CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

                                            Case No.145/2017

Sh. SUNIL KUMAR

S/O SHRI ANAND LAL

R/O H. NO. 147, GROUND FLOOR STREET NO.2,

GOVIND PURI, KALKAJI

NEW DELHI…..COMPLAINANT     

Vs.

1.  M/S SPICE HOTSPOT

SHOP NO. E-7, MAIN MARKET,

KALKAJI, NEW DELHI-110019…..RESPONDENT NO.1/OP          

2. M/S HARIKISHAN GALLERY & SERVICE

UG-26, SUNEJA TOWER-2

JANAKPURI, NEW DELHI-110058…..RESPONDENT NO.2/OP

3. M/S GIZMOHELP

KOCHAR INFOTECH LTD.

76B, UDYOG VIHAR, PHASE/IV…..RESPONDENT NO.3/OP

4. M/S. HTC

G-4, BPTP, PARK EVENUE,

SECTOR-30, GURGAON-122002…..RESPONDENT NO.4/OP

5. THE NEW INDIA ASSURANCE COMPANY

BLOCK-B, 2^ND/3^RD FLOOR,

RG CITY CENTRE, LOCAL SHOPPING COMPLEX

LAWRENCE ROAD, DELHI-110035…..RESPONDENT NO.5/OP

ALSO AT

SCOPE MINAR, DISTRICT CENTRE

LAXMI NAGAR,                               ….. /RESPONDENTS                                       

       Date of Institution-13/04/2017.

                   Date of Order-10/03/2022.

  O R D E R

MONIKA SRIVASTAVA– President

          The complainant had purchased the mobile phone from OP1 i.e. Spice Hotspot manufactured and marketed by OP4 i.e. HTC. Harikishan Gallery & Services is OP No.2 and M/s Gizmohelp is OP No. 3. At the time of purchase of mobile, the complainant had purchased the Insurance Policy from OP No.3 which was provided by New India Assurance i.e. OP5.

          The complainant has stated that his phone got damaged and he approached OP2 for getting his phone repaired and also OP3 to claim insurance but none of the OPs paid any heed to the request of the complainant. OP2 denied its liability despite receiving the insurance premium. The receipt of the premium is annexed at pgs 4-6 AS Ex. CW1/1 filed along with the evidence affidavit.

All the OPs were proceeded Ex-parte however, OP5 approached the Hon’ble State Consumer Dispute Redressal Commission for setting aside of the Exparte order however, the appeal was dismissed in default. The order of the Hon’ble State Commission is annexed in the file. The complainant has filed his affidavit by way of evidence and written submissions.

The Commission has gone through all the documents filed on record. It is clear from the documents filed that the complainant met with an accident on 07.02.2017 and that he had insurance provided by OP5 through OP3. The complainant filled the claim form requesting for insurance cover regarding his damaged mobile and OP 3 requested for various documents to be supplied along with it as is evident from the emails exchanged between the complainant and the OP 3, filed as Ex.CW 1/2. Though the complainant has supplied almost all the documents to OP 3 however the Complainant has not provided the OP 3 with the IMEI No. in spite of repeated requests from the side of the OP3 from Feb 8, 2017  to March 22, 2017.  

Section 2(1)1(g) of the Consumer Protection Act, reads as follows:

"deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”

The complainant has filed the present complaint on the ground of deficiency of services against the OPs but the Complainant has not produced any document which establishes deficiency of service on the part of the OP as it is the complainant who has not been able to provide with the requisite documents to the OP 3 to process the claim of the Complainant.

The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following

“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint. The Rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side”

It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP.  This Commission has gone through the pleadings and documents filed by the parties and find that complainant has not been able to discharge its onus.

Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.

(Dr. RAJENDER DHAR)     (RASHMI BANSAL)      (MONIKA A SRIVASTAVA)

        MEMBER                         MEMBER                 PRESIDENT