CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 15 ^th  day of December, 2016

PRESENT  : SMT. SHINY.P.R, PRESIDENT                           Date of filing: 22/02/2016

                  : SMT.SUMA K.P, MEMBER

                  : SRI. V.P.ANANTHA NARAYANAN, MEMBER

CC/26/2016

      Riyas Babu.M.,

      S/o. Late. Muhammad,

      Karath House,K.S.Medu,

      Mudappallur, Alathur,Palakkad-678705.

     (By Adv.Sachindas.P.)                                  :   Complainant

                                                        Vs

1. Mr.Sivan,

(Manager) Oxygen,“The Digital Shop”,

     Oxygen Digital Tower, Court Road, Palakkad-678001.

2. The Officer in charge,

Blue point,12/657-6, Ist floor,

M5 Business Centre,

HPO Road, Palakkad-678001.                         :     Opposite parties

3. Proprietor,

Apps Daily Solution Private Limited,

D3137-39 Oberoi Garden Estates,

Chandhivali Farm Road,

Andheri(E), Mumbai-400072.

4. The Manager,

Oxygen,”The Digital Shop”,

Oxygen Digital Tower,

Court Road, Palakkad-678001.

O R D E R

By Sri. V.P.Anantha Narayanan,Member

Brief facts of the case:-

The complainant is residing in the above address and the opposite party is carrying out its business in the address shown in the above cause title.

The complainant purchased Samsung Mobile Set having model no:SM-J2006 Sl no: R28G90PBKPB with IMEI number 35350807789 on 05/10/2015 from the first opposite party for an amount of Rs.9000/- ( Rupees Nine Thousand Only).

It is made to believe that an insurance policy shall be taken to insure the set from any claim as stated in the apps daily mobile protection. All the risk will be protected under the policy of insurance as per its terms and conditions. Such matter of insurance was taken by way of a package of remitting Rs.599/-(Rupees Five Hundred and Ninety nine only). They said insurance is a coverage of one year duration. That insurance was registered by mobile application.

While the things stand so, the mobile sets display was not functioning and the display was broken. The set was entrusted for service at the first opposite party and good inward note was given to the complainant on 11/01/2016. Later the set was returned without rendering any service to the complainant and advised to go for the authorized service of Samsung at second opposite party. The second opposite party took the set for service on 15/01/2016 and the set is in the handsof the second opposite party at present.

Despite several demands to return the repaired set or the amount as insured on many occasions, the opposite party is on attending plea of the complainant. It is known to the opposite party that set is insured and the opposite party is liable to return the price amount without any objection. Such act on the part of opposite party by withholding the amount is unwarranted and unjustifiable. The service rendered by the opposite party is having all its short coming and defective. The fault imperfection and short coming inadequacy in quality and manner of performance, which is required to be maintained has been failed on the part of opposite party. Such act of opposite party which they are supposedly undertaken to be performed in pursuance to the terms and conditions of the policy are not complied with. Such act on the part of opposite party amounts to the deficiency in the service. The opposite party is expected to keep the standard which is supposed to be maintained. The failure of the opposite party has caused great prejudice, moreover the act of the opposite party made a lot of pain and suffering for complainant. The complainant is a painter having on wages of Rs.800/- (Rupees Eight Hundred Only) per day. Customers who are contacting the complainant cannot be contacted because of absence of phone.

There are lot of problems created because of the absence of phone. The complainant is victim of the wrath of his customers. The complainant find it very difficult to overcome the crisis of the situation under such circumstances. The complainant has to undergo lot of pain and suffering as well as loss of money.

All the loss thereby lost shall be compensated at the hands of the opposite party. Opposite parties are joinly and severally liable for the amount as claimed here under different heads:-

Amount Claimed under Different heads

1. Price of the mobile set-Rs.9000/-
2. Wage loss of the complainant- 800*7=Rs.5600/-
3. Traveling-Rs.2000/-
4. Pain and suffering-Rs.5000/-

Total= Rs.21,100/-

The cause of the action for the complainant is on 15/10/2015 when the set was purchased and thereafter on 11/01/2016 the set was sent for repairing and thereafter on 15/01/2016 when the second opposite party has taken the set for repair and return.

            Hence it is most respectfully prayed that this Honorable forum maybe pleased is direct the opposite parties 1,2,3 &4, joint and severally, to give a new mobile handset of Samsung of the same configuration or above, if failed, direct the opposite parties 1,2,3 & 4, to pay a sum of Rs.21,600/-( Rupees Twenty one Thousand Six hundred only) with interest@18% per annum from the date of filing the complaint till realization (amended as per order in IA:-317/2016 dated 29/07/2016, amended on 30/07/2016.

