DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  15^th day of June  2016

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                  Date of filing: 21/10/2015

               : Sri.V.P.Ananatha Narayanan, Member

                                                      (C.C.No.151/2015)       

Shaji V Alex

Vattaparambil House

Para Road, Kanjikkode,

Palakkad – 678 621                                         -        Complainant

(By Adv.Joshi K George) 

Vs

1. The Proprietor

    M/s.Wega Electronics, Souprabha

   15/689-1, Kunnathurmedu Post,

   Near South Police Station

   Palakkad – 678 013

2.The Proprietor

    M/s.Blackset Mobile & Watches,

    Opp.PDC bank,

    Sultanpet,Palakkad.

3.The Managing Director

    M/s.Xolo/Lava International Ltd.

    A-56, Sector-64,

    Noida – 201301

    Uttarpradesh, India – 201301

4.The Managing Director

    Apps Daily Solutions Pvt.Ltd.

    D3137-39 Oberoi Garden Estate

    Chandivali Farm Road,

    Andheri  (E) Mumbai – 400 072

5.The New India Assurance CompanyLtd.

   2-B, Unity Buildings Annexe

   P.Kalinga Road, Bangalore – 560 027            -          Opposite parties

(By Adv.T.Giri)

O R D E R

By Shri.V.P.Anantha Narayanan, Member.

Brief facts of the case.

The complainant filed a complaint against opposite parties because of deficiency of service on the part of the latter. The complainant entrusted “Xolo Wega S” mobile hand set with 1^st opposite party for repair vide Ext.A2 and the same was not returned so far. The above mentioned mobile  handset was purchased from 2^nd opposite party on 15/5/2015 for Rs.8000/- as per bill No.1370 dated 15/5/2015 vide Ext.A1 and 3^rd opposite party is the manufacturer of the  mobile handset in question. Along with the mobile handset the complainant also purchased a “mobile hand insurance package” with Rs.599/- from 4^th opposite party vide Ext.A3 through 2^nd opposite party. Through their policy marked as Ext.A3 & A4, 4^th opposite party offers insurance coverage against physical damage and fluid damage for 12 months. According to the policy document, the New India Assurance Co.Ltd.  Bangalore, the   5^th opposite party is providing insurance coverage for the 4^th opposite party vide their policy No.670302/46/14/24/00000002.  

The  complainant was using the mobile set and on 23/7/2015, it slipped from his hand, fell down and its display  got damaged. On 24/7/2015, the complainant approached 2^nd opposite party with the damaged mobile set. After inspecting the same, 2^nd opposite party directed the complainant to hand it over to 1^st opposite party who is the authorized service centre of Xolo mobile handsets. Accordingly, he gave the mobile set with battery to 1^st opposite party who issued service receipt No.2413 dated 24/7/15 marked as Ext.A2 and told the complainant to bring original purchase bill and insurance policy and one set of their photocopies. On 27/7/15 complainant visited the 1^st opposite party and handed over the original documents and their photocopies  to 1^st opposite party, who verified the photocopies with their originals and returned the original.

1^st opposite party offered to repair the mobile set free of cost and would return the same within two weeks. On 16/8/15 the complainant approached the 1^st opposite  party to get back the repaired mobile set and the 1^st opposite party informed that they  had forwarded the   mobile set to 3^rd opposite party for repair and would return the same to the complainant before 20/8/2015. The complainant waited till 20/8/2015 believing the words of 1^st opposite party and on 20/8/2015 visited 1^st opposite party, who informed him that they had stopped acting as an authorized service centre of 3^rd opposite party and hence they are  not bound to return the mobile set to the complainant. 1^st opposite party also told the complainant not to visit his shop for the mobile handset and to contact 3^rd opposite party for that. Aggrieved by the action of 1^st opposite party, on the same day, the complainant approached  the 2^nd opposite party and as per their direction the complainant handed over the mobile handset to 1^st opposite party, for repair. The 2^nd opposite party told the complainant that he would not be responsible  for any offer sales service and 1^st and 3^rd opposite parties would be responsible for the same. The complainant pleaded that although he tried to contact 1^st opposite party and 3^rd opposite party several times through their customer service, he did not succeed. Further according to him, he could not contact 5^th  opposite party  because of absence of their correct and complete address.

