Punjab

Patiala

CC/15/42

Chhangu Ram - Complainant(s)

Versus

Roshan Lal puran Chand - Opp.Party(s)

Sh Rahul Kamboj

04 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No.CC/15/42 of 18.2.2015

                                      Decided on:        4.9.2015

Chhangu Ram son of Sh.Ramesh Kumar, resident of House No.B-39/181,Mohalla Jaijian Patiala.   

                                                                   …………...Complainant

                                      Versus

1. Roshan Lal Puran Chand, authorized Mobile Service Centre, Bharpur Garden, Ayurvedic College Road, Near Leo Gas Patiala through its Proprietor/Partner.
2. Samsung India Electronic Pvt.Ltd.B-1,Sector 81, Phase-II, Nodia District Gautam Buddh Nagar(Uttarpardesh)
3. The New India Assurance Company Limited, Branch Office at Patiala.

                                                                   …………….Ops

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

Present:

For the complainant:     Sh.Rahul Kamboj , Advocate

For Op No.2:                  Sh.J.S.Sandhu,Advocae

For Op no.3:                  Sh.Sanjeev Kumar Garg,Advocate                

                                         ORDER

D.R.ARORA, PRESIDENT

1. It is the case of the complainant that he had purchased the mobile hand set make Samsung ,Model SM-N-900 bearing IMEI No.359543050629506 from Op no.1 vide invoice No.0001590 dated 8.1.2014. The complainant was given the warranty in respect of any kind of defect and the complainant was also provided with Form No.3C and claim pre receipt voucher. Since from the date of the purchase, the mobile hand set was giving a problem in the display and therefore, the complainant approached Op no.1 for the removal of the defect. The Op received a sum of Rs.10,000/- on 3.3.2014 during the warranty period. The mobile phone was defective but Ops no.1&2 failed to disclose about the same.
2. It is further the case of the complainant that his mobile hand set was insured with Op no.3 namely New India Assurance Co.Ltd. The complainant also informed  about the defect in the mobile hand set and for the payment of the bill amount but Op no.3 refused to pay the insured amount as per the policy terms and conditions. Op no.3 is bound to pay the insurance amount in respect of the defective mobile hand set as the complainant paid the insurance amount to Op no.1 at the time of purchasing the mobile hand set.
3. It is further averred by the complainant that he moved so many applications to Op no.3 through registered post but to no effect. Similarly, it is alleged that Op no.2 issued the quotation but the Ops have indulged in mal practice and the complainant is the sufferer at their hands.
4. Then, it is the case of the complainant that he approached op no.1 on 15.1.2015 but op no.1 failed to entertain the complainant and to remove the defect in the mobile hand set and rather the complainant being an illiterate person, the ops got some papers signed from the complainant. Accordingly the complainant brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops (i) to replace the mobile hand set with new one or in the alternative to pay Rs.47000/-, the price of the mobile hand set; (ii) to pay a sum of Rs.10,000/- by way of compensation on account of the harassment and the mental agony experienced by the complainant;(iii) to pay him Rs.20,000/- towards compensation and (iv) to refund the insurance amount of the mobile hand set.
5. Here, it may be noted that initially the complaint was admitted against Op no.3 and Op no.2 was allowed to join the proceedings on an application moved in this regard by Op no.2 vide order dated 30.6.2015.
6. In the written version filed by Op no.2, it has raised certain preliminary objections, interalia , that the complainant has not sought the permission of the Forum under Section 11(b) of the Act before instituting the  complaint to file the complaint against the Op who is residing outside the territorial jurisdiction of the Forum as the Op has got  no branch office situate within the territorial jurisdiction of this Forum and that there is no deficiency of service on the part of the Op as it has never denied the after sale service to the complainant. As regards the facts of the complaint, the Op has not denied the complainant having purchased the mobile hand set in question on 8.1.2014 vide invoice No.0001590 from Op no.1 but it is denied that since from the purchase, the mobile hand was giving a display problem and that the complainant approached Op no.1 for the removal of the defect and that Op no.1 received Rs.10,000/-from the complainant on 3.3.2014. It is also denied by the Op for want of knowledge that the mobile hand set was got insured by the complainant with Op no.3 and that Op no.3refused to pay the insured amount. It is denied that the insurance company had taken the insurance amount from the complainant at the time of the purchase of the mobile hand set. It is denied that the complainant moved the application to Op no.3 through registered post. It is denied that the Op issued any quotation on 25.2.2014.