            The complaint was admitted and notice was sent to opposite parties. Notice to 3^rd opposite party was served; name called absent and set exparte. Notice was properly sent to the 2^nd opposite party; not returned and hence notice deemed to be served. Their name also called absent and set exparte. Complainant filed IA 316/2016 to implead 4^th opposite party and IA 317/2016 to amend the complaint. Both IAs were allowed to carry out with him amendment within 7 days. Notice to opposite parties 12 &4 were served but their names were called absent and therefore set exparte. Complainant filed original documents. Exts A1- A6 were marked from the side of the complainant. From the side of opposite party no documents were filed. Complainant was heard.

             The following issues that arise for consideration:-

     1.Whether there is any deficiency of service on the part of opposite

  parties 1,2 and 3?

2.If so, what is the relief and cost entitled to the complainant?

Issues 1 & 2

        The complainant purchased Samsung Mobile set along with “Apps daily mobile protection” assurance + pack- mini which protects the mobile phone of the complainant from theft, burglary, physical damage including fluid damage. Ext A1 evidences the purchase of the mobile by the complainant from opposite parties 1&4. The package of “Apps daily mobile protection” assurance+pack-mini for one year with serial no “ DAP (M) 4609788 is disclosed by Ext A2. The insurance package costed the complainant Rs.599/-(Rupees Five Ninety nine Only) and the insurance coverage was for one year duration- all these mentioned as per Ext A2. Ext A3 mentions that OP1 registered the insurance according to the instructions contained in the OP3’s brochure and activator card with serial no: DAP(M) 4609788 and activation secret code: 1a66c4URND.

Since the mobile set display was not functioning and the display was broken, the complainant handed over the same to the OP numbers 1 and 4 for service. The set was insured by OP3 through OP 1 &4. For the receipt of the mobile set of the complainant for service, Goods inward note was issued to the complainant by OP1 &4 which is testified by Ext A5. Ext A4 is brochure issued by OP3 which mentions insurance claim formalities of “Apps daily”.

According to the words of OP 1 &4, the complainant entrusted the mobile handset to OP2 after informing them that the mobile handset was insured with OP3.

Ext. A6 is a temporary word order no: 3303 dtd 15/01/2016 which mentions the contact details of the complainant and the technical and identification details of the mobile handset of the complainant. OP2 demanded money for the mobile handset of the complainant which was rectified and kept, according to the complainant.

From the above it is understood that the complainant handed over the mobile set for repair and service to OP1, the same was returned to him without servicing and he was told to contact the OP2 for servicing. Accordingly the complainant handed to the mobile set to the OP2 who is the authorized service centre of Samsung. It is also understood that OP2 has demanded the payment of the entire cost to release the mobile hand set to the complainant after repairing and servicing. This clearly demonstrates deficiency of service from the side of OP2, when considering the fact that this happened during the insurance coverage period.

Hence the complaint is allowed.

Ops 123&4 are hereby ordered to be jointly and severally liable for their deficiency of service and dereliction of duty and to return mobile hand set of the complainant after a thorough free repair within one month of the date of receipt of this order failing which price of the mobile set Rs.9000/- should be refunded to the complainant. Also Ops1-4 are also ordered to pay to the complainant compensation of Rs.5000/- towards mental pain and suffering undergone by the latter.

Wage loss of the complainant and travelling expenses of the complainant cannot be allowed due to lack of proofs there for.

This order should be executed within one month from the date of receipt of this order; otherwise interest @9% per annum should also be paid to the complainant on the total amount due from the date of this order till realization.

Pronounced in the open court on 15^th day of December 2016.   

            Sd/-

          Smt. Shiny. P.R

                         President

                            Sd/-

             Smt. Suma. K.P

                           Member

                                                                                     Sd/-

           Sri.V.P.Anantha Narayanan

                          Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1- Cash Receipt bearing no.3972, obtained from the “OXYGEN”, The Digital Shop, Palakkad, for an amount of Rs.9550/- issued by the OP No.1 &4.(Original)

Ext.A2- The packet of “apps daily” mobile protection assurance pack+mini for 1year bearing serial NO.DAP(,) 4609788, for 1year.(insured with OP No.3) (Original)

Ext.A3 – Brochure-“apps daily” mobile protection assurance pack+mini for 1 year bearing serial no. DAP(M)4609788, for 1year.( insured with OP NO.3)(Original)

Ext.A4- Activator Card bearing serial no.DAP(M)4609788 and Activation secret code: 1a66c4URND.(Original)

Ext.A5- Goods Inward note bearing no.1249,dated 11/01/2016( Original)

Ext.A6-Temp. Work order receipt no.3303, Blue point (Original)

Exhibits marked on the side of opposite party

NIL

Witness marked on the side of complainant

NIL

Witness examined on the side of opposite party

NIL

Cost Allowed

Rs.5000/-