Delhi

North East

CC/500/2014

Shri Karan - Complainant(s)

Versus

The Manager Micromax - Opp.Party(s)

03 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.500/14

 

In the matter of:

 

	Shri  Karan S/o Shri Dara Singh T-142, Rajpura, Gur Mandi, Near Primary School, Delhi.	Complainant
	Versus
1           2       3	The Manager Micromax Plot No. 21/14, Block-A, Phase-2, Narayna Indl. Area, New Delhi 110028   M/s. Smart Mobile Total Solution C-2/16, Yamua Vihar, Delhi 110053   Dee Mobile Hub 146-D Kamla Nagar, Delhi	Opposite Parties

 

 

	DATE OF INSTITUTION:	05.01.2015
	RESERVED FOR ORDER:	26.04.2018
	DATE OF DECISION:	03.05.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member:-

ORDER

1. Case of the complainant is that he had purchased a Micromax  A-93 Mobile phone IMEI No. 911342360090788 and 91134230090796 manufactured by OP1 from OP3 retail outlet on 28.02.2014 for a sum of Rs. 8,900/- vide invoice bill no. 9742. However, after five months there was a defect in the aforesaid mobile phone for which he contacted OP2 being the Authorized Service Centre of OP1 and his complaint was entertained by OP2 and he was asked by OP2 to leave the above said mobile phone with them for making it usable and removing the defect. The above said mobile phone was received by OP2 vide slip no. 9844 dated 31.07.2014 from the complainant for removing the defect with remarks “water damage / dead”. It has been stated further by complainant that thereafter he had visited OP2 time and again for taking back aforesaid mobile but he was told by OP2 that since there was a serious defect, it will take some more time to remove the defect. The complainant has further stated that two months and fifteen days passed but the OP2 didn’t return the aforesaid mobile to complainant and all the time he was given false and frivolous excuses. Therefore, the complainant had got served legal dated 15.10.2014 upon the OP1 and OP2 through Regd. AD which were duly served upon them but the OP1 and OP2 neither replied nor complied with the legal notice. The complainant has further stated that due to non availability of mobile he is suffering inconvenience hardship, mental agony and tension and there is deficiency of service on part of OPs for which the OPs are liable to pay the damages to the tune of Rs. 20,000/- to the complainant. Further, the complainant has alleged deficiency in service on the part of OPs as they had sold a defective mobile phone to the complainant and therefore vide the present complaint the complainant has prayed for, directions to OPs to provide him with a new mobile phone or to refund the amount of Rs. 8,900/- alongwith interest @18% p.a. from the date of purchase the mobile phone till the date of payment. Further, the complainant has prayed for directions to OPs to pay Rs. 20,000/- for suffering and Rs. 7,000/- as litigation charges to the complainant against the OPs.

The complainant has annexed a copy of retail invoice bearing no. 9742 dated 28.02.2014 for an amount of Rs. 8,900/- towards the purchase of Micromax A 93 mobile set from OP3 alongwith fault completion report slip no. 9844 dated 31.07.2014 issued by OP2. A copy of legal notice dated 15.10.2014 issued to OP1 and OP2 by the advocate of complainant has also been attached alongwith postal receipt and its track report.

