Delhi

East Delhi

CC/9/2015

SHAHDEV - Complainant(s)

Versus

Spice Retail Ltd - Opp.Party(s)

31 Jan 2019

ORDER

                         CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

                  CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                  

                                                                                                

                                                                                                  Consumer Complaint no.          09 / 2015

                                                                                                  Date of Institution                  20/01/2015

                                                                                                  Order Reserved on                 31/01/2019

                                                                                                  Date of Order                          01/02/2019  In matter of

Mr. Sahdev Sain         

S/o- Neel Ratan Sain  

R/o –225, T- Huts, Nr DESU Office,   

Radhu Palace, Delhi 110092……………...………..…………….Complainant

                                                                  

                                                                     Vs

1-Spice Retail Ltd.

D-10, Vikas Marg, Delhi 110092

 

2- The Manager,

The New India Assurance Co. Ltd.

87, MG Road, Fort, Mumbai 400001.…...…………..……….Opponents

 

Complainant’ Advocate                     Mr Subhash Chandra Verma

Opponent 1                                         Ms. Urmila - AR                       

Opponent 2-Advocate                       Mukesh Kumar Sharma

                                               

Quorum          Sh Sukhdev Singh      President

                         Dr P N Tiwari              Member

                         Mrs Harpreet Kaur    Member

 

Order by Dr P N Tiwari  Member 

Brief Facts of the case  -

Complainant purchased Sony Xperia-MDS-C2004 white coloured mobile having IMEI 358098053554707 on 15/03/2014 for a sum of Rs 13000/- vide invoice no. cg31547 (Ex CW1/1) and the mobile was insured by Spice Hotspot Procare receipt policy no. HScg31044 after paying Rs 499/- giving full cover to his product/mobile (Ex CW1/1A & B) in the name of M/s Jyoti Automac System. OP1 also gave insurance policy cover note of OP2 (Ex CW1/1C).

The hand set was snatched by some unknown persons on 16/12/2014 so FIR was done on the same day (Ex CW1/2) under the name of complainant/Mr Sahdev Sain. It was stated that complainant immediately informed Head Office at Bangaluru about the incidence through courier (Ex CW1/3&3A). Despite of contacting OP2, no reply was ever received, so filed this complaint and claimed a sum of Rs 13000/-as a cost of his handset and Rs 40,000/-compensation for harassment and mental agony with litigation charges Rs 10,000/-.

OP 1 submitted written statement and denied all allegations of complainant. It was stated that complainant purchased handset on 15/03/2014 and had no defect or any defective product was sold. As the said mobile was snatched by some unknown persons on 16/12/2014 and police case was registered. As his mobile was insured, so OP1 being a seller, had no deficiency in services or any unfair trade practice. Hence it was prayed to exonerate from any liability.

OP2/The New India Assurance Co. (NIAC) submitted written reply and denied all the allegations put by complainant. It was submitted that OP2 had no privity of contract as no policy was ever issued in the name of complainant or had received any premium amount through complainant or OP1. The annexure submitted by complainant Ex CW1/3 does not show stamp and signatures of authorised officials of OP2. More so, the annexure CW1/3 does not shows complainant’s name and address whereas policy always issued in individual name with tenure and premium amount. So, OP2 totally denied accepting that mobile was ever insured by them.  Hence complaint may be dismissed.  

Complainant in his rejoinder dated 18/09/2015 put allegations of this Forum for prolonging and elongate his case and suggested to stuck the defence of OP1. He denied all replies submitted by OP1. It was stated that OP1 had charges excessive amount of Rs 151/- for getting insurance done from OP2 and cover note of OP2 showed the amount of insurance Rs 149/- was charged and policy no. 67170046132400000012 was issued from 15/03/2015 against invoice no CGB 1547 and theft and burglary policy was issued whereas complainant had paid Rs 300/-against 149/-, thus OP1 did unfair trade practice, but this fact was neither replied by OP1 nor accepted. As the contract had established between complainant and OP2, establishes deficiency in services. (Ref. Smt. Ramala Roy vs Ravindra Nath Sen-1994(1) CPR66).

In ref to written statement of OP2, complainant submitted rejoinder and denied their replies. Complainant had submitted two evidences as bank account details under M/s Jyoti Automac System, where an amount of Rs 300/-were paid to OP1 (Ex CW1/4) and insurance receipt of “Spice Hotspot ProCare (powered by GadgetCorps)” (Ex CW1/5) was issued vide no 8852 having protection plan terms and conditions. It was stated that insurance was for theft and any other loss which was also evident from FIR and proper intimation to OP1 and OP2. So, OP1 had made false averments in their written statement and this proves deficiency in services of OP1 for getting proper insurance cover of his mobile of Rs 13,000/-.  

Complainant filed his evidences through his own affidavit where he relied on invoice of OP1 (Ex CW1/1) and insurance cover from Spice Hotspot Procare receipt (Ex CW1/5) which showed as “ Product Covered” and supported by OP2 cover note and copy of FIR (Ex CW1/2). He also relied on certain emails done between OP1 and Op2. Hence, prayed for passing his claim.  

OP2 filed their evidence through affidavit of Md Kavita Jain, Accounts Officer with OP2 and stated in her affidavit that the said handset was neither insured nor had any contract with complainant. It was denied that OP1 had insured handset through OP2 on the date of purchase ie 15/03/2014. OP2 stated that their WS was submitted and contained all detailed explanation.     There was no evidence ever produced by complainant which could prove that the mobile was ever insured by OP2 through OP1, so OP2 were neither responsible for passing any claim nor had any deficiency in their service, hence this complaint may be dismissed.   

Arguments were heard from counsels of OPs and AR of complainant as complainant did not put his appearance on the date of arguments. After perusal of materials on record, order was reserved.  

We have gone through all the facts and evidences on record. It was observed that complainant has not filed required documents pertaining to claim from OP2. There was no evidence on record from where it could be established deficiency of OP2. Complainant had not mentioned correct and true facts in his complaint about the privity of contract between OP2 and himself. More so, the hand set was purchased under the name of company and insurance amount was taken by Spice Hotspot ProCare where as complainant has nowhere mentioned that he was a ‘consumer’ as per the definition of the Act.

 

We have also seen that there was no evidence from complainant that could prove deficiency of OP2. Thus OP2 is exempted from any liability under the claim. So this complaint has no merits and that being so, complaint deserves to be dismissed so dismissed without any direction or cost.

The copy of this order be sent to the parties as per the Section 18(6) of the Consumer Protection Regulation, 2005 ( in short CPR)  and file be consigned to the Record Room under Section 20(1) of CPR.

 

(Dr) P N Tiwari –Member                                                                      Mrs Harpreet Kaur – Member

                                                               Sukhdev Singh  President