Delhi

North East

CC/228/2016

SANJAY KUMAR - Complainant(s)

Versus

RELIANCE RETAIL - Opp.Party(s)

13 Feb 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 228/16

 

In the matter of:

	Shri Sanjay Kumar S/o Shri Krishan Pal Singh R/o H. No. 4/113, Mandawali Extn. Delhi-110093.	Complainant
	Versus
1.       2.         3.	Reliance Retail Ltd At 1449/137, Main 100 ft Road, Durgapuri Extn, Shahdara, Delhi-110093.   Samsung Customer Satisfaction 2nd Floor, Tower-C, Vipul Teck Square, Sector-43, Golf Course Road, Gurgaon, Haryana-122002.   National Insurance Co. Ltd M/s Warranty & Administration Services 342, 3rd floor, Vardhman D.E.E. C.E.E Plaza plot No.7, Sector-11, Dwarka New Delhi-110075.	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

30.09.2016 13.02.2019 13.02.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

 

ORDER

1. Shorn of unnecessary details, facts relevant for the disposal of the present complaint are that the complainant had purchased a mobile handset model Samsung A-500G bearing IMEI No. 359932060897569 manufactured by OP2 from OP1 retail outlet / seller on 12.09.2015 for a sum of Rs. 20,150/- paid through credit card. At the time of purchase of the said mobile, the complainant was asked by OP1 to get the mobile handset insured against destruction / theft from OP3 and the complainant acting upon the representation of OP1 and assurance of security of his mobile handset and replacement thereof in case of any untoward incident in future, got the same insured with OP3 on payment of Rs. 609/- as premium for the Theft and Accidental Damage Cover provided by OP3 vide policy no. 100100/46/14/9500000123 and a Theft and Accidental Certificate under the stamp and seal of OP1 was issued by OP3 to the complainant. However, on 15.10.2015, while the complainant was trying to take out the said mobile handset from his shirt pocket, the handset accidentally slipped and its display got damaged. The complainant went to OP1 on 16.10.2015 asking to replace the same but it refused to do so with assurance to repair or exchange within 2 weeks. The complainant informed OP3 about the damaged mobile asking for the insured amount but OP3 asked the complainant to go to OP1 where he got the insurance from for compensation. However, the complainant neither got the replacement from OP1 nor any insured claim amount from OP3 till 24.06.2016. The complainant sent a legal notice to all the OPs on 27.06.2016 through his counsel which only OP2 vide reply dated 07.07.2016 replied to and none of the other OPs responded to and therefore the complainant was compelled as last resort to file the present complaint before this Forum praying for issuance of directions against the OPs to release the mobile insurance amount of Rs. 20,150/- alongwith payment of compensation of Rs. 50,000/- for mental agony and disturbance and interest @ 24% p.a. on the total of above said amounts i.e. on 70,150/-.

Complainant has attached copy of retail invoice issue by OP1 towards purchase of mobile alongwith extended warranty / insurance premium, copy of insurance certificate issued by OP3 under seal of OP1 granting coverage against theft and accidental damage to the complainant with respect to the mobile in question, copy of legal notice dated 27.06.2016 with postal receipts to the OPs and copy of reply dated 07.07.2016 by OP2 to legal notice of complainant.

2. Notices were issued to OPs on 09.09.2016. OP1 filed its written statement in which it took the preliminary defence that the complainant was apprised of the terms and conditions of the insurance policy provided by OP3 as also warranty terms and conditions pertaining to usage of the subject mobile by OP2 at the time of purchase and all of which were clearly communicated to the complainant viz process for Activation / Policy Registration etc but the complainant instead of following the same and dealing with OP3 directly as the insurer of the subject mobile handset file the present complaint impleading OP1 whereas OP1 has no role being a seller /dealer which had fulfilled its responsibility and not liable for any damages to the complainant and OP3 being a separate legal entity. OP1 further urged that no cause of action has arisen against itself and even though it was a case of insurance, still it spoke to OP3 and guided the complainant to approach OP3 but complainant was insisting for a new mobile handset only which was beyond the scope of OP1 for which OP1 is not authorized to commit and therefore urged that no deficiency of service can be fastened against him for want of justification and prayed for dismissal of the complaint.

OP2 filed its written statement, while admitting the factum of purchase of the subject handset by complainant manufactured by it on 12.09.2015 for a sum of Rs. 20,150/- that OP2 never gave any warranty in terms of the insurance plan of the said handset which was taken by the complainant from OP3 and alleged that the complainant had damaged the said mobile handset due to his negligence of dropping the handset as per his own admission for which OP2 cannot be held liable though it was ready to resolve the issue as per terms and conditions of the warranty. OP2 further contended that neither does it have any record of the said insurance plan nor has it given any warranty in terms of the said insurance plan of the handset. Lastly, OP2 urged that complainant had never contacted OP2 for any assistance and it is not in the business of insurance and therefore neither any deficiency of service nor any unfair trade practice can be attributed to it as no cause of action has arisen against OP2 in the present complaint and therefore prayed for dismissal of the complaint.

OP3 failed to appear despite service effected on 20.09.2016. OP2 also failed to appear after filing its written statement on 10.11.2016 and both OP2 and OP3 were proceeded against ex-parte vide order dated 05.12.2016.

