PER:

Nidhi Verma, Member;

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant is a house wife and the opposite party No. 1 is a mobile shop selling mobile phones and related products including mobile insurance etc.  The complainant has bought a mobile phone from the opposite party No. 1 of the brand OPPO A37 with the IMEI No. 862156035671392 vide invoice No. 150 dated 13.10.2016 and have got the receipt of the same duly signed under the seal and signatory of opposite party No.1. While purchasing the said mobile phone the opposite party No. 1 allured the complainant for buying  a mobile Protection Kit 15 K for the same and categorically assured the complainant that in case of any damage to the above said mobile phone within a period of one year and in that case the company will replace the damaged phone with a new one or the company will indemnify the loss. As per the assurances and allurements of the opposite party No. 1, the complainant purchased the Mobile Protection Kit 15 K and paid a sum of Rs. 1249/- towards it vide invoice No. 151 dated 13.10.2016 issued under the seal and signature of opposite party No. 1. On 27.3.2017, the above mentioned mobile phone of the complainant covered under the aforesaid MOBILE PROTECTION KIT 15 K got damaged. Thereafter, the complainant approached the opposite party No. 1 for getting the claim with regards to the damaged phone covered under the mobile protection Kit 15 K as indemnified/ categorically assured by the opposite party No.1 while purchasing the same. The opposite party No. 1 asked the complainant to intimate the opposite party No. 2 through email regarding the damage of the insured phone. As per the instructions of the opposite party No. 1, the complainant informed the opposite party No. 2 through email and opposite party No. 2 informed the complainant that the claim has been registered and the complainant has to pay Rs. 1000/- for processing the claim. Thereafter, the complainant made the payment of Rs. 1000/- to opposite party No. 2 and in this regard the complainant had received a confirmation of successful payment receipt vide No. CIN AND_280317_197868668 through email on dated 29.3.2017. Thereafter, the complainant approached the opposite parties No. 1 and 2 again and again however, the damaged phone was not replaced as categorically assured/ indemnified by the opposite parties No. 1 and 2 and the opposite parties did not pay any heed to the genuine requests of the complainant and have failed to provide the services as categorically assured/ indemnified at the time of purchasing the said Mobile Protection Kit 15 H. The opposite party No. 1 has not listen the genuine request of the complainant. The complainant has prayed that the opposite parties may be directed to replace the mobile set in question duly covered by their Mobile Protection Kit and also directed to compensate the complainant with Rs. 25000/- on account of losses incurred as mental harassment and agony.

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite Party No. 1 appeared through counsel and filed written version and contested the complaint by taking preliminary objections that the complaint is not maintainable. It is a malafide cause as it is filed by the complainant just to harass and pressurize the opposite party No. 1, otherwise, there is no merit in the complaint and hence is liable to dismissal. The opposite party No. 1 has been dragged in to unnecessary and frivolous litigation.  The complainant is estopped by her own act and conduct from filing this complaint and to claim any relief. There is no deficiency in service on the part of the opposite party No. 1 in any manner. The complainant has not approached this commission with clean hands and has concealed/ suppressed the true facts from this commission, as such, she is not entitled to any relief and the complaint is liable to be dismissed on this score.  On merits, it was pleaded that the complainant was told all the features and advantages of the mobile protection kit 15K which were duly explained to her by the opposite party No. 1 and as such, she had purchased the same voluntarily after having been fully satisfied about the benefits, features and advantages of the said product and as such, there is no question of any allurement to her by the opposite party No.1. The complainant had approached the opposite party No. 1 and told about the damage caused to the product and accordingly, she was properly guided in this regard by the opposite party No. 1 for getting the claim and accordingly, the complainant had followed the same guidance and contacted the opposite party No. 2. As per guidance provided by the opposite party No. 1, the complainant had informed the opposite party No. 2 and her complaint was registered.  At the time of selling the said set, the opposite party No. 1 had specifically told to the complainant that in case of any kind of damage to the set,  only the opposite party No. 2 will indemnify the damage, if any, caused to the set. Opposite party No. 1 is not liable to replace the set. The alleged request of the complainant is not genuine or justified. The opposite party No. 1 has acted only as an agent. The complainant had purchased the insurance policy after fully satisfying about all the benefits. The mobile set of the complainant got totally damaged and under this scenario, claiming of insurance is a dispute only between the complainant and opposite party No. 2 and in this manner, opposite party No. 1 has no role to play. Only the opposite party No. 2 is responsible for the claim of damage, if any proved by the complainant. Whenever the complainant visited the opposite party No. 1 for any complaint, she was provided full cooperation and respect of a customer. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.

4        Notice was issued to the opposite party No.  2, but the opposite party No. 2 did not appear despite service, therefore, the opposite party No. 2 was proceeded against exparte.

