Order dictated by:
Sh.Anoop Sharma, Presiding Member
- Vishal Sehgal complainant has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that complainant has purchased mobile set of Samsung Company model S6(329B) IMEI-357215060806695 for Rs. 49000/- vide Invoice No. 2333 dated 18.5.2015 from opposite party No.2. At the time of purchase of this mobile set, the promoter of Insurance company namely Mamta of Syska Gadget Secure i.e. opposite parties No.3 & 4 was present at the show room of opposite party No.2, who provided special offer of 10% off on Uni-com Suraksha i.e. Insurance & cashless repair, antivirus & other Apps etc and asked the complainant to get the mobile set insured . The complainant purchased one Syska kit of Code 2399 for Rs. 1999/- which was duly paid by the complainant on the same day against bill No. 2340 dated 18.5.2015 . Said insurance kit bears No. 44635954, SGI-1999-96603390. On 15.10.2015, during the warranty period of the said mobile set and its insurance validity, the complainant met with an accident at Hall Bazar, Amritsar in which the said mobile set was badly damaged. The complainant made online complaint to the company regarding damage to the mobile set and the Insurance kit. The complainant also informed opposite party No.2 and the Insurance promoter and requested them to replace the mobile set, who further informed the company to this effect. The damaged mobile set was also shown to them. The company told that although the mobile set was in the name of Vishal Sehgal but the insurance kit was issued in the name of Tushar, as such they refused to entertain the complaint and to replace the mobile set with new one. It appears that the promoter had wrongly mentioned his name as Tushar in place of Vishal Sehgal and in this regard Miss Mamta, promoter of M/s. Talwar Enterprises had tendered her affidavit confirming that the opposite party No.4 had sold the said mobile set to the complainant. The opposite parties are jointly and severally liable to hand over the new mobile set to the complainant in place of the damaged set but they intentionally denied the genuine claim of the complainant. The complainant has sought for the following reliefs vide instant complaint:-
- Opposite parties be directed to make full payment of the mobile set alongwith interest @ 18% p.a. or to replace the damaged set with new one of the same make and model ;
- Compensation of Rs. 25000/- be also paid to the complainant.
- Opposite parties be also directed to pay litigation expenses of Rs. 10000/-.
Hence, this complaint.
2. Upon notice, opposite party No.1 appeared and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that present complaint is bad for mis-joinder of parties. The answering opposite party has unnecessarily been impleaded as party to the present complaint. The handset in question is not covered under warranty being physically damaged as admitted by the complainant in his complaint. The repair of physically damaged handset is on chargeable basis only as per warranty terms and conditions mentioned in warranty card supplied with the product; that the complainant has neither alleged any specific irreparable manufactured defect and inferior quality of the specific part of the product nor filed any documentary evidence . In the absence of any expert evidence the claim cannot be allowed ; that the complainant has sought refund of price or replacement of mobile which is not permissible under the law and also under the terms of warranty. The replacement or refund is only permissible where defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. In the present case the handset has been physically damaged in an accident. Hence, the handset was not covered under warranty and repair will be on chargeable basis only ; that there is no deficiency of service or breach of contract on the part of answering opposite party. The answering opposite party or its service centre has never denied after sale services to the complainant as per warranty terms and conditions. As such the complaint against the answering opposite party is liable to be dismissed with cost. On merits, it was denied for want of knowledge that at the time of purchase of handset the promoter of insurance company opposite parties No. 3 & 4 provided special offer of 10% off on uni-com Suraksha, antivirus and other Apps. It was also denied for want of knowledge that opposite parties No. 3 & 4 sell kits of Syska of 2399 code to opposite party NO.2 for further sale to the mobile purchasers. It was denied for want of knowledge that on asking of Mamta, promoter of Insurance company, complainant purchased one Syska kit of code 2399 for Rs. 1999/- on the same day against bill No. 2340 dated 18.5.2015 issued by opposite party No.2. While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite parties No. 5 & 6 filed their joint written version taking certain preliminary objections therein inter-alia that complainant has not approached this forum with clean hands and is guilty of suppressing the real facts from the knowledge of this Forum ; that the complainant has no locus standi to file the present complaint ; that the complaint is bad for non-joinder of necessary and proper party and is liable to be dismissed on this score only. On merits, it was submitted that the policy issued is subject to certain terms and conditions in the policy documents and terms settled between the parties. The complainant has violated the terms and conditions of the policy and as per policy terms and conditions it is necessary to call toll free customer care within 48 hours. But in this case the complainant never informed the answering opposite parties within 48 hours . It was further submitted that at the time of purchase of said mobile set in question, the complainant himself registered his name as Tushar Sehgal and also got signed in the name of Tushar Sehgal and after accident the complainant informed the replying opposite party that he was going on his bike with his friend and he was driving the bike at that time suddenly a dog came in between of the road and while applying brakes the bike slipped and he fell down and the handset which is in his pant pocket got damaged and its screen was damaged. It was further submitted that the customer name (Tushar Sehgal) is still continued in the software being the software is online and nobody can change the customer informed or personal data. As per terms and conditions of the policy, any kind of damage due to negligence or intentional damage, the claim for the same will be rejected. It was submitted that for the processing and deciding the claim, complainant has to adopt a particular procedure laid down by the company & IRDA and complete necessary formalities so that the company may assess the admissibility of the claim as per policy terms and conditions. The documents required for assessing the admissibility of the claim are as under:-
Covering letter
Original bill on Claimant’s name
Self attested photo ID proof of claimant
Duly stamped and signed SIM Blocking letter or Email copy from service provider duly stamped and signed.
