Date of filing: 17.10.2016 Date of disposal: 08.03.2018
Complainant: Shyamal Pal, S/o. Late Mahadeb Pal, residing at Mehedi Bagan (Beside Durgamondir), PO. & PS: Burdwan Sadar, District: Burdwan Purbo, PIN – 713 101.
Opposite Party: 1. Saluja Mobiles (Retailer Shop) represented by Proprietor/Retailer, namely, Satpal Singh Saluja, having its office at 3&4 Municipal Complex, PO. & PS: Burdwan Sadar, District: Burdwan, PIN – 713 101.
2. Apps Daily Solutions Pvt. Ltd., represented by General Manager, having its Head Office at Shop No. 202, D-Wing, Shanti Shopping, g-center, Mira Road East, Near Railway Station, Mumbai – 401 107, Maharashtra, Having its present office at 6th Floor, C-Wing, Oberoi Garden Estates, Chandivali Farm Road, Andheri (East), Mumbai – 400 072, India.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Chayan Bhattacharyay.
Appeared for the Opposite Party No. 1 : Ld. Advocate, Shovan Kumar (ex parte).
Appeared for the Opposite Party No. 2: None (ex parte).
J u d g e m e n t
The present application u/S. 12 of the C. P. Act, 1986 filed by the complainant against the Ops on the ground that he went to the retailing shop of OP-1 as he wants to buy one Samsung android phone on 09.8.2016 and as per advice of the OP-1 he purchased an android phone/Samsung SM-J710F model, IMEI number of the said model is 359473073369148 from the OP No. 1 at the price of Rs. 15,990=00 against Tax invoice being No. 5763/SM /16-17, dated 09.8.2016 with further advice regarding insurance of the said Samsung SM-J710F model android phone and further came to know from the OP-1 that Apps Daily i.e., the OP-2 is one of the greatest insurance company and can get all facility of insurance regarding repair or replacement of phone if damage, theft within warranty period and the complainant can avail the facility for the said phone by furnishing Rs,. 1600/- as service charge including VAT and accordingly on 09.8.2016 complainant also furnished Rs. 1600/- as service charges as per advice of OP-1 and also purchased the plan, namely, Mobile Protection Platinum against Rs. 1,749=00.
The complainant stated that on 06.12.2016 at 6.30 pm when he was to withdraw cash from ATM then the phone fell down and the display/screen of the phone was broken and the complainant then and there went to the office of OP-1 and OP-1 advised him to visit the office of OP-2 along with damaged phone with all the documents and as per advice the complainant went to the branch office of OP-2 and met with the Branch Manager and one Collection Centre Executive, namely, Mr. M. Biswas. They told the complainant that to repair the display/screen Rs, 1,500/- is required as service charge and the complainant furnished the amount of Rs. 1,500/- by cash as service charge in favour of the OP-2 and OP-2 kept the said mobile in their custody for repair after issuing of job sheet to the complainant.
Complainant further alleged that in the last week in the month of March, 2017 he came to know from the office of OP-2 that due to non-availability of parts they are not able to repair the said broken display/screen and further informed they are willing to pay the repairing amount and as per their assumption they also issued one document of Repair Estimate Cash memo and also have one printed mail regarding consent letter from their head office and assumption repairing amount was guessed by them only Rs. 4,768=00.
The complainant also alleged that again on 1st April 2017 he went to the Branch Manager of the OP-2 when he came to know the actual market price rate of repairment of that display of said Samsung-J710F model android phone and found that the office of OP-2 closed their business and no one was able to told in which address they shift their office. Finding no other alternative the complainant rushed to the OP-1 and informed the said fact and further stated that the said phone was in the custody of the branch office of the OP-2 and the OP-1 also informed that in absence of OP-2 they are not in a position to do anything but they can try to return the said phone from the OP-2 and within two days i.e. on 3rd April 2017 the OP-1 returned the said phone without repairing the damaged display/screen with one proforma invoice regarding the exact value of Rs. 4,999/- to repair the display/screen of the said android phone. When the complainant claimed from OP-1 to return the service charges of Rs. 1600/- and the plan purchase Rs. 1,749/- and further when the complainant wants to get back Rs. 1,500=00 then OP-1 used filthy language towards him and threatened him with dire consequence.
Thereafter the complainant went to the Samsung Service Centre, namely, S. P. Infotech office as per instruction of OP-2 to repair the broken display/screen on 06.4.2017. The service centre to repair the broken display screen or parts being no. GH97-18855c and GH96-09606A claimed Rs. 5,858/- including all taxes and issued repair estimate slip and as per their claim the complainant paid the entire amount Rs. 5,858=00 as per claim in favour of the service center, namely, S. P. Infotech and the service center issued one tax invoice being no. 3261063170242120 dated 10.4.2017. As per instruction the complainant again went to the OP-1 and submit tax invoice issued by the said service centre. Again and again complainant contact through phone to the OP-2 and the General Manager gave him direction to send the tax invoice along with proof of bank account in their office website. The General Manager of OP-2 also advised the complainant that further enquiry regarding payment be mailed their official website. As per advice the complainant on 10.4.2017 sent all the documents through mail and one Anirban Sinha received the same replied that they have received the request and are working on it. And thereafter the complainant again on 12.4.2017 at 8.22 pm and also on 18.4.2017 made enquiry regarding refund of payment through mail when General Manager of OP-2 clearly stated that they are not liable to pay or refund any amount for repairing the display/screen but OP-1 being retailer is liable to refund the money and he took the service charge of Rs. 1600/- and Rs. 1749/- and accordingly went to the office of OP-1 and stating all the facts but OP-1 again refused to pay and used filthy abusive language. Finding no other alternative compelled to lodge the present application against OP-1&2.
