ORDER

08.02.2024

Sh. Sanjay Kumar, President

1. In brief facts of the present case are that on 26.07.2016, the complainant purchased a dual sim mobile handset, make and model “Gionee S6 silver” having one of the IMEI No.869327020400609 and 869327021400608 at the price of Rs.20000/- with VAT @12.5% and buy a insurance policy of OP1, through OP2 i.e “Gaurav Telecom.
2. It is stated that OP2 advised to complainant that can take a insurance policy and policy covered to all physical damage/all risk cover. It is further stated that complainant took an insurance policy on same time of OP2 i.e “Syska Gadget Secure” through OP1. It is stated that complainant paid insurance charge according to OP1 and OP2. OP1 provided an insurance card of Syska Gadget Secure to complainant. The serial no. of given on the card is “SGI1799-7768363634” with barcode is 77683634.
3. It is stated that on 17.04.2017 the complainant was going to market and he was talking on the mobile phone suddenly handset fell down on the ground due to push by mob. It is further stated that time handsets screen broken. It is stated that complainant approached OP2 regarding his complaint. OP2 provided a claim form that form filled by complainant and attached all required document which was asked by in the form and submitted to OP1 on the dated 17.04.2017. It is further stated that OP2 sent the claim form to OP1 and also complainant called to OP1 and OP1 registered complaint. Complaint no. is 9170417-9003 after that OP1 received said handset through “trackon couriers Pvt. Ltd.” from the complainant residence which was booked by OP1. Complainant have receiving of courier company after some days complainant tracked that handset have been received to OP1.
4. It is stated that complainant waited so many days suddenly OP1 called to complainant said “Sorry to delay on our part”, we are trying to resolve your problem as soon”. That after some days complainant called so many times but they are deliberately to ignore that matter. It is further stated that OP1 did not provide any invoice/receipt only they provided a “Syska Gadget Secure” card which is covered all assurance. It is stated that the aforesaid handset is lying dead being inoperative and is of no use to his whatsoever on account of its inherent weakness, defects and glitches. That the complainant apprehend that OP in connivance deliberately refused to repair continue the said handset as per the warranty applicable, which is not only fraud but also deficiency in service, unfair trade practice and exploitation of gullible customers.
5. It is stated that complainant distraught by the greedy and shocking behavior and attitude of OPs, deficiency in service and unfair trade practice on the part of OPs. That due to the negligent and deficient services rendered by the OPs and the unfair trade practice adopted by it, the complainant has suffered not only monetary loss but also underwent lots of mental agony and tension which can’t be estimated with precision, but the complainant is claiming conservatively only a sum of Rs.50,000/- on the account.
6. It is stated that complainant is seeking direction to OPs to pay Rs.20000/- (Twenty Thousand only) being the cost of the said mobile handset, to pay Rs.25,000/- (Twenty Five Thousand only) as damages and compensation for causing immense mental agony and Rs.5000/- (Five Thousand only) as the cost of litigation.
7. The OP1 served on 08.12.2017. OP1 neither appeared nor filed WS, therefore, proceeded ex parte on 05.03.2018.
8. OP2 filed WS and taken preliminary objections that present complaint is bad and untenable in the eye of law as the respondent no.2 does not fall under the category  of ‘trader’ as defined U/S 2(q) of the consumer protection act 1986 as the respondent no.2 is not a agent of syska gadget i.e respondent no.1.
9. It is stated that there is no privity of contract between the complainant and respondent no.2 as the respondent no.2 is mere a distributor of mobile phones only. It is further stated that M/S GAURAV TELECOM has sold a mobile phone of Gionee company whose bill has been handed over to Mr. Dharampal. It is stated that complainant has not come before this Hon’ble court with clean hands and guilty of suggestio-falsi and suppressio-varie, hence not entitled for any relief as falsely claimed in present false complaint. It is further stated that even as per the version of the complainant the alleged insurance was sold by the respondent no.2 at the time of selling the mobile phone, whereas the bill i.e annexure 1 does show any entry of the syska insurance package and only shows the relevant entry of buying the Gionee mobile phone only.
