District Consumer Disputes Redressal Commission ,Faridabad.
RBT No. 146/2020.
Date of Instt. of RBT:16.3.2020
Consumer Complaint No.495/2016
Date of Institution: 06.12.2016.
Date of Order: 13.07.2022.
Yashdeep Adhana aged about 20 years son of Shri H.B.Adhana, Resident of Village Tigaon, Adhana Patti, Sub – Tehsil Tigaon, District Faridabad, Haryana.
…….Complainant……..
Versus
1. M/s. Shriram Communication, Branch office at: 5-L/172, NIT, Faridabad – 121001 (Authorized Dealer/Retailer of Apple India Pvt. Ltd.) through its proprietor/principal officer.
2. M/s. T.C.Saluja Solutions Pvt. Ltd., Office: 705, 7th floor, 95 Vishal Bhagwan, Nehru Place, New Delhi – 110 019 (Proposer of MOBICARE Mobile Protection Plan) through its Manager/Principal Officer).
3. The New India Assurance company, 5R/2, B.K.Chowk, NIT, Faridabad, through its Branch/Divisional Manager, (Insurer of mobile vide policy No. 31040146152400000001 valid from 15.10.2015 to 14.10.2016) .
4. Apple India (P) Ltd., 19th floor , Concorde Tower-c, UB City, 24, Vittal Mallya Road, Bangalore – 560001 through its CEO/principal Officer.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Complainant in person.
Opposite party No.1 ex-parte vide order dated 19.01.2017.
Opposite party No.2 given up.
Shri Sanjeev Bansal, counsel for opposite party No.3.
Shri K.S.Rathore, counsel for opposite party No.4.
ORDER:
The facts in brief of the complaint are that the complainant had purchased a mobile (Apple iphone 6) bearing IMEI No. 352091071361946 from opposite party No.1 vide bill/invoice No. 14565 dated 15.10.2015 for Rs.44,000/-. At the time of purchase of the handset, the opposite party No.1 insisted the complainant to purchase MOBICARE Mobile Protection Plan for the insurance of the said handset covering accidental damage, liquid damages, fire and allied perils, theft and burglary, earthquake and flood and opposite party No.1 assured the complainant that in case if any kind of damage as mentioned above was caused to the handset, opposite party No.1 would get refund the entire cost of the mobile handset or provide a new one mobile handset from opposite parties Nos.2 & 3. On believing the words of opposite party No.1, the complainant had got insured his above said mobile handset with the opposite party No.3 through opposite party No.2 i.e. the proposer of opposite party No.1 and paid Rs.2999/- on the same day i.e on 15.10.215 as premium vide policy No. 3140146152400000001 valid from 15.10.2015 to 14,10.2016. Unfortunately on 25.08.2016 the above said mobile handset got physically damaged and the complainant approached the opposite party No.1 for repairing of the same or to provide a new handset to the complainant. Opposite party No.1 took the said damaged mobile handset from the complainant on 26.087.2016 with an assurance that a new mobile handset would be supplied to him. The complainant approaching the opposite party time and again for supply of new handset mobile as per the terms and conditions of the policy, but opposite parties were avoiding the same on the one pretext or the other and at last handed over the repaired mobile handset to the complainant on 06.10.2016 and after checking of the mobile handset the complainant found that the keypad and screen were not working properly and it was got repaired from some local service center not form the authorized service center of Apple company/opposite party No.4. The complainant also approached the opposite parties Nos.2 & 3 but the officials of opposite parties Nos.2 & 3 had not paid any heed towards the grievance of the complainant. The complainant sent a legal notice dated 07.10.2016 to the opposite parties through registered post but all in vain. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay the purchase amount of mobile handset of Rs.44,000/- with interest @ 24% p.a.
b) pay Rs.20,000/- as compensation for causing mental agony and harassment .
c) pay Rs.11,000/ - as litigation expenses .
2. Registered notice sent to opposite party No. 1 on 09.12.2016 not received back served or unseved. Case called several times since morning. But none appeared on behalf of opposite party No.1. More than one month had elapsed. Therefore, opposite party No.1 was proceeded against ex-parte vide order dated 19.01.2017.
