DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION FATEHABAD.
Complaint No.186 of 2018.
Date of Instt.:09.07.2018.
Date of Decision: 09.03.2023.
Rakesh Kumar son of Shri Ravi Kumar resident of village Badopal Tehsil & District Fatehabad.
...Complainant
Versus
1.The Gadzet Zone shop, Behind Anaj Mandi, Near Vishal Mega Mart, Fatehabad Tehsil & District Fatehabad through its Proprietor.
2.1 Qor Global Service India Pvt.Ltd. Ground Floor, Suncity Mall, Delhi Road, Hisar Tehsil & District Fatehabad.
3.YMS Mobile Insurance Company Limited (Apps.you need), second Floor, Block-A, Korantham Tower, Sector-62, Gautam Budh Nagar, Noida UP Pind Code 201301.(GIVEN UP VOD 04.01.2019)
4.New India Assurance Company Limited, Above Arrorvansh Dharmshala Road, Fatehabad Tehsil & District Fatehabad.
..Opposite Parties.
CORAM: Sh.Rajbir Singh, President. Sh. K.S.Nirania, Member Smt.Harisha Mehta, Member
Complaint U/S 12 of Consumer Protection Act, 1986
Present: Sh.Sanjeev Kumar Rang, Advocate for complainant. Op Nos.1 & 2 exparte vide order dated 16.08.2018 OP No.3 given up vide order dated 04.01.2019. Sh.V.K.Mehta, Advocate for Op No.4.
ORDER
SMT.HARISHA MEHTA, MEMBER
1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (in short Act) against the opposite parties (in short Ops) with the averments that he had purchased a mobile Apple I Phone 7 Plus bearing IMEI No.3591600 70271191 for a sum of Rs.75,500/- from opposite party no.1 vide Invoice No.1148 dated 29.11.2016; that the product in question was insured with OP Nos.3 & 4 vide policy No.95000046161100000001 dated 29.11.2016 for a period of one year through Op No.1; that after one month the mobile in question fell down and got damaged; that the complainant intimated about the incident to the Op No.1 and also contacted the insurer/Op No.3 which accepted the claim of the complainant on 22.01.2017 vide claim number SD16270116034; that on 22.02.2017, the complainant again contacted Op no.3 through mail which gave assurance to the complainant that the mobile in question would be repaired and delivered soon by 23rd; that Op No.3 delivered the handset to the complainant without getting the repair work done therefore, the complainant again lodged a complaint with Op No.3 bearing complaint No.CN547601241; that the Ops No.3 & 4 did not give satisfactory reply and further refused to do the needful. The act and conduct of the Ops is clearly amounts to deficiency in service and unfair trade practice on their part. Hence, this complaint. In evidence, the complainant has tendered affidavit Annexure CW1/A and documents Annexure C1 to Annexure C6.
2. On notice, Op No.1 did not appear before this Commission despite service whereas Op no.2 failed to appear before this Commission after completion of mandatory period of 30 days, despite the fact that process was issued through RC, therefore, both Ops No.1 & 2 were proceeded against exaprte vide order dated 16.08.2018. Learned counsel for the complainant gave up Op No.3 being unnecessary vide separate statement dated 04.01.2019.
3. Op No.4 appeared and filed its written statement wherein several preliminary objections such as cause of action, maintainability, estoppal and complaint is false and frivolous etc. have been taken. It has been further submitted that neither any claim has been reported nor any intimation regarding the loss, as alleged, has been given to the answering Op. There is no deficiency in service and unfair trade practice on the part of answering Op. In the end, prayer for dismissal of the complaint has been made. Op No.4 in evidence has tendered affidavit of Sh.K.S.Chaudhari DM, as Annexure RW1 and documents Annexure R1 to Annexure R3.
4. We have heard oral final arguments from both sides. In our considered opinion, the same were almost repetitions of averments of pleadings of both sides on record.
5. We have perused the case file minutely in view of the rival submissions from both sides.
6. Fact regarding purchasing of hand set from OP No.1 (Annexure C3) duly insured by OP Nos.3 & 4 is not disputed. The complainant has come with the plea that the mobile phone got broken during the subsistence of insurance period, which was valid for one year i.e. but the Ops did not indemnify the loss suffered by him. It is also established on the case file that the mobile was received at service centre on 02.02.2017 and was repaired on 20.04.2017 as evident through Annexure C4 and further it was delivered to the complainant on 24.04.2017 vide delivery challan Annexure C6. In this very document it has also been mentioned that the mobile in question does not fall under the warranty services.
7. As per Annexure C3, the handset was purchased on 29.11.2016 and it got broken and regarding this claim was lodged on 19.01.2017. Learned counsel for the complainant has argued that the Ops on one hand has mentioned that the phone in question does not fall under the warranty service (Annexure C6) and on the other hand it has been mentioned in Annexure C4 that the mobile in question has been repaired. The plea taken by the Op No.4 that neither any claim has been lodged with it with regard to loss of mobile nor any intimation qua this has been given to the insurance company is not tenable in view of document Annexure C2 i.e. discharge voucher and this document has never been disputed by the Op no.4 in whole the proceedings of this case.
8. Before proceeding further, it is desirable to mention here that insurance is a contract, represented by a policy, in which an individual or entity receives financial protection or reimbursement against losses of the insured articles/ property/vehicle/ health etc. from an insurance company. The grievance of the complainant is that the mobile phone was not repaired and in support this contention learned counsel for the complainant has drawn the attention of this Commission towards various corresponding which were taken place between the complainant and Ops/insurer. It appears that the insurance company is trying to avoid the genuine claim of the complainant due to the reasons best known to it. It is worthwhile to mention here that the mandate of the Act is to protect the consumers from the hands of service providers and in this case, it appears that the insurance company, being the service provider, is not only violating the provisions of Act but also violating its own policy. Hence, the act of the OP No.4 in not indemnifying the claim of the complainant is not justified and it amounts to deficiency in service on its part. In our considered opinion, Ops No.1 has no role to play in this case; it is the insurer, which is to indemnify the loss of the damaged mobile. Hence, the claim of the complainant against Op No.1 is not found justified and hence not allowed. Though the complainant has placed on file discharge voucher/settlement receipt (Annexure C2) but on this very document nothing is mentioned that as to what kind of settlement was taken place amongst the parties.
9. Keeping in view the above facts and circumstances, present complaint is hereby allowed against Ops No.2 & 4 only with a direction to the Op No.2 to repair the handset in question without charging anything from the complainant. However, Op No. 4 is directed to bear the repairing cost of the handset, in all manners, in question being insurer. The complainant is further directed to deposit the handset with the Op No.2/service centre within a period of 30 days and thereafter, the Op no.2 would repair the same within 15 days from the date of receiving of the handset from the complainant. We further allow Rs.10,000/- (Rs.Ten Thousand) in lump sum, towards mental harassment and agony suffered by the complainant and also towards litigation expenses and this amount also to be paid by Op No.4. Copy of this order be supplied to the parties concerned, free of cost, as per rules, and thereafter, the case file be consigned to record room, as per rules, after necessary compliance. This order be also uploaded forthwith on website of this Commission, as per rules, for perusal of parties herein.
Announced in open Commission. Dated:09.03.2023
(K.S.Nirania) (Harisha Mehta) (Rajbir Singh) Member Member President
