant complaint is nothing but an abuse of the process of law. The complainant has miserably failed to prove his case in accordance with law and the evidence on record is shaky and inadequate to prove the case. As such instant complaint fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

 

Dated:  7.10.2016.