Order dictated by:

Sh.Anoop Sharma,Presiding Member

1.       Navdeep Kumar has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that   complainant purchased one Mobile Phone Samsung S7 Edge Gold having IMEI No. 357327070492117 from opposite party No.2 vide retail Invoice No. 6414 dated 20.4.2016 for an amount of Rs. 57000/-.  Opposite party No.3 is authorized service centre of  opposite party No.1. At the time of purchase of the said mobile phone, the complainant insured the aforesaid handset mobile phone from opposite party No.4, which covers the risk of physical damage, liquid damage, theft, data loss and viruses to the said mobile phone. On 19.10.2016 while attending the call the said mobile phone accidently fallen down on the road and a car ran over the said mobile phone and the same was totally damaged physically. The complainant visited  opposite party No.4 on 20.10.2016, who collected amount of Rs. 2850/- from the complainant and issued a job sheet dated 20.10.2016 with respect to the physical damage to the said mobile phone and assured the complainant that the mobile phone will be repaired within 7 to 10 days . Thereafter the complainant went to opposite party No.4 time and again and requested to return the mobile phone to the complainant after its repair, but opposite party No.4 put off the matter under one pretext or the other  and till date they have failed to repair the mobile phone  and the same is still lying in the custody of opposite party No.4. Since the defect has developed during the warranty period of one year, therefore, opposite parties are liable either to replace the defective mobile with new one or to refund the price of the same to the complainant. But the opposite parties flatly refused to accede to the genuine requests of the complainant. Vide instant complaint, complainant has sought for the following reliefs:-

(a)     Opposite parties be directed either to replace the said damage set with new one of same make and model or to refund the price  of the same to the tune of Rs. 57000/- alongwith interest.

(b)     Compensation of Rs. 20000/-  alongwith litigation expenses may also be awarded to the complainant.

Hence, this complaint.

2.       Opposite parties No.2 & 4 did not put in appearance despite service of notice, as such they were ordered to be proceeded against ex-parte.

3.       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. Admittedly the handset in question has been damaged by falling on the road and car ran over the mobile phone in question and the handset was totally damaged physically. Thus there is no case of any kind of defect in the handset ; that the handset  has been physically damaged by falling on the road. Due to breaking of the handset, it was not covered under warranty and repair, if any has to be on chargeable basis only .  Till date the complainant has never approached  the answering opposite party or any of its service centre for  repair of the handset in question. Thus no cause of action arose to the complainant to file the present complaint. The liability of the answering opposite party is subject to  terms and conditions of the warranty as  mentioned in warranty card supplied with the product; that the complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence . The complainant has sought replacement of mobile  which is not permissible under the law and also under the terms and conditions 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. That defect due to physical damage  , the answering opposite party is not responsible for the same. In the present case the handset has been damaged/broken due to falling on road. There is no inherent manufacturing defect in the handset , as such the complainant is estopped from filing the present complaint against the answering opposite party; that there is no deficiency of service or breach of contract on the part of the answering opposite party. The answering opposite party or its service centre has never denied after sales service to the complainant and they are still ready to provide service to the complainant subject to warranty terms and conditions on chargeable basis. The complainant is not entitled for free of cost repair or replacement of handset or refund of price from answering opposite party . On merits facts narrated in the complaint have specifically been denied and a prayer for dismissal of complaint was made.

4.       Counsel for complainant has made statement that he does not claim any relief against opposite party No.3.

5.       In his bid to prove the case Sh. Munish Kohli,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.CW1/A, copy of bill Ex.C-1, copy of job sheet Ex.C-2, copy of insurance cover Ex.C-3, copies of e-mails Ex.C-4 to Ex.C-7 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 Sh.Anindya Bose, Deputy General Manager Ex.OP1/1 and closed the evidence on behalf of opposite party No.1.

7.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

8.       On the basis of the evidence on record, ld. Counsel for opposite party No.1 has vehemently contended  that there is no case of any kind of defect in the handset and the handset  has been physically damaged by falling on the road.  It was submitted that due to breaking of the handset, it was not covered under warranty and repair, if any has to be on chargeable basis only .  It was further submitted that till date the complainant has never approached  the answering opposite party or any of its service centre for  repair of the handset in question. The liability of the answering opposite party is subject to  terms and conditions of the warranty as  mentioned in warranty card supplied with the produced. Since there is no inherent manufacturing defect in the handset , as such the complainant is not entitled for free of cost repair or replacement of handset or refund of price from answering opposite party . Ld.counsel for opposite party No.1 has submitted that there is no deficiency  of service on the part of the opposite party No.1.

9.       But ,however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant purchased mobile phone in dispute on 20.4.2016 from opposite party No.2 on payment of Rs. 57000/- vide retail invoice , copy whereof is Ex.C-1 on record. It is further case of the complainant that  at the time of purchase of said mobile phone, the complainant got insured the aforesaid handset mobile phone from opposite party No.4 and Apps daily i.e. opposite party No.4 issued policy in favour of the complainant, copy whereof is Ex.C-3 on record .  It was not the case of the complainant that opposite party No.2 got the mobile handset of the complainant insured from opposite party No.4. As such opposite party No.2 has only sold the mobile handset to the complainant and there is no deficiency of service on the part of opposite party No.2. It was the case of the complainant that mobile phone in dispute accidently fallen down on the road and a car ran over the said mobile phone  and the same was totally damaged physically. The complainant approached opposite party No.4 on 20.10.2016 and submitted the aforesaid mobile phone  and also reported the additional damage details to opposite party No.4, where opposite party No.4 collected amount of Rs. 2850/- and issued a job sheet dated 20.10.2016 with respect to physical damage to the said mobile phone  and assured the complainant that they will repair the said mobile phone and hand over the same to the complainant within 7 to 10 days. Copy of job sheet accounts for Ex.C-2 on record. But , however, opposite party No.4 has failed to redress the grievance of the complainant and still the mobile phone has been in the custody of opposite party No.4.  The evidence adduced by the complainant has gone unrebutted on record as opposite party No.4, despite due service, did not opt to appear and contest the complaint and thereby the opposite party No.4 impliedly  admitted the claim of the complainant, which further shows that the opposite party No.4 had no defence to offer for contesting the case of the complainant. The very fact that opposite party No.4 has been retaining the mobile handset in dispute since 20.10.2016 . However, the loss covered relates to risk of theft, burglary, liquid & physical damage which is covered under the Insurance policy, copy whereof is Ex.C-3 on record. But , however, opposite party No.4 has failed to  pay the insurance claim to the complainant without any reasonable excuse. In our considered opinion, complainant has proved on record the allegations made in the complaint against opposite party No.4 and opposite party No. 4 is under legal obligation to indemnify the loss of the complainant  by replacing the mobile handset of the complainant with new one of same make or model or to refund the price of the same to the tune of Rs. 57000/- i.e. price of the insured mobile hand set . The complainant is also entitled to receive a sum of Rs. 3000/- on account of deficiency in service on the part of opposite party No.4 besides that the litigation expenses  are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the receipt of copy of the order ; failing which , awarded amount  shall carry interest @ 9%  p.a.from the date of filing of the complaint until full and final recovery. Complaint against opposite parties No. 1, 2 & 3 fails and the same is ordered to be dismissed against opposite parties No.1, 2 & 3. . 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

Dated : 24.5.2017