DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 197/2016
Ms. Vanita Solomon
W/o Shri Solomon R.John
R/o H.No.716/4, Fatehpuri,
Church Compound
Delhi-110006. ….Complainant
Versus
- M/s Gadget Café the smart store
Venkateshwara Distributors Pvt. Ltd.
Lajpat Nagar-II,
New Delhi-24
- Apps You Need 123, 2nd Floor,
Block-A, Corenthum Tower,
Sector-62, Noida ….Opposite Parties
Date of Institution : 04.07.16 Date of Order : 10.10.19
Coram:
Ms. Rekha Rani, President
Ms. Kiran Kaushal, Member
ORDER
Member - Kiran Kaushal
- Succinctly put, the complainant purchased an I-phone 6 plus model for Rs.68,000/- from M/s Gadget Cafe the Smart Store hereinafter referred to as OP-1 and got it insured from Apps Unit 123 (OP-2).
1.1 It is averred by the complainant that within short period of purchasing the mobile phone it accidently got damaged and the complainant sought claim form the insurance company. The insurance company required the original bill to process the claim of the complainant. The complainant had temporarily misplaced the original bill therefore requested OP-1 to issue a duplicate bill of the purchased phone. But OP-1 maneuvered/ gave a wrong duplicate bill which helped the insurance company to repudiate his claim stating that the bill number mentioned in the insurance claim at the first instance was not matching with the invoice bill number produced later. Copy of original bill is marked as Mark-A and copy of duplicate bill is marked as Mark-B for the sake of identification.
1.2 It is next averred that in accordance to the terms and conditions of the policy of the Insurance Company it was mandatory and obligatory to reimburse the appropriate amount of the I-phone in situation of an accident causing damages to the I-phone. Thus, the complainant submitted the I-phone with the insurance company to take appropriate steps to make good of the loss suffered by the complainant on account of accident and damage to the phone.
1.3 It is noticed that the New India Assurance Company Ltd. was impleaded as OP-3 by moving an application which was allowed as it was considered to be necessary party in the present complaint.
2. Notices were duly served to OP-1, OP-2 and OP-3. None appeared on behalf of OP-1 and OP-3 to contest the case. They were proceeded against exparte vide order dated 05.12.2016.
3. OP-2 contested the complaint submitting inter-alia that the complainant raised an insurance claim against the alleged damage of the insured mobile phone on 02.04.16 against which prerequisite documents were collected from the complainant on 08.04.2016. It is further submitted by the OP that the complainant had mentioned the invoice number of the insured mobile phone as 2281 on the policy duly signed by the complainant whereas the scanned copy of the invoice of the insured mobile phone submitted along with the claim form mentioned invoice No. 08LN-01019. It is further submitted that on the basis of the documents submitted by the complainant required for processing the insurance claim it was observed that the invoice submitted by the complainant bearing invoice No. 08LN-01019 is an incorrect/ fake/ forged / fraudulent invoice as per the law and violates the terms and policy of OP-3. In the light of the said observations OP-3 rejected the insurance claim of the complainant which was duly communicated to him vide email dated 26.05.2016.
4. Rejoinder and evidence by way of affidavit is filed by the complainant.
5. OP-2 did not file its evidence by way of affidavit.
6. Complainant in person is heard and the record is perused carefully.
7. Going through the original bill marked as Mark-A and duplicate bill marked as Mark-B with the complaint it is noticed that the invoice numbers of both the bills are different whereas the description of the phone as well as IMEI No. i.e. 359247066635487 is same. This difference in the two bills leads us to the conclusion that the 2nd bill was not duplicate but was new/ different bill. Thus, OP-1 is found to be guilty of unfair trade practice as by issuing an incorrect bill to the complainant, the complainant’s rightful claim got rejected.
8. OP-2 rejected the claim of complainant on account of discrepancies in the bills. But on finding the Original Bill the complainant had submitted the same to OPs but still his claim was not approved. Further, acknowledging the fact that the handset in question was submitted in the office of the Insurance Company and has never been returned to the complainant, OP-2 and OP-3 cannot absolve themselves of their irresponsibility.
9. OP-2 has filed judgment of National Company Law Tribunal, Allahabad Bench dated 23.10.2017 in the matter of GBB Enterprises vs. YMS Mobitech Pvt. Ltd. wherein a Moratorium is declared with the directions :-
“That the Bench hereby prohibits the institution of suits or continuation of pending suit or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFESI Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.”
It is pertinent to mention that in order 04.08.17 OP-2 has submitted that Apps You Need (OP-2 in the present complaint) is only a brand name of M/s YMS Mobitech Pvt. Ltd. Further it is noticed that affidavit of authorized persons of M/s YMS Mobitech Pvt. Ltd. is given along with the reply of OP-2. Therefore considering the fact that OP-2 is brand name of YMS Mobitech Pvt. Ltd. and a Moratorium has been declared on the said company, recovery from OP-2 shall be subject to outcome of proceedings under Insolvency & Bankruptcy Act.
10. OP-1 and OP-3 were duly served but chose not to contest the case of the complainant. Hence, the averments made in the complaint qua OP-1 and OP-3 have remained unchallenged and uncontroverted. There is no reason to disbelieve the version of the complainant.
11. Hence, in the light of the above discussions the complaint is allowed; OP-1, OP-2 and OP-3 are found to deficient in service & indulging in unfair trade practice. Therefore, OP-1, OP-2 and OP-3 jointly and severally liable to pay to the complainant Rs.68,000/- along with interest @ 6% per annum from the date of filing of the complaint till realization. Additionally OP-1, OP-2 and OP-3 are directed to pay Rs.10,000/- for causing agony, harassment to the complainant within a period of two months from the date of receipt of the copy of this order failing which the OP-1, OP-2 and OP-3 shall become liable to pay interest @ 9% per annum on Rs.68,000/- from the date of filing of the complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 10.10.19.