10. It is stated that complainant has purchased Syska Gadget secure direct from the agent of company that’s why he has no proof of purchase of any kind of insurance from Gaurav Telecom. By purchasing of this insurance complainant agreed all the terms and conditions of syska gadget secure. OP1 (SYSKA GADGET SECURE) is only liable to provide services to complainant there is no role of Gaurav Telecom. It is further stated that there is no responsibility of Gaurav Telecom i.e OP2 but as a good relations with Mr. Dharampal help him to take claim from Syska gadget secure because Mr. Dharampal is not well educated. It is stated that this Hon’ble Forum has no jurisdiction to entertain and try the present complaint as the present complaint discloses the civil dispute which needs examination of witnesses hence only the civil court is appropriate authority to try this complaint/case.
11. On merit all the allegations made in the complaint are denied by OP2 and reiterated all the contents of preliminary objections.
12. Complainant filed rejoinder and denied all the allegations made in the WS and reiterated contents of complaint.
13. Complainant filed evidence by way of his affidavit and reiterated contents of the complaint.
14. OP1 and OP2 failed to file evidence.
15. Complainant filed written arguments and OP1 and OP2 failed to file written arguments.
16. We have heard complainant in person and Sh. Surender Pal Singh counsel for OP-1. None appeared on behalf of OP-2 although written statement filed.
17. The complainant case is that he purchased mobile handset ‘GioneeS6 Silver’ on 26.07.2016 for a Rs.20,000/- with vat @ 12.5%. The complainant filed on record invoice issued by Gaurav Telecom OP-2 for purchase of mobile phone. The complainant as per advice of OP-2 got insured the mobile phone against all physical damage and took an insurance policy of OP-1 Syska Gadget Secure and paid insurance charges.
18. A photocopy of policy cover filed on record by complainant. The mobile phone on 17.04.2017 fell down from the complainant in a market due to rush. The complainant lodged insurance claim the photocopy of mobile insurance claim form filed on record dated 17.04.2017. It was also sent to OP-1 and as per tracking report received on 20.05.2017. OP-1 failed to file written statement and no defense put forward by the OP-1. OP-2 contested the present case and taken the defense that OP-2 is a distributor of mobile phone only. It is admitted that complainant had purchased ‘GioneeS6 Silver’ from Gaurav Telecom. OP-2 disputed the fact with regard to insurance coverage by OP-1. The complainant by way of evidence proved all the documents with regard to purchase of model mobile phone and getting the insurance card from OP-1 Syska Gadget Secure. The document shown specifically that blanket cover for device purchased by complainant from OP-1 having serial no. SGI1799-7768363634 with bar code no.77683634. the complainant established and proved that OP-1 insured the mobile phone against physical damage. The complainant further established that he had sent the claim but same was not processed by the OP-1. The complainant established that there is deficiency of service on the part of OP-1 for not providing claim of physical damage of mobile phone which was insured.
19. On the basis of above observation and discussion complainant established deficiency of service on the part of OP-1 and his claim for physical damage mobile phone not processed and finalized which also result in mental and physical harassment and sufferance. The OP-2 has only sold the ‘GioneeS6 Silver’and therefore there is no liability or deficiency of service on the part of OP-2.
20. We allow the complaint and direct the OP-1 to pay Rs. 20,000/- to the complainant along with 6% interest from the date of filing of complaint till realization. We further direct OP-1 to pay compensation and litigation expenses of Rs. 5,000/- to complainant.
21. The OP-1 is directed to comply the order within 30 days of the receipt of the order failing which OP-1 will be liable to pay the aforesaid amount along with interest @ 9% P.A from the date of receipt of order till realization. File be consigned to record room.
22. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  08.02.2024.

  SANJAY KUMAR                                                                          RAJESH

       PRESIDENT                                                                               MEMBER