BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 217 of 2017
Date of Institution : 31.8.2017
Date of Decision : 20.12.2017
Rajat Midha son of Shri Rakesh Kumar resident of Gali No.8, Kirti Nagar, Sirsa and now resident of H.No.650, Bhagat Singh Park Street, Shiv Chowk, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
- S.S. Communications, Geeta Bhawan Street, Sirsa through its proprietor.
- B2X Samsung Rohtak Haryana, Jain Mension, HUDA Complex, in front of City Central Mall, (Nr Daikin AC Showroom, Rohtak, Haryana)
- Samsung Office, 22-24th Floors, Horizons-2, Golf Course Road, Sector 43, Gurgaon.
- Syska, 4th Floor, Sapphira Plaza, Plot no.80, S.No.232, New Airport, Near Symbiosis College, Sakare Nagar, Vimal Nagar, Pune, Maharashtra.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…… PRESIDENT.
SHRI MOHINDER PAUL RATHEE……MEMBER.
Present: Sh. Dheeraj Bansal, Advocate for complainant.
Sh. A.S. Kalra, Advocate for opposite parties no.2 and 3.
Opposite parties no.1 and 4 exparte.
ORDER
In brief, the case of complainant is that on 16.7.2016 the complainant had purchased a mobile model Samsung SM A510 from op no.1 vide bill no.7243 dated 16.7.2016 and op no.1 had charged a sum of Rs.21500/- from the complainant towards the price of the mobile. On the same day, the complainant, on the recommendation of op no.1, got the said mobile insured from op no.4 and all the risks including the incidental damages were covered under the insurance policy. The complainant had paid requisite amount in this regard to op no.4 through op no.1 at Sirsa. It is further averred that after some time of purchase of the mobile in question, the complainant met with an incident and fell down from the stairs of his house. At that time the mobile was in the hand of the complainant and on account of his sudden fall from the stairs, the complainant received injuries on his person and the mobile of the complainant was also damaged in this incident. It is further averred that because the mobile of the complainant got damaged in the incident, therefore, the complainant immediately informed op no.4 regarding the damages caused to the mobile in the incident through internet and requested to indemnify his claim. The complainant was asked that official of op no.4 will visit the complainant and will take over the possession of the mobile from him. The complainant was further asked that after completing the necessary formalities in this regard the possession of either the new mobile or the repaired one would be handed over to the complainant. Thereafter, on 28.11.2016 one official of op no.4 namely Anil Kumar visited the complainant and taken over the possession of the mobile from him and had issued a pickup receipt no.1017910077906 dated 28.11.2016 to the complainant and assured that as soon as possible the services would be provided to the complainant. At that time Deepak Chhabra son of Shri Jeet Lal resident of Noharia Bazaar Sirsa was with the complainant. That thereafter, the complainant kept on contacting op no.2 in this regard time and again but op no.2 kept on avoiding the requests of the complainant on one false pretext or the other. Not only this, the complainant personally visited the office of op no.2 at Rohtak in the month of May, 2017 alongwith Akash Sharma son of Shri Kedar Nath Sharma but no positive response was received by him. About 8 months have been passed but the mobile in question has not been received yet by the complainant and the same is still in possession of op no.2. The validity of the insurance policy was for a period of one year which stands expired but at the time of taking over the possession of the mobile, the same was in existence. Such act and conduct on the part of the ops clearly amounts to deficiency in service and unfair trade practice on account of which the complainant has suffered unnecessary harassment, humiliation, hardship, disappointment, mental tension etc for which he is legally entitled to be compensated. It is further averred that when all the efforts made by the complainant were proved useless, therefore, on 27.07.2017 the complainant finding no other alternate got issued a registered legal notice to the ops calling upon the ops to hand over the possession of the new mobile to the complainant and to pay a sum of Rs.50,000/- on account of unnecessary harassment and humiliation caused to the complainant within a period of 15 days from the date of receipt of this notice but to no effect. Hence, this complaint
2. On notice, opposite parties No.2 and 3 appeared and filed reply taking certain preliminary objections regarding jurisdction; suppression of material facts and cause of action etc. It is submitted that the complainant mis-joined the answering ops in the present complaint and the complainant has no cause of action against the answering ops as the case of the complainant is only against the insurance company as the unit of the complainant was damaged due to mishandling on the part of complainant as the complainant himself stated that the mobile of complainant got damaged accidently and it is the insurance company who insured the unit of the complainant. The complainant approached the authorized service center on 6.5.2017 i.e. after around nine months from the date of purchase for the very first time. As the complainant has admitted that the said handset has been damaged on account of his negligence/ mishandling, consequently warranty in respect of the said handset has become void. It is further submitted that the authorized service center shared an estimate regarding the repairs of the said handset which was refused by the insurance company. The company is not liable for any acts committed by the insurance company or the dealer. It is further submitted that the unit was handed over by complainant to op no.4 i.e. insurer of the unit in question and answering ops are not responsible for any act of either op no.4 or op no.1. There is no privity of contract between the answering op and the insurance company and because of an agreement between the complainant and insurance company, only insurance company is responsible. It is further submitted that the answering ops were and are still ready to provide services as per warranty policy, so there is no deficiency in service on the part of answering ops.
