Haryana

Kurukshetra

172/2018

Neeraj - Complainant(s)

Versus

Sadhu Sons - Opp.Party(s)

26 Apr 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

                                                                    Complaint No.:     172 of 2018.

                                                                   Date of institution:         09.08.2018.

                                                                   Date of decision:  26.04.2022

 

Neeraj s/o Shri Ravinder Singh, r/o VPO Mirjapur, Tehsil Thanesar, District Kurukshetra.

                                                                                                …Complainant.

                                                     Versus

 

1. Sadhu Sons, Paras Complex Road, Kurukshetra, District Kurukshetra.
2. Sony Service Centre, Mugal Karnal, 1^st Floor, Shop No.349, Karnal.
3. Bajaj Allianz General Insurance Co. Ltd., GE Plaza, Airport Road, Yerwada, Pune-411006.

...Respondents.

 

CORAM:   NEELAM KASHYAP, PRESIDENT.    

                   NEELAM, MEMBER.

                   ISSAM SINGH SAGWAL, MEMBER.           

 

Present:       Shri R.K. Chopra, Free Legal Aid Advocate for the complainant.

                   Shri Mohit Goyal, Advocate for Opposite Party No.1.

Shri Shekhar Kapoor, Advocate for Opposite Party No.2.

Shri Atul Mittal, Advocate for Opposite Party No.3.

 

ORDER:

 

1.                This is a complaint under Section 12 of the Consumer Protection Act, 1986 (for short “Act”).

2.                It is alleged in the complaint that the complainant purchased a mobile Sony F-3116 Xperia XA on 09.08.2017 for a sum of Rs.15,990/- from OP No.1, having IMEI No.35812907-924036-7 and 3581907-924037-5. The complainant got insured the mobile from Bajaj Company after paying Rs.1847/- in this regard. On 04.12.2017, the mobile was broken after coming under the vehicle and the complainant informed the insurance company in this regard, who provided him a mobile No.022-28717171 and the complainant immediately contacted on this mobile number, who gave him claim No.2010076518, but despite repeated requests by him, after passing away 8-9 months, neither the insurance company repaired his mobile nor paid the claim amount, which amounted to deficiency in service, on the part of the OP No.3, causing him mental agony, harassment and financial loss, constraining him to file the present complaint, against the OPs, before this Commission.

3.                On receipt of notice of complaint, all OPs appeared and filed their respective written statements.

4.                The OP No.1, in its written statement, admitted purchasing the mobile in question, by the complainant from it on 09.08.2017. After purchasing the mobile, the complainant approached the OP Authorized Service Centre on 08.12.2017, vide Work Order No.W117120800265, raising the issue of “No Display & No Power” in the handset. After carrying out necessary inspection of mobile, it was observed that the handset was brought to the service centre in a damaged condition, as its Display and Back Cover was in a damaged condition. It was further observed that the cause of damaged was external in nature or can say due to negligence of the complainant and there was no inherent defect was found. Due to damaged condition of the handset, the warranty stood void, as per warranty policy. That’s why the OP No.2 shared an estimated cost of repair action/replacement of part with the complainant, but he instead of approving the said estimate, straightway, refuse to go for the same. The complainant has already purchased the warranty from Bajaj Allianz General Insurance Co. Ltd., therefore, the liability strictly falls on the complainant and insurance company to bear the cost of repair action.  

5.                The OP No.2, in its written statement raising preliminary objections regarding maintainability of complaint; no cause of action; jurisdiction and complainant has not come with clean hands before this Commission and suppressed the true and material facts from this Commission and prayed for dismissal the present complaint against it with heavy costs. 

6.                The OP No.3, in its written statement raising preliminary objections regarding non-maintainability of complaint; territorial jurisdiction; locus-standi; complainant has not come with clean hands before this Commission and suppressed the true and material facts from this Commission. It admitted issuing of insurance policy to the mobile in question. The complainant never approached to the OP No.3 nor informed it. The complainant is not entitled to any relief, rather the complainant violated the term and conditions of the policy, as such, there is no deficiency in its part and prayed for dismissal the present complaint against it, with exemplary costs. 

7.                The complainant, in support of his complaint filed affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-4 and closed his evidence.

8.                On the other hand, the OP No.1 had not led any evidence in its defence. The OP No.2, in support of its case, tendered affidavit Ex.RW1/A along with documents Ex.R-1 & Ex.R-2 and closed its evidence. The OP No.3, in support of its case, tendered affidavit Ex.RW3/A along with document Ex.R-3 and closed its evidence.

9.                We have heard the learned counsel for the parties and gone through the case file as well carefully.

10.              Shri R.K. Chopra, Free Legal Aid counsel for the complainant produced his written arguments containing two pages as Mark-A, wherein, he reiterated to the all version made into the complaint thereof.