3. Shri M.P.Dagar, counsel for the complainant has made a statement on 01.05.2017 that he gives up opposite party No.2 as a party in this case. Accordingly, opposite party No.2 was given up from the array of opposite parties..
4. Opposite party No.3 put in appearance through counsel and filed written statement wherein Opposite party No.3 refuted claim of the complainant and submitted that the present complaint had been filed by the complainant in collusion with the opposite parties Nos.1,2 and 4 and either complainant or opposite parties Nos.1,2 & 4 never lodged any claim with regard to the damaged mobile of the complainant with the answering opposite party as such under the terms and conditions of the policy of insurance, the present complaint was liable to be dismissed on this score alone and the same was premature against the answering opposite party. The complainant was stopped by his act, conduct, omission and commissions from filing the present complaint had clear showed the violation of the terms and conditions of the insurance policy and had breached the contract. Hence, the claim of the complainant had been repudiated by the company legally and rightly and the complainant was not entitled to any compensation from the opposite party. Opposite party No.3 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
5. Opposite party No.4 put in appearance through counsel and filed written statement wherein Opposite party No.4 refuted claim of the complainant and submitted that the provisions and terms of the Apply Warranty specifically exclude damage of products, which was the case in the present matter and the complainant had admitted that the said iphone was damaged and it was repaired by an unauthorized person. The phone in question was damaged due to the complainant’s own fault and not a fault that can be attributed to opposite party No.4 or the device supplied by the opposite party No.4. Ina the present case the complainant had not produced any documentary evidence to show that his iphone was inspected by an authorized service provider of the opposite party NO.4. Opposite party No.4 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
6. The complaint was decided vide order dated 25.08.2017 but aforesaid order was set aside by Hon’ble State Consumer Disputes Redressal Commission, Haryana vide order dated 28.01.2020 and the case was remitted back to the District Forum, Faridabad to decide it fresh in accordance with law with the direction to opposite party to appear before this Forum on12.03.2020.
7. Thereafter counsels for the parties appeared and filed their evidence.
8. We have heard learned counsel for the parties and have gone through the record on the file.
9. In this case the complaint was filed by the complainant against opposite parties - Shriram Communication with the prayer to : a) pay the purchase amount of mobile handset of Rs.44,000/- with interest @ 24% p.a. b) pay Rs.20,000/- as compensation for causing mental agony and harassment .c) pay Rs.11,000/ - as litigation expenses .
To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Yashdeep Adhana,Annx.C1 – Tax invoice, dated 15.10.2015,, Annx.C-2 – insurance policy, Annx. C-3 – premium of Rs. 2999/-, Annx.-4 – legal notice,, Annx.C-5 to C-8 – postal receipts.
On the other hand counsel for the opposite party No.3 strongly agitated and opposed. As per the evidence of the opposite party No.3, Ex.R/A – affidavit of Shri S.C.Lahoti, The New India Assurance Company, 5-
R/2, B.K.Chowk, NIT, Faridabad Ex.R-1 (colly) – policy schedule for package insurance policy(1 to 15).
On the other hand counsel for the opposite party No.4 strongly agitated and opposed. As per the evidence of the opposite party No.4, Ex.RW4 – affidavit of Shri Priyesh Poovanna,S/o Shri U.K.Nanaiah, aged major, Country Legal Counsel, Apple India Pvt. Ltd., 19 floor, concorde Tower C, UB City, NO.24, Vittal Mallya Road, Bengaluru – 560001. Ex.R-1 – Minutes of the Board meeting, Ex.R-2 – Warranty.
10. In this complaint, the complaint was remitted back to the District Forum, Faridabad to decide it fresh in accordance with law with the direction to opposite party to appear before this Forum on12.03.2020 vide order dated 28.01.2020. The complaint was decided by the District Forum, Faridabad on 25.08.2017..
