Ld. Advocate(s)

                          For Complainant: Pritha Mondal                                                        

                          For OP/OPs : Joydip Mitra

         Date of filing of the case              :15.07.2022

         Date of Disposal  of the case      :31.07.2024

Final Order / Judgment dtd.31.07.2024

The basic fact of the case of the complainant is that the complainant Chandan Tikadar purchased one Washing Machine of Samsung WF600UOBHWQ/6 kg front loading auto Washing Machine for Rs. 28,500/-  on 16/04/2015 with warranty for 2 years from the OP No. 2. the complainant also purchased insurance policy against the said product from OP No. 1 Bajaj Allainz General Insurance for Rs. 2,936/- for extended warranty for 36 months. During the validity of the said insurance policy the washing machine became defective which was informed to the service centre of Samsung. The employee of Samsung repaired it on 01/06/2018 and charged Rs. 472/-. They replaced one part on 06/06/2018 for Rs. 248.76/- The complainant sent an application to OP No. 1 for reimbursement of expenses on 29/06/2018 but they did not refund it. Again the machine became defective and after information the authorized service center repair it on 29/05/2019 for a charge of Rs. 7,350/-. The complainant submitted a bill to OP No. 1 on 03/06/2019 along with a letter but OP No. 1 did not repair although OP No. 2 Great Eastern Appliance Pvt. Ltd. assured for reimbursement of or cost during extended   warranty but the OP No. 1 ignored it. So both the OPs have done unfair trade practice with the complainant. Therefore the present case is filed. The cause of action arose on 27/06/2015 and continued till the filing of the present case. The complainant prayed for an award for Rs. 8,070.76 /- towards service center charge Rs. 2,936/- towards premium for the said policy Rs. 25,000/- towards compensation for harassment mental pain and agony.

The OP contested the case by filing W/V. OP No. 2 preferred not to contest the case. So it is heard ex-parte against OP No. 2. The OP No. 1 challenged the case by filing W/V on the ground that the present case is not maintainable in law. The positive defense case of OP No. 1 in brief is that the OP Bajaj Allainz General Insurance issued an insurance policy to Chandan Tikadar for the period 16/04/2016 to 15/04/2019 as per terms and conditions, for specific coverage along with specific condition. Till date no claim intimation was given to the OP No. 1 or no claim was lodged to the OP No.1. The OP No. 1 never got the chance to assess the claim or genuineness of the  damage / loss of the complainant. The complainant is not entitled to get the relief claimed. The OP No. 1 has no relation with the OP No.2. The Op No.1 claimed  that the case is liable to be dismissed with cost.

On the basis of the respective case of the parties the commission considers to ascertain the following points.

Points for Determination

Point No.1.

Whether the  case is maintainable  in its present form and prayer.

Point No.2.

Whether the complainant  is entitled to get the relief as prayed for.

Point No.3.

          To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

1.The OP challenge the case as not maintainable. Although the case is heard ex-parte against OP No.2, yet OP No. 1 contested the case. The OP No. 1 did not plead as to why the case is not maintainable. But Ld. Defense Counsel argued that the OP No. 1 has no branch in Nadia jurisdiction. They appeared suo-moto, so the case is bad for defect of parties. The OP No. 1 in their pleading never stated that they had no office at Nadia. In fact notice was served upon OP No. 1. The OP No. 1 is contesting to defend. Then it is immaterial as to whether the OP No.1 appeared on the basis of the notice of the commission or suo-moto. Therefore the case is not bad for defect parties.

Accordingly point No. 1 is answered in favour of the complainant.

Point No.2&3.

Both the points are taken up together for brevity and convenience and discussion. There is no denial to the fact that the complainant purchased the disputed Samsung washing machine on 16/04/2015 on Rs. 28,500/- against warranty of 2 years.

The complainant in order to substantiate the case proved the following documents.

Annexure:-1

Tax invoice of the washing machine in the name of the complainant for Rs. 28,500/- from OP No. 2 company.

Annexure:-2

Is the money receipt for Rs. 2,936/- issued by OP No. 2 dt. 27/06/2015.