7. It s also the plea taken up by the Op that the complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific parts of the product nor filed any documentary evidence i.e. authenticated report of an expert and qualified person of Central Approved Laboratories , in support of the alleged submissions, as required. The complainant claims the mobile hand set to be suffering from defects but in the absence of any technical expert report, the complaint cannot be decided.
8. It is further averred by the Op that the complainant has sought the replacement or the refund of the price thereof which is not permissible under the law and also as per the terms of the warranty. The replacement or refund is permissible only where defect developed during the warranty period and  is of such a nature that it cannot be repaired. For any defect having developed after the lapse of the warranty period, the Op is not responsible. After denouncing the other averments of the complaint, going against the Op, it was prayed to dismiss the complaint.
9. In the written version filed by Op no.3, it is admitted that the mobile set purchased vide invoice No.0001590 dated 8.1.2014 was insured with the Op through Retailer’s Phone Zone but the Op has got no liability. In case the mobile hand set gets defective during the warranty period, it is the liability of Ops no.1&2 and in case the defective mobile hand set was sold to the complainant, it is the liability of Ops no.1&2 and not of Op no.3. It is denied that the complainant informed the Op regarding the removal of the defect and payment of the bill and that the Op refused to pay the insured amount. It is denied that Op no.3 is bound to pay the insurance amount for the defective mobile hand set sold to the complainant during the warranty period. It is denied that the complainant moved so many applications to the Op through registered post. It is also denied that the Op has been harassing and humiliating the complainant and indulged in malpractice. It is denied that the Op got the signatures of the complainant on some papers. When the complainant did not approach Op no.3, there is no question of obtaining the signatures on the papers. After denouncing the other averments of the complaint, going against the Op, it was prayed to dismiss the complaint.
10. In support of his complaint, the complainant produced in evidence Ex.CA his sworn affidavit alongwith documents Exs.C1 to C10 and his counsel closed the evidence.
11. On the other hand, on behalf of Op no.3, its counsel tendered in evidence Ex.OPA, the sworn affidavit of Dr.Ramesh Pandita, Manager of the Op alongwith document Ex.OP1 and closed its evidence.
12. On behalf o Op no.2, it’s counsel tendered in evidence Ex.OPB, the sworn affidavit of Mr.Shriniwas Joshi, Sr.Manager of the Op at Ludhiana and closed the evidence.
13. Both the Ops filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
14. While going through that pleadings made in the complaint, one does not find any allegation that the mobile hand set of the complainant was ever damaged and the complainant accordingly lodged the claim with the insurance company i.e. Op no.3 but surprisingly, the complainant has made the averments in para no.4 of the complaint that the mobile hand set was insured with op no.3 and he also informed op no.3 regarding the removal of the defect and payment of the bill but the Op failed to pay the insured amount. It appears that the complainant has not gone through the terms and conditions of the insurance policy ( copy Ex.OP1) which is supplied alongwith mobile hand set by the retailer at the time of the sale of the same. There is provided the claim procedure as under:

Intimation:

• Customer intimate the claim to APPSDAILY Toll Fee Number 1800 209 9060 within 48 hours of occurrence.
• Immediately after intimation, following procedure to be followed CLIAM DOCUMENTS TO BE DOWNLOADED FROM THE WEBSITE

For Theft DAMAGE CLAIM as under:

FOR DAMAGE CLIAM

• Mobile Handset to be taken to Authorized Service Centre or Service Centre identified by APPSDAILY & ‘Estimate for Repair’ to be obtained.

Claimant to send the following documents by E-mail to

On receiving the above documents by mail, decision on admissibility of the claim and quantum will be communicated to claimant by E-mail within 4-24 hours on any working day.