The cause of action arose on and from 12.4.2017 when complainant mailed his enquiry regarding refund of his payment to repair the screen and finally arose on 06.10.2017 and 09.10.2017 when OP-2 refused to refund the amount to repair the said display/screen.
It appears that after filing the present application u/S. 12 of C. P. Act, 1986 complainant take proper steps for sending summon for appearance to contest the application and it appears that OP-1 appeared and took time for filing written version but ultimately failed to contest the application by filing written version. It also appears that according to postal track report summons were properly served upon OP-2 and inspite of receiving the summon failed to appear and as such this case is fixed for ex parte hearing of both Ops.
Now point for consideration is whether the complainant is able to prove that he is entitled to get money from both OPs as claimed or not?
Decision with reasons:
To prove the claim application complainant is able to produce Xerox copy of tax invoice which shows that he purchased mobile phone (including charger and ear phone) from OP-1 on 09.8.2016 at a price of Rs. 15,990/-, another Xerox copy of tax invoice shows that OP-1 also received Rs. 1600/- from the complainant on 09.01.2016, Xerox copy of plan acceptance form which shows that Mobile Protection Platinum received Rs. 1749/- from the complainant against theft and damage, Xerox copy of job sheet, Xerox copy of paper to show that Rs. 4768/- find for repair estimate for display, Xerox copy of document to show that mobile phone was returned due to non-availability of parts, Xerox copy of proforma invoice, Xerox copy of documents to show that Rs. 5858 .70 paid to S.P. Infotech for total estimate repair cost, Xerox copy of tax VAT invoice along with other documents.
Let us consider how far the complainant is able to prove his own case by submitting Xerox copies of documents it appears first of all that the duty of complainant is to prove that he is a bonafide consumer according to Section 12 of C. P. Act, 1986
In the instant case the complainant is able to prove the same by producing the documents namely (1) Xerox copy of tax invoice which shows that he purchased Samsung android phone from OP-1 at a price of Rs. 15,990/- dated 09.8.2016 (including charger and ear phone) from OP-1 and OP-1 also issued receipt against the money and further appeared that after receiving the summon OP-1 never filed written version never raised any objection regarding purchase of Samsung android phone by the complainant.
So considering such circumstances this Forum has no hesitation to hold that the complainant is a bonafide consumer according to law and further duty is to prove whether there is any deficiency and negligence on the part of the OPs and accordingly it appears that when the complainant purchased the said mobile phone at the price of Rs. 15,990=00 from OP-1 then OP-1 advised him to purchase the insurance for Rs. 1600/- and MPP at price of Rs. 1749/- from OP-2 and for that he should pay Rs. 1600/- and Rs. 1749/- to OP-1 and as per advice of OP-1 he also get protection of newly purchased mobile, the complainant then and there paid the amount of Rs. 1600/- and Rs. 1749/- to OP-1 and also able to produce the documents to prove the same. Further it appears that as per advice of the OP-1 the complainant also went to OP-2 for taking necessary steps to repair and then OP-2 further advised him to pay Rs. 1500/- as service charge and thereafter when the OP-2 failed to repair the same phone after receiving the service charge then informed the complainant that to visit local centre as they failed to repair it due to non-availability of parts and thereafter the complainant went to Samsung Infotech Company for repair as per their advice and also paid Rs. 5858/- for repairing charge.
Now the complainant is able to produce the document to show that he paid full amount to OP-1 as well as OP-2 as per their claim and thereafter he received the receipt against full payment from OP- & 2 and thereafter he contact with the General Manager of the OP-2 and as per his advice he sent all documents including tax invoice through mail but ultimately OP-2 informed that they are not entitled to refund any amount as per claim but OP-1 is only liable to pay the amount as per claim.
Under such circumstances it appears that complainant is able to prove his sufferings, mental pain and agony by producing all the documents for repairing mobile phone within stipulated period as per advice of OP-1 and thereafter OP-2. So the complainant is entitled to get refund of money as per claim.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 231/2017 be and the same is allowed ex parte against OP-1 & OP-2 and the complainant is entitled to get Rs. 5858.70 paisa as repairing cost from OP-1 & OP-2 and also entitled to get Rs. 1,600=00 and Rs. 1,749=00 and also Rs. 1,500=00 received as service charge from both OP-1 & OP-2 including Rs. 10,000=00 as compensation for harassment, mental agony and pain and Rs. 2,000=00 as legal expenses.
Both the Ops are directed to pay the awarded amount to the complainant within 45 days from the date of order, failing which the complainant is entitled to recover the awarded amount by filing execution application.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