5        To prove his case, Ld. counsel for the complainant has tendered in evidence affidavit of complainant Ex. CW1/A, copies of bills Ex. C-1, C-2, copies of emails dated 29.3.2017 and 27.4.2017 Ex. C-3 and Ex. C-4 and closed the evidence.. On the other hands, the opposite party No. 1 tendered in evidence affidavit of Sh. Gauram Khanna Ex. OP1/1 and closed the evidence.

6        We have heard the Ld. Counsels for the complainant and opposite party No. 1 and have carefully gone through the record. 

7        From the combined and harmonies reading of pleading and documents placed on record is going to prove that the complainant bought a mobile phone from the opposite party No. 1 of the brand OPPO A37 with the IMEI Number 862156035671392 vide invoice number 150 dated 13.10.2016. While purchasing the said mobile phone the OP 1 allured the complainant for buying Mobile Protection Kit 15K and categorically assured the complaint that in case of any damage to the above said mobile phone within a period of one year and in that case the company will replace the damaged phone with a new one or the company will indemnify the loss. The complainant purchased the Mobile Protection Kit 15 K and paid a sum of  Rs. 1249/- toward it vide invoice No.151 dated 13.10.2016 issued under the seal and signature of OP No 1. On 27 March, 2017 the mobile phone of the complainant got damaged, thereafter, the complainant approached the OP No. 1 for getting the claim with regards to the damaged phone covered under the mobile protection kit 15 K . The OP No 1 asked the complainant to intimate the OP No 2 through e-mail regarding the damage. As per instructions of the OP No. 1, the complainant informed the OP No 2 through email and the OP No 2 informed the complainant that the claim has been registered and the complainant has to pay Rs 1000/- for processing the claim thereafter, the complainant made the payment of Rs. 1000/- to the OP No 2 and in this regard the complainant had received a confirmation of successful payment receipt vide No. CINADN _ 28 0317_197868668 through email on dated 29 March 2017. Thereafter, the complainant approached the OPs No. 1 and 2 again and again however the damaged phone was not replaced as categorically assured/indemnified by the OPs No 1 and 2. Whereas the OP No 1 stated in its written version that the complainant was told all the features and advantages of the mobile protection kit 15 k which were duly explain to her by the OP No 1. And, as such, she had purchased the same voluntarily after having been fully satisfied about the benefits features and advantages of the said product and as such, there is no question of any allurement to her by the OP No 1. Moreover, at the time of selling the said set, the OP No. 1 had specifically told to the complainant that in case of any kind of damage to the set, only the OP No 2 will indemnify the damage, if any caused to the set . OP No. 1 is not liable to replace the set.  However , the plea of the OP No 1 is that they have only sold the mobile handset to the complainant and OP No 2 is liable to replace the said mobile handset alongwith compensation. But we are not agreed with this plea of OP No 1 as the retailer is also liable in case of any defect in the product. Reliance in this connection has been made upon judgment reported as Pioneer Motors (Kannur) Pvt. Ltd Vs. N.Chandran, Winspot Tailors and another 2010 CTJ page 344, wherein it has been held as under:-

"Both the manufacturer and its dealer are the necessary parties to the sale of a product. In case of any manufacturing defect alleged to be in that product, the dealer cannot evade its responsibility. It is as much liable to the purchaser as the manufacturer.”

8        In the view of the above discussion, it stands proved on record that the mobile handset of the complainant got damaged, which is duly covered by their Mobile Protection Kit 15k. As such, the Opposite parties are liable to get it replaced. The opposite party No. 1 has sold the said mobile set to the complainant after receiving the money. Moreover the complainant informed the Opposite Party No. 2 through the email regarding the damage of the handset and Opposite Party No 2 further asked the complainant to pay Rs 1000/- for processing the claim , thereafter opposite party No 2 send the confirmation of successful payment , as an evidence (Annexure C3 and C4) thereafter, the complainant approached the OP NO 1 and 2 again and again however the damaged phone was not replaced as categorically assured /indemnified by the OP NO 1 and 2 . Hence, there is deficiency in service and unfair trade practice on part of the OPs No 1 and 2 .

9        Consequently, we allow the complaint and directed to the Opposite parties to replace the mobile hand set of the complainant with the new one of same model , failing which Opposite parties are liable to refund the sale price of the mobile handset i.e Rs 10,600 plus costs of mobile protection kit 15K i.e Rs 1249 plus claim processing fees Rs 1,000/-  to the complainant. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to Rs.4,000/- ( Rs. Four Thousand only) as compensation on account of harassment and mental agony and Rs 3,000/- (Rs. Three Thousand only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

26.07.2022