Insurance Claim Form
Cancelled cheque.
In case of total loss or theft, depreciation value will be deducted from the total invoice value of the handset, remaining amount will be transferred to customer’s account.
Within 6 months of registration | 25% depreciation of invoice value |
After 6 months of registration | 50% depreciation of invoice value |
While submitting that the complainant has violated the terms and conditions of the policy, as such the present complaint is liable to be dismissed.
4. Opposite parties No.2,3 & 4 did not opt to put in appearance despite service, as such they were ordered to be proceeded against ex-parte.
5. In his bid to prove the case Sh.Inderjit Lakhra,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-8 and closed the evidence on behalf of the complainant.
6. To rebut the aforesaid evidence Mrs.Preeti Mahajan,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Anindya Bose, Deputy General Manager Ex.OP1/1 and closed the evidence on behalf of opposite party No.1.
7. On the other hand Sh. Sanjeet Singh,Adv.counsel for opposite parties No. 5 & 6 tendered into evidence affidavit of Sh. Vicky Bathla Ex.OP5,6/1, copy of terms and conditions Ex.OP5,6/2 and copy of job card Ex.OP5,6/3 and closed the evidence on behalf of opposite parties No.5 & 6.
8. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of opposite party No.1.
9. On the basis of the evidence on record, ld.counsel for the opposite party has vehemently contended that it is admitted that complainant purchased mobile set of Samsung Company against Invoice No. 2333 dated 18.5.2015 for a sum of Rs. 49000/- from opposite party No.2 , copy of bill/invoice accounts for Ex.C-7. The complainant got the mobile phone insured from the opposite party after paying a sum of Rs.1999/- as premium. It is the case of the complainant that during the warranty period of the said mobile set, the complainant met with an accident at Hall Bazar, Amritsar in which the said mobile set was badly damaged. It is further the case of the complainant that mobile phone in dispute was damaged during the subsistence of the insurance policy and the complainant informed opposite party No.2 as well as the Insurance promoter and requested them to replace the mobile set. They further informed the company, who told that although the mobile was in the name of Vishal Sehgal but the Insurance kit was issued in the name of Tushar Sehgal and as such they refused to entertain the complaint and to replace the mobile set with new one. In this regard complainant has tendered affidavit of Miss Mamta, Promoter of Insurance policy , copy of which is Ex.C-2 on record, who has stated in her affidavit that the complainant has purchased one Syska Kit of code 2399 for Rs. 1999/- but while entering the particulars of the complainant, the name of the complainant was wrongly mentioned as Tushar in place of Vishal Sehgal by her due to inadvertence. it is contended that there is neither any deficiency in service on the part of the opposite parties nor the complainant is entitled to relief prayed for and it is contended that complaint is liable to be dismissed and the same may be dismissed .
9. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the mobile handset in dispute purchased by Vishal Sehgal, complainant was damaged in an accident on 15.10.2015. The complainant has immediately informed the company within 48 hours of the incident . As per terms and conditions of Syska Gadget Secure policy Ex.OP5,6/2 in case of total loss or theft, depreciation value will be deducted from the total invoice value of the handset, remaining amount will be transferred to customer’s account as under:-
Within 6 months of registration | 25% depreciation of invoice value |
After 6 months of registration | 50% depreciation of invoice value |
Since the mobile hand set in dispute was purchased for an amount of Rs. 49000/- and the same was damaged within a period of 6 months of the purchase thereof, complainant was entitled to 75% of the value of the mobile hand set in dispute from opposite parties. Counsel for the opposite parties could not refute the clause of the insurance cover on the point of payment of insurance claim. In such a situation the claim of the complainant is required to be allowed to the extent of 75% of the price of the mobile hand set in dispute .
9. From the above discussion, we are of the considered opinion that complainant is entitled to Rs. 36,750/- i.e. 75% of the value of the mobile set (49000/- minus 12,250/- = Rs. 36,750/-) . Opposite parties No.2 to 6 are directed to pay Rs. 36,750/- alongwith interest @ 9% p.a. from the date of filing of the complaint till realization. Complaint stands allowed accordingly . Cost of litigation are assessed at Rs. 1000/-. Complaint against opposite party No.1 fails and the same is ordered to be dismissed against opposite party No.1. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum (Anoop Sharma)
Dated : 23.1.2017 Presiding Member
/R/ ( Rachna Arora )
Member