2. Notice u/s 13 of this Forum issued to OPs on 06.01.15 for appearance on 09.02.15. However, OP3 didn’t appear and as such was proceeded against ex parte vide order dated 11.03.2015 on which date OP1 filed an application under order 1 rule 10 CPC for deletion of OP1 from the array of parties on grounds that complainant has procured two year extended warranty from OP2 with respect to the mobile and not from OP1 and warranty card was also issued by OP2 for which amount was collected by OP2 from the complainant and OP1 had fulfilled its part of one year warranty and had no role to play with extended warranty or any deeds of OP2 who sold the extended warranty to the complainant for its own business benefit and therefore prayed for deletion of its name from the array of parties.    OP2 could not be served and as such was deleted from the array of parties vide order dated 29.02.2016.
3. Reply to the order 1 rule 10 CPC application moved by OP1 was filed by the complainant on 13.04.2015 opposing the prayer for deletion of OP1 on grounds that it being the manufacturing company of the product/ mobile purchased is necessary party and OP2 was the authorized dealer of OP1 which gave the complainant two years warranty for the mobile of OP1 and therefore OP1 and OP2 had a Principal-Agent Relationship and both were liable for deficiency of service and OP1 has not filed any document to prove that OP2 shall be solely responsible for warranty.  In view of the above, the Forum, vide order dated 29.02.2016 directed that the application has been filed by OP1 instead of filing its reply to the complaint stating that the matter relates to insurance plan and that it shall be taken care of at the time of final arguments. On the same date the complainant moved an application for passing order against OP3 retail outlet / seller of the mobile and deletion of OP2 from the array of parties on grounds that OP2 was not traceable and it was OP3 which was whole sole liable since as per its assurance only, the complainant had agreed to take the insurance cover with OP2. Complainant filed MPIP vide SL No. 46793 dated 28.02.2014 for a sum of Rs. 890/- paid to OP2 by the complainant for insurance cover for the period 28.02.2014 to 27.02.2016 for accident protection against water damage to the mobile which plan receipt bears OP3 stamp also. The OP1 did not appear in the proceedings after October 2015 till September 2016 and did not file either evidence by way of affidavit or written arguments.
4. Evidence by way of affidavit and written arguments were filed by the complainant wherein it was pleaded that at the time of purchasing the aforesaid mobile phone, OP3 had given the offer of insurance of the mobile with OP2 from their shop and as such in pursuance of  and on the assurance of OP3, the complainant agreed to take the mobile insurance from OP2 through OP3 at the shop of OP3. It has been further submitted by the complainant that he had purchased the above mobile phone from OP3 after being convinced by the reputation of the company of OP1 and insured it with OP2 on the assurance and behest of OP2, but after using the mobile and from the conduct of OPs, the complainant was astonished and had lost his faith in the company of OPs when his mobile was never returned to him by OP2 after July 2014.
5. Arguments were heard on behalf of complainant as well as OP1 and the documents placed on record were perused. Before establishing culpability of the OPs, their respective roles have to be examined in the present case and allegation leveled against them and defence put forth if any by the OPs. OP2 and OP3 were not served and were proceeded against ex-parte respectively who were the insurer of the mobile and the retail outlet from where the mobile was purchased by the complainant. OP1 prayed for deletion of its name as manufacturer vide order 1 rule 10 CPC application on grounds that it had no role or answerability / accountability for extended warranty / insurance issued by OP2 to the complainant to which defence the complainant opposed by stating that OP1 and OP2 had principal agent relationship and no document was placed on record by OP1 to show responsibility of OP2 for extended warranty. However, subsequently complainant filed an application for deletion of OP2 from array of parties and for passing order against OP3 as mobile shop keeper / retail outlet / seller on whose assurance the complainant had agreed to take mobile insurance plan from OP2 and OP3 had taken full guarantee of mobile in case of default / defect and complainant prayed for relief / direction against OP3 as being “whole sole liable” and no relief was sought in the said application against OP1.
6. In light of the above developments / pleadings, application under order 1 rule 10 of CPC filed by OP1 is allowed and its name is deleted from array of parties as no relief is eventually prayed for against OP1 by the complainant and in his written arguments also, complainant prayed for directions against OP3 only. Therefore, we also allow the application filed by the complainant for passing order against OP3 and hold OP3 guilty of deficiency of service and  direct OP3 as key responsible agent for inducing complainant to take insurance from to refund the amount of the mobile phone being Rs. 8,900/- alongwith                 Rs. 5,000/- as compensation and Rs.  3,000/- as litigation charges to the complainant within a period of 30 days from receipt of this order failing which an interest @9% p.a. shall be payable to the complainant by OP3 on the total amount of Rs. 16,900/- from the date of institution of the case till the date of realization.
7. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8. File be consigned to record room.

(Announced on 03.05.2018)          

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member