3. Rejoinder to the written statement of OP1 was filed by the complainant in rebuttal to the defence taken by OP1 in which the complainant denied having being apprised of any warranty or policy terms and conditions with respect to the subject handset by any of the OPs at the time of purchase of the said handset nor anywhere in their written statement and failed to exchange the mobile handset despite the same being under warranty to escape their liability. The complainant submitted that the terms and conditions of the policy have been printed in such fine and tiny font that are virtually illegible and therefore either OP1 and OP3 were duty bound to apprise the complainant of the said terms and conditions of insurance but both failed to perform their services and therefore are jointly and severally liable to compensate the complainant. The complainant also urged that the subject handset got damaged during warranty period and as per warranty terms and conditions on the warranty card provided by OP1, OP1 was liable to either give a new handset in exchange or refund the purchase value in the event of damage but it failed to do either despite assurance given to the complainant at the time of purchase that in case of damage during the warranty period, OP1 shall be responsible for all liabilities with regard to the subject handset. The complainant further urged that it had not damaged such a costly mobile knowingly but the OPs failed to perform their duties when the handset was damaged as none of the OPs asked the complainant to leave the handset with any of them for repairing or to take the same to any of the authorized service centre despite being duty bound to do so and therefore reiterated joint and several negligence of all the OPs. 
4. Evidence by way of affidavit was filed by the complainant in reiteration of his grievance and exhibited copy of warranty terms and conditions of the subject handset issued by OP2 from the booklet given with the handset and original Theft and Accidental Certificate / Policy Cover issued by OP3 under seal of OP1 with terms and conditions and exclusions overleaf.
5. Evidence by way of affidavit was filed OP1 through its Store Manager affirming and declaring inter alia that the complainant never approached the service centre for repair and reasserted its defence.
6. Written arguments were filed by the complainant in which the complainant reinforced his grievance against the OPs for non redressal of his problem of damaged handset by any of them despite being seller, manufacturer and insurer respectively thereof and duty bound to do so and prayed for relief claimed. Complainant further argued that he was covered as per the warranty terms and conditions since he had used the mobile handset as per its usage specifications and the damage thereto was accidental and not intentional thereby entitling him for compensation from OPs. The complainant placed on record judgment of M.P SCDRC in Gupta Communication Vs Puranlal and Anr I (2018) CPJ 174 (MP) for apportionment of liability of manufacturer and dealer which is coextensive as held by Hon’ble National Commission in judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC). The complainant placed on record the definition of condition of warranty as stipulated under Section 12 (3) of Sale of Goods Act, 1930 and Section 13 thereof for conditions to be treated as warranty.
7. Written arguments were filed by OP1 reinforcing his defence taken in the written statement of no cause of action and non maintainability against it being a seller / dealer not liable for any damages to the complainant since the case is that of insurance.
8. We have heard the arguments addressed by complainant and OP1 and have perused the documents placed on record on which perusal too key observations have come to light. Firstly the insurance cover note issued by OP3 bears the seal of OP1 which clearly establishes that OP1 and OP3 had mutually beneficial business relationship and at behest of OP1, the complainant was coerced into taken insurance cover from OP3. The said exercise was for business promotion of each other in the market for commercial gains. Secondly, the terms and conditions and exclusions overleaf on the cover note on insurance certificate are not at all legible / readable and is in such fine print that we cannot help but agree with the complainant that without any assistance / interpretation of the terms and conditions laid out therein, it was humanly impossible for any person to read the contents thereof. Therefore the role of OP1 and OP3 in the present complaint and inter se is rather collusive in as much as furthering each other’s commercial interests.         

The other issue that merits consideration in the present case is that in the event of the mobile phone having being duly insured, is there any liability for replacement / refund arising against the manufacturer thereof. Admittedly, it is not in dispute that the subject mobile phone was duly insured with OP3 which is proven beyond doubt from material evidence placed on record by the complainant, corroborated / endorsed by OP1 in its written statement and unrebutted by OP3 due to its willful non appearance. The Hon’ble National Commission in Samsung India Electronics Pvt Ltd Vs Saurabh Kapooria and Ors IV (2016) CPJ 227 (NC) had observed that the manufacturer company is under liability to explain the terms and condition as featuring in the service guide given with the mobile handset in cases which are not that of insurance and had modified the order of Hon’ble State Commission which had ordered for free of cost repair of the handset to the extent of repairing the handset on payment of cost and extension of warranty period thereon by the OP.

9. In the present case since the subject mobile was duly insured with OP3 at the behest of OP1 as can be seen in the insurance certificate, both OP1 and OP3 were liable to pay the insurance claim amount to the complainant since OP1 had received consideration amount for the said handset and OP3 had received premium amount for insuring the said handset from the complainant but both OPs failed to discharge their contractual liability towards the complainant which in our view is act of deficiency of service and unfair trade practice. OP2 was the manufacturer of the subject handset and warranty terms and conditions were only applicable for “defects in product arising out of manufacturing or faulty workmanship” which has not been alleged by the complainant in the present case since the mobile was rendered dysfunctional due to accidental damage and not any manufacturing defect therein. Therefore no liability can be fastened on OP2.  
10.  We therefore direct OP1 and OP3 as seller and insurer respectively jointly and severally to pay the insurance claim amount of  Rs. 20,150/- to the complainant alongwith interest @ 9% p.a. from the date of filing of the present complaint till realization. We further direct OP1 and OP3 jointly and severally to pay a compensation of Rs. 5,000/- towards mental agony and harassment suffered by the complainant. Let the order be complied within 30 days from the date of receipt of copy of this order.                                  
11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.  File be consigned to record room.
13.  Announced on 13.02.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member