If claim is approved on REPAIR BASIS, following documents in original are to be submitted as per the ‘Address mentioned on claim documents or as informed by the Call Centre:

• Claims Forms (as specified)
• Estimate from Authorized Service Centre Or Service Centre identified by APPSDAILY
• 3 photos of the damaged handset(1 photo showing IMEI No. and other 2 showing damage)
• Invoice of Mobile Handset
• Claimant ID proof

On receipt of above mentioned documents, the approved claim amount will be credited to claimant’s account in 7 working days”.

15. It is no where the plea taken up by the complainant that his mobile hand set was damaged and he gave the intimation to Op no.3 and lodged the claim.
16. The complainant has placed on file form 3C, Ex.C2, which is a claim prereceipt voucher, Ex.C4, the quotation dated 25.2.2014 obtained by the complainant from M/s Roshan Lal Puran Chand i.e. OP no.1, Ex.C5 Form 1C, which is mobile hand set insurance claim form purportedly issued by Op no.3,Ex.C6, Form 2C, which is incident report and the same can be said to have been produced by the complainant on file only and the same was never submitted before Op no.3 because nowhere in the complaint, the complainant has described the incident as disclosed in incident report Ex.C6 recorded as “I was traveling my bike on road. Suddenly my bike was slipped and my mobile was broken in my pocket”. It is also mentioned in the incident report that the mobile was damaged on 24.2.2014. Therefore, in the absence of the plea to have been taken up by the complainant in the complaint that his mobile hand set was damaged on 24.2.2014  and he had lodged a claim with Op no.3, we cannot consider this aspect of the evidence and rather a perusal of the complaint would go to show that it is case of the complainant that he was sold a defective mobile hand set by Ops no.1&2 and for that also Op no.3 is bound to pay the insurance amount but the picture is altogether different when one goes through the contents of the insurance policy Ex.OP1.
17. Now coming to the other aspect of the case of the complainant that because of the defect in his mobile hand set, he had approached Op no.1 in connection with the removal of the defect pertaining to the display problem, it is averred that he approached Op no.1 on 3.3.2014 and who received Rs.10,000/- from him during the warranty period. The complainant has simply produced in evidence Ex.C7, the photo copy of the cash receipt dated 3.3.2014 for Rs.10,000/- issued by Op no.1 but the complainant has not produced any job sheet to have been issued by Op no.1 on 3.3.2014 regarding any defect in the mobile hand set to show the ultimate outcome of the job sheet. To the contrary, the complainant has produced in evidence Ex.C8, the photo copy of the work order dated 15.1.2015 regarding the mobile hand set bearing IMEI No.359543050629506 regarding the internet problem and the problem of ‘set auto off ’ but the same cannot be connected with the receipt Ex.C7 dated 3.3.2014.We really fail to understand  that in case on 15.1.2015, Op no.1 had not entertained the complainant as alleged in para 8 of the complaint and removed the defect in the mobile hand set, why  the work order Ex.C8 was issued and if so, what was the outcome of the job sheet. To the contrary, the complainant states that Op no.1 received Rs.10,000/- from him on 3.3.2014 vide receipt Ex.C7 regarding the display problem in the mobile hand set but as discussed earlier no job sheet of the said date is produced by the complainant. By the issuance of the work-order dated 15.1.2015, the receipt Ex.C7 dated 3.3.2014 looses it’s significance particularly when no work-order dated 3.3.2014 was issued. The complainant has also not alleged in the complaint that the mobile hand set is lying with op no.1.
18. As a result of our aforesaid discussion, it would appear that the complainant has failed to establish that he ever approached op no.1 in the matter of getting the mobile hand set rectified regarding any display problem on 3.3.2014 and that is why the complainant did not press for the summoning of Op no.1 and even did not like to summon Op no.1 as a witness so as to prove that he ever approached Op no.1 in connection with the repair of the mobile hand set. What to talk of the complainant having alleged and proved that there is a manufacturing defect in the mobile hand set and he is entitled for the replacement of the same or the refund of the price thereof, the complainant has failed to establish that he ever approached Op no.1 for getting the mobile hand set repaired on 3.3.2014. Consequently we do not find any substance in the complaint and the same is found to be without any basis and the same is hereby dismissed.

Pronounced

Dated: 4.9.2015

                   Sonia Bansal                Neelam Gupta                        D.R.Arora

          Member                        Member                                  President