11.              Shri Mohit Goyal, counsel for OP No.1 argued that on 08.12.2017, the complainant approached the OP Authorized Service Centre raising the issue of “No Display & No Power” in the handset. After carrying out necessary inspection, it was observed by the service centre that the handset in question was brought to the service centre in a damaged condition, as its Display and Back Cover was in a damaged condition. Due to damaged condition of the handset, the warranty stood void as per warranty policy. The OP No.2 shared an estimated cost of repair action/replacement of part with the complainant, but he instead of approving the said estimate, straightway, refuse to go for the same. The complainant has already purchased the warranty from Bajaj Allianz General Insurance Co. Ltd., therefore, the liability strictly falls on the complainant and insurance company to bear the cost of repair action.

12.              Shri Atul Mittal, counsel for OP No.3 has mainly argued that the complainant filed the present complaint just to extract the amount of compensation on false grounds. The complainant never approached to the OP No.3 nor informed it. The complainant is not entitled to any relief, because he violated the term and conditions of the insurance policy.

13.              From the pleadings and evidence of the case, it is admitted case of the parties that the complainant purchased the mobile in question from the OP No.1 on 09.08.2017, vide bill Ex.C1. It is also admitted case that the said mobile was insured with the OP No.3 for the period from 09.08.2017 to 08.08.2018 for a sum of Rs.15,990/-, vide insurance policy Ex.C3.

14.              As per complainant, on 04.12.2017, the said mobile was damaged in a roadside accident and in this regard, the complainant lodged the claim form with the OP No.3 on 09.01.2018 Ex.C4, who had neither repaired his mobile nor paid the claim, despite repeated requests. The complainant had approached to OP No.2 i.e. authorized service centre for repair of the mobile and produced document Estimate as Ex.C2 in this regard, who refused to repair the same being warranty void due to physically damaged. On the other hand, the OP No.3 mainly contended that the complainant had himself violated the terms and conditions of the policy in question.

15.              The complainant purchased the mobile on 09.08.2017 and it was allegedly damaged on 04.12.2017, meaning thereby, the mobile was damaged within one year warranty period. Moreover, the mobile of the complainant was insured with the OP No.3 w.e.f. 09.08.2017 to 08.08.2018, vide insurance policy Ex.C3 and the mobile was physically damaged on 04.12.2017, meaning thereby, at the day of damage to the mobile, the policy in question was in existence. Since the mobile of the complainant was physically damaged due to coming under the vehicle and from perusal of para “Special perils” of the insurance policy Ex.C3, it is evident that case of physical damage to the mobile of complainant fallen under the policy in question. No doubt, the OP No.3 has taken plea in his reply that the complainant himself violated the terms and conditions of the insurance policy Ex.C3, but it failed to produce any documentary evidence to prove his above contentions, whereas, on the other hand, to support his case, the complainant produced his affidavit as Ex.CW1/A alongwith bill Ex.C1, Estimate Ex.C2, insurance policy Ex.C3 and Claim Form Ex.C4.

16.              Keeping in view the above mentioned facts and circumstances of the case, we are of the considered view that the duly insured mobile in question of the complainant was physically damaged in a roadside accident, which falls within the ambit of the insurance policy Ex.C3, and the OP No.3, being insurance company, failed to pay the genuine claim amount to the complainant. Hence, the OP No.3 is deficient in providing the services to the complainant. Since the mobile in question was insured for a sum of Rs.15,990/-, vide insurance policy Ex.C3, therefore, the OP No.3 is liable to pay the said amount to the complainant. So far as, the complaint filed against OPs No.1 & 2 is concerned; it may be stated here that neither any specific allegations have been leveled by the complainant, against OPs No.1 & 2, nor it has been proved. Therefore, complaint filed against OPs No.1 & 2, is dismissed.

17.              In view of the aforesaid discussion, we hereby dismiss the complaint against OPs No.1 & 2 and allow the same against OP No.3, and direct the OP No.3 to pay the insured amount of Rs.15,990/-, to the complainant alongwith interest @6% simple per annum, from the date of filing the claim with it by the complainant i.e. 09.01.2018, vide claim form Ex.C4, till its actual realization, subject to deposition of damaged mobile in question, with the OP No.2 authorized service centre, by the complainant. The OP No.3 will further pay Rs.5,000/- as compensation, to the complainant, for mental agony and physical harassment, suffered by the complainant. The OP No.3 is further directed to comply with the aforesaid directions within the period of 30 days from the date of preparation of certified copy of this order, failing which, the complainant will be at liberty to initiate proceedings under Sections 25/27 of the Act, against the OP No.3. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost, as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Dated:26.04.2022.

    

                                                                                        (Neelam Kashyap)               

(Neelam)                    (Issam Singh Sagwal)                   President,

Member.                    (Member).                                     DCDRC, Kurukshetra.           
 

 

 

 

Typed by: Sham Kalra, Stenographer.