11. It is evident from Annexure C-1 that the complainant has purchased a mobile (Apple iphone 6) bearing IMEI No. 352091071361946 from opposite party No.1 which was authorized dealer of the company opposite party No.4 on 15.10.2015 by paying a cost in cash to the tune of Rs. 44,000/-. The complainant had got insured his above said mobile handset with the opposite party No.3 through opposite party No.2 i.e the proposer of opposite party No.1 and paid Rs.2999/- on the same day i.e. on 15.10.2015 as premium vide policy No. 31040146152400000001 valid from 15.10.2015 to 14.10.2016. Shri M.P.Dagar, counsel for the complainant has made a statement on 01.05.2017 that he gives up opposite party No.2 as a party in this case. As per Annx.C2 He Proposer: M/s. T.C.Saluja Solutions Pvt. Ltd. and its certified retailers, distributors, associates Insurer: New India Assurance company Limited.
Insured & beneficiary/user: The purchaser of the insured equipment alongwith insured product or services whose name is as shown on the invoice. However, his/her Spouse, Children & Parents can use the equipment where the purchase is a company, beneficiary/user shall mean any representative/employee of the company authorized to use the equipment.
12. Counsel for opposite party No.3 i.e. New India Assurance Company Ltd argued at length and stated that they have given up the proposer-cum policy holder who has purchased the insurance policy i.e T.C. Saluja Solutions Pvt. Ltd.. But after that in Section 2 The Scope of Cover in which it has mentioned that “Provided Beneficiary have purchased equipment from insured medium, whereby insured have advised to insurer about the purchase & paid the appropriate premium and issued purchase invoice alongwith handout to the purchase through their medium, insurer in the event of following occurrence to the insured Equipment will approve for repair or replace equipment with same or similar equipment or at their option, will arrange for payment if the equipment.
1. Suffers accidental physical damage to the Insured Equipment and/or such damage cause’s equipment to stop working.”
13. Opposite party No.3 has filed an appeal before the Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula in which opposite party No.2 of the complaint was shown as opposite party No.3 in the appeal. It is a typographical mistake. As per the order passed by the Hon’ble State Consumer Disputes Redressal Commission, Panchkula passed as order dated 28.01.2020 which are as under:
“As per statement of learned counsel for respondent No.1/complainant and keeping in view the facts and circumstances mentioned above that complaint could not be decided effectively in absence of respondent No.2/insurer, the impugned order dated 25.08.2017 passed by learned District Forum, Faridabad is hereby set aside and the case is remanded back to the learned District Forum, Faridabad to decide it fresh in accordance with law. Hence, the appeal is hereby disposed off accordingly.”
14. In this case, the name of the invoice is mentioned Yashdeep Adhana and he is the insured of Apple India Pvt. Ltd.. Iphone is physically damaged on 25.08.2016 which is covered under the insurance policy i.e Annx. C2.
15. After going through the policy, The District Consumer Disputes Redressal Forum now known as District Consumer Disputes Redessal Commission has already decided the case to refund the money. It was remanded back from the Hon”ble State Consumer Disputes Redressal Commisison, Panchkula vide order dated 28.01.2020 for fresh order.
In the previous order dated 25.08.2017 passed by District Consumer Disputes Redressal Forum, Faridabad, there is no deduction as per the policy.
Date of purchase of the Apple iPhone : 15.10.2015.
Date of Damage : 25.08.2016
Almost span of time : 10 months
As per Section 4 Compensation vide Ex.C2 in which it has been mentioned that the sum insured or maximum l
iability shall be calculated as follows by applying depreciation on the claim value only for total loss:
Age | Depreciation |
Upto 180 days | 10% of purchase price |
181 to 365 days | 25% of purchase price. |
Details:
Invoice amount : Rs.44,000/-
Deduction25% of purchase price (181 to 365 days): Rs.11,000/-
Balance amount : Rs.33,000/-
Keeping in view of the above, the Commission is of the opinion that the complaint is allowed.
16. Opposite party No.3 is directed to :
a) pay Rs.33,000/- to the complainant, subject to take the old damage phone.
b) pay Rs.2100/- as compensation for causing mental agony and harassment.
c) pay Rs.2100/- as litigation expenses.
Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 13.07.2022. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