Annexure:-3

Is the extended warranty proposal issued by Bajaj Allainz for 2 years for the said washing machine.

Annexure:-4

Is the extended warranty policy documents.

Annexure:-5

Service charge for Rs. 472/- dt. 01/06/2018 issued by Samsung.

Annexure:-6

Is the cash receipt dt. 06/06/2018 for Rs. 248.76 issued by Samsung.

Annexure:-7

Letter by the complainant to the Bajaj Finsery dt. 28/06/2018.

Annexure:-8

Cash receipt for Rs. 7,350/- dt. 29/05/2019 issued by Samsung.

Annexure:-9

Is the consignment received.

Annexure:-9/1

Is letter by complainant to Bajaj Ranaghat Branch.

Annexure:-10

Is the letter of CA & FBP dt. 15/07/2019 to Bajaj finsery.

It is the admitted fact that the OP No. 1 issued the insurance policy to the complainant for the period 16/04/2016 to 15/04/2019.

The date of purchase of the product is 16/04/2015 wherein the initial warranty was for 2 years. The complainant there after purchased the extended warranty of 36 months. As per annexure-3 the extended warranty is 36 months. The machine is claimed to have defective on 29/06/2018. So it is well within the warranty period that the OP did not deny the said contention of the complainant. But put him to strict proof.

The complainant duly proved by both evidence in affidavit and documentary evidence that the machine became defective within the warranty period, including the extended warranty. The OP admitted about the said policy.

During cross examination the OP No. 1 admitted the said insurance policy.

The OP was further asked that the complainant gave application to reimbursement the claim on 29/06/2018 and 03/06/2019.

The OP stated that they did not receive such communication. The complainant duly proved both the letter as annexure- 7 and 9/1.

Ld. Defence Counsel argued that the last expenses incurred after the expiry of warranty period.

After the assessing the entire evidence it is evident that the OP did not allow any of the claim of the complainant which occurred during the validity of the warranty period. So when the genuine claim is not reimbursed then the same  tantamounts to deficiency in service.

At the fag end of the case the OP filed the extended warranty document wherein submitted that the minimum claim should be more than Rs. 500/-.

The complainant could not examine and cross examine the said document since it was not filed in course of trail.

The OP also filed one case law reported in 2024 6 SRC-355 wherein it was held that terms and condition of insurance should be followed. Repudiation of claim is justified.

The case law does not apply here because the OP No.1 has not repudiated the claim after proper investigation. There is no such document. So the case law does not match with the facts of the case.

On the contrary the OP No. 1 has not paid the genuine claim within the warranty period. So it has caused harassment to the complainant which tantamount to unfair trade practice.

Accordingly Point No. 2& 3 are answered in affirmative of behalf of the complainant.    

Consequently, complaint case succeeds on contest against OP No.1 and ex-parte against OP No.2 with cost.

Hence,

                              It is

Ordered

that the complaint case no.CC/80/2022 be and the same is allowed on contest against OP No.1 and ex-parte against OP No.2 with cost of Rs.1,000/-(Rupees one thousand). The complainant do get an award for a sum of Rs.8070.76 (Rupees eight thousand seventy and seventy six paisa) towards  service charge  and cost of parts and  Rs.2936/- (Rupees two thousand nine hundred thirty six) towards premium  of insurance  policy, Rs.10,000/- (Rupees ten thousand) towards compensation  for harassment, mental pain and agony and Rs.1,000/- (Rupees one thousand) towards litigation cost. The Ops are jointly and severally  liable to pay the award money. Both the opposite parties  are jointly and severally  directed to  pay Rs.12,006.76 (Rupees twelve thousand six and seventy six paisa) to the complainant  within 30 days  from the date of passing the final order failing which the entire award money shall carry an interest @8% p.a from the date of passing the final order till the date of its realisation.

All Interim Applications  (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.                   

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                                  ................ ..........................................

                                                                                                                          PRESIDENT

                                                                                               (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

   ........................................                                              

          MEMBER                                                                   

(SHRI NIROD  BARAN   ROY  CHOWDHURY)