3. Opposite parties no.1 and 4 failed to appear despite notices and therefore, ops no.1 and 4 were proceeded against exparte.
4. The complainant has tendered his affidavit Ex.CW1/A, Ex.C1 copy of bill of mobile; Ex. C2 copy of job card, Ex.C3 copy of pickup receipt; Ex.C4 copy of legal notice and postal receipts Ex.C5 to Ex.C8 and acknowledgments Ex.C9 and Ex.C10. On the other hand, ops no.2 and 3 produced affidavit of Anindya Bose Ex.R1 and copy of warranty card Ex.R2.
4. We have heard learned counsel for complainant as well as learned counsel for ops no.2 and 3 and have gone through the case file carefully.
5. The perusal of the record reveals that complainant in order to prove his allegations in the complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in the complaint. He has specifically deposed that he purchased mobile model Samsung SM A510 from op no.1 vide bill no.7243 dated 16.7.2016 for a sum of Rs.21500/-. He has further deposed that on the same day he got the above said mobile insured from op no.4 through op no.1 and all the risks and damages were covered in the policy. The complainant had paid requisite amount in this regard to op no.4 through op no.1 at his shop. He has further deposed that he met with an incident and fell down from the stairs of his house as a result of which the mobile which was in his hand was also damaged. He informed op no.4 and requested to indemnify his claim as risks and damages are covered in the policy. He was asked that official of op no.4 will visit the complainant and will take over the possession of the mobile from him. On 28.11.2016, one official of op no.4 namely Anil Kumar visited him and taken over the possession of the mobile from him and he issued a pickup receipt No.1017910077906 dated 28.11.2016 to the complainant at Sirsa and assured that as soon as possible services will be provided to the complainant. He has further deposed that till date he has not received mobile and same is still in possession of op no.2 to whom it was handed over by official of op no.4 for carrying out the necessary repairs. The complainant has further placed on record copy of bill of mobile as Ex.C1, copy of job card as ExC2, copy of pickup receipt as Ex.C3, copy of legal notice as Ex.C4, postal receipts as Ex.C5 to Ex.C8 and acknowledgments Ex.C9 and Ex.C10. On the other hand, ops no.2 and 3 have furnished affidavit of Anindya Bose as Ex.R1 in which he has deposed in terms of their plea in the written statement and they have also tendered copy of warranty card as Ex.R2. Since the ops no.1 and 4 did not put in their appearances and were proceeded against exparte, as such the evidence led by the complainant goes as unchallenged and unrebutted against ops no.1 and 4.
6. Though, ops no.2 and 3 have taken a plea that the claim of the complainant is only maintainable against ops no.1 and 4 as amount of premium was received by op no.1 on behalf of op no.4 who issued the insurance coverage to the mobile of the complainant and ops no.2 and 3 have nothing to do with the claim of complainant but perusal of the record reveals that ops no.2 and 3 have not led any cogent and convincing evidence in order to prove their defence plea since it is proved fact on record that mobile is lying with op no.2 who is running service centre of op no.3 and has not handed over the same to the complainant till date. Since the mobile of the complainant was duly insured with op no.4 and the official of op no.4 took possession of mobile from the complainant after the accidental damage and handed over the same to op no.2 service center and op no.2 has no right to retain the mobile of the complainant and he is only entitled to claim charges from the insurance company and not from the complainant which clearly amounts to deficiency in service on the part of ops.
7. In view of the above, we allow the present complaint and direct the opposite parties to hand over the mobile set to the complainant in proper working condition within a period of 15 days from the date of receipt of copy of this order and if the same is not available then to replace the same with new one of same make and model and in case of non availability to refund the price of the mobile in question i.e. Rs.21500/- to the complainant within further period of 15 days. We also direct the ops to pay a sum of Rs.2000/- as composite compensation and litigation expenses to the complainant. All the ops are jointly and severally liable to comply with this order. A copy of order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. President,
Dated:20.12.2017. Member District Consumer Disputes
Redressal Forum, Sirsa.
