Complaint under Section 12 of the Consumer Protection Act,1986.

Before:        SH. R.L.AHUJA…………………………PRESIDENT

          SH. ISSAM SINGH SAGWAL …… MEMBER.

Present:       Sh. A.K. Beniwal,  Advocate for the complainant.

                   Sh. H.S. Raghav, Advocate for opposite party no.1.

                   (Defence of op no.1 already struck of)

Opposite parties no.2 and 3 exparte.

                   Sh. A.S. Kalra, Advocate for opposite party no.4.

ORDER

                   The case of the complainant in brief is that complainant purchased one mobile set make Apple Iphone 6S 16GB from opposite party no.1 against cash amount of Rs.49,900/- vide invoice No.22444 dated 23.2.2016 with one year guarantee/ warrantee. That at that time, ops no.1 and 2 also convinced the complainant to get insured his mobile set with op no.3/ insurer of mobile against all risks and liability i.e. theft, burglary, physical damage including fluid damage. It is further averred that in the month of November, 2016 the mobile set of complainant was damaged as the complainant was on bike ride but unfortunately the mobile set was slipped from his pocket and fallen down on the road, as a result of which the mobile set suffered with a damage of display/ screen and was completely dead. The complainant approached to op no.1 alongwith the insurance of mobile set and op no.1 on checking the handset found it to be as damaged but put off the complainant and gave assurance that if he approaches to op no.2, they would redress his complaint. Hence, the complainant approached the op no.2 and lodged a complaint on 5.11.2016 upon which the op no.2 kept the mobile with it and also charged an amount of Rs.2495/- from complainant without any cause or reason despite the fact that at the time of insurance, op no.2 assured that in future if handset of complainant will suffer from any damage, then they will not charge any amount and the complainant is entitled for refund of the said amount. It is further averred that thereafter op no.2 stated that mobile is completely dead and need to be replaced with new one but as new mobile set is not available with op no.2, hence he will have to approach again after 21 days. But when complainant approached to op no.2 after abovesaid period, the op no.2 also put off the matter and did not supply new mobile. Lastly a few days back, the complainant again approached op no.2 but at that time the op no.2 stated to the complainant that they have never kept any mobile set with them and they have never insured his mobile set on any occasion and they have no liability to replace/ change his mobile set and he can do as he can. The op no.2 also misbehaved with the complainant. That the complainant is a reputed person having high reputation in the society and his whole communication depends upon the telephonic communication but due to negligence in the service and unfair trade practice on the part of ops, the complainant has suffered harassment and undergone financial loss, hence the complainant besides the replacement of the mobile set is also entitled for compensation of Rs.2,00,000/-. That the complainant also got served a legal notice upon ops on 31.1.2017 but op no.1 has refused to receive the notice intentionally and deliberately whereas the op no.2 in collusion with postal authorities has forged the postal report by mentioning as address change. The op no.3 after receipt of notice did not give any reply to the same whereas op no.4 has replied the said notice through email in a vague and casual manner by way of escaping itself from the liability. Hence, this complaint.

2.                On notice, opposite party no.1 appeared through counsel but did not file any reply despite availing numerous opportunities including last opportunities and therefore, the defence of op no.1 was struck of.

3.                Opposite parties no.2 and 3 did not appear despite notice and were proceeded against exparte.

4.                Opposite party no.4 appeared and filed reply raising certain preliminary objections. It is submitted that it is a settled position of law that manufacturer cannot be made liable until it is proved by adducing expert evidence that there was any manufacturing defect and the present case is not related to any manufacturing defect. The complainant met with an accident in the month of November 2016 and the device’s display was damaged. As the device was allegedly insured by op no.3, it is the liability of op no.3 to repair or replace the said device as per the terms of insurance policy agreed between op no.3 and complainant. The op no.4 never tried to deny any service to the complainant, in fact the complainant never complained about the iPhone being faulty of having manufacturing defects in it. It is further submitted that as per warranty policy, the complainant should visit an Apple Authorized Service Provider to diagnosis his device and seek for the repair or replacement of the disputed device. However, he did not visit any of the service provider and allowed a third party intervention rendering the device out of warranty. Further the accidental damages are not covered by the warranty policy provided by op no.4. With these averments, dismissal of complaint qua op no.4 has been prayed for.

5.                The complainant and op no.4 then led their respective evidence by way of affidavits and documents.

6.                We have heard learned counsel for complainant as well as learned counsel for opposite party no.4 and have perused the case file carefully.

7.                The perusal of the record reveals that complainant in order to prove his complaint has furnished his affidavit Ex.CW1 in which he has reiterated all the averments made in his complaint. He has also furnished affidavit of Sh. Harman Deep Singh Ex.CW2,  copy of legal notice Ex.C1, postal receipts Ex.C2, copy of insurance document Ex.C3, Ex.C4, copy of job sheet Ex.C5, copy of bill Ex.C6, copy of detail of mobile Ex.C7 and copy of adhar card Ex.C8. On the other hand, op no.4 produced affidavit of Sh. Priyesh Poovanna, Country Legal Counsel Ex.R1, copy of minutes Ex.R2 and copy of warranty Ex.R3.

8.                From the evidence of complainant, it is proved fact on record that complainant had purchased a mobile from opposite party no.1 for a sum of Rs.49,900/- vide invoice No.22444 dated 23.2.2016. As per allegations of complainant, he had got insured the mobile in question from opposite parties no.2 and 3 through op no.1. In the month of November, 2016 the mobile of the complainant fell down on the road when he was driving the motor cycle and as a result of which the screen of the mobile was damaged. The copy of job sheet dated 5.11.2016 Ex.C5 reveals that mobile was deposited with op no.2 but op no.2 did not return the same. From the job sheet Ex.C5 it is also revealed that op no.2 charged an amount of Rs.2495/- from the complainant despite insurance of the mobile. So, it appears from Ex.C5 that mobile of complainant is lying with op no.2 since 5.11.2016 and has not been returned to him due to reason best known to op no.2. Though it was legal obligation of ops no.1 to 3 either to get mobile of the complainant repaired and make same defect free or to give replacement of the mobile to the complainant as per terms and conditions of the insurance contract. Since op no.1 did not file any written statement even after availing number of opportunities as a result of which defence of op no.1 was struck of and ops no.2 and 3 did not put appearance and were proceeded against exparte, so evidence led by complainant goes as unchallenged and unrebutted against ops no.1 to 3. Though, complainant has impleaded as op no.4 who is manufacturer of the mobile but he has not led any evidence against op no.4 from which it could be presumed that there was any manufacturing defect in the mobile of complainant for which there was legal obligation of op no.4 to provide services to the complainant as per terms and conditions of the warranty. So, complaint against op no.4 does not appear to be maintainable and same is hereby dismissed.

9.                In view of above discussion, we allow the present complaint qua opposite parties no.1 to 3 and direct them to get the mobile of complainant repaired without any cost and to make it defect free even by replacing any part and to hand over the same to the complainant within 15 days from the date of receipt of copy of this order. In case it is found that mobile is not repairable, then ops no.1 to 3 shall be liable to give replacement of the mobile with new one of the same make and model within further period of 15 days or in the alternate to refund the price of the mobile in question. We also direct op no.2 to refund Rs.2495/- charged by it to the complainant. We further direct the ops no. 1 to 3 to pay a sum of Rs.3000/- as composite compensation and litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.   

Announced in open Forum.                                                                President,

Dated:14.12.2018.                                      Member                District Consumer Disputes

                                                                                                 Redressal Forum, Sirsa.