The complainant adds that he is an employee of a private company and has purchased the mobile handset  using his limited resources. He has purchased the mobile handset believing the words and offers of opposite parties and wanted for long to get back the mobile handset after repair. He purchased the mobile for discharging his official duties and meeting his personal needs. Since 24/7/15, the  date on which the complainant approached the 2^nd opposite party and 1^st opposite party for repair of his mobile handset the complainant appeals to the Forum that he has suffered a lot of difficulties, both official and personal, losses both monetary and non monetary due to the absence of a good mobile of his own. He lost access to valuable  contact list saved in the mobile. The 5^th opposite party though file though filed their version admitting  the insurance policy,  but their contentions could not be admitted because they were false and frivolous. Their argument is that there is no deficiency of service on their  part is also not correct. Thus according to the complainant the opposite parties committed deficiency of service and as a result, he suffered a lot of monetary and non monetary losses and mental agony. The total damages on account of deficiency of service committed by opposite parties claimed by the complainant amounts to Rs.1,00,000/-.

The complaint was admitted and notice was issued to both parties.

In this case, opposite party 1 to 4 did  not appear before the Forum.    Hence, they were set exparte. 5^th opposite party appeared before the Forum and filed their version.

According to the version  filed by 5^th opposite party, they denied all the allegation contained in the complaint except specifically admitted by them.  The complaint is not maintainable either in law or facts. The 5^th opposite party admitted that  they issued policy No.67030246142400000002 in favour of 4^th opposite party  M/s.Appsdaily Solutions Pvt.Ltd. for the period from 4/8/2014 to 3/8/2015 and the liability  of 5^th opposite party is subject to the terms and conditions of the policy.

As per the policy the mobile handset was insured which covered physical damage only including fluid damages. According to 5^th opposite party the mobile handset was handed over to 1^st opposite party. There was no proof to show that the mobile slipped out of the hand of the complainant, fell down and its display got damaged as alleged by the complainant. In his complaint there was no evidence to show that 1^st opposite party could not repair the damaged mobile handset and which spare parts thereof should be sent through  4^th oppsotie party. Only after verifying the documents and damaged parts 5^th opposite party could undertake liability to compensate for the complainant. According to 5^th opposite party complainant complained  that he handed over the mobile handset to 1^st opposite party and from there it was misplaced. Hence, the former is not entitled to get compensation from 5^th opposite party. The policy conditions say that 5^th opposite party is not liable for the  alleged misplacing, theft or alleged negligence or deficiency of service on the part of OP1,2&3 vide Ext.B1. Hence, the 5^th opposite party contends that they are not liable to pay any compensation or damages in this case. Further the 5^th opposite party denied all the allegations raised in the complaint that the mobile set fell and damaged on 23/7/2015 handed it over to 2^nd opposite party for repair and 2^nd opposite party directed the complainant  for handover the set to 1^st opposite party.

Hence, 5^th opposite party’s contention is that complaint against this opposite party be dismissed with cost.

From the side of the complainant proof affidavit  and argument notes were filed. Ext.A1 to A5 were also marked. From the part of 5^th opposite party. Version, argument notes and chief examination affidavit were filed and Ext.B1 were marked.  From the side of OP1 to OP3 no documentary proof was filed since 4^th opposite party was set exparte, their version was not accepted. Further  they did not file any application to set aside the exparte order.

  From the above we observe that the following issues regarding the above case.

1.Whether there is negligence and deficiency in service on the part of opposite party?

2.If so, what is the relief?

Issue 1& 2

The complainant handed over the mobile handset to 1^st opposite party which is an authorized  service centre. The  mobile slipped out of his hand, fell down and its display was damaged which is subject to proof. According to the complainant the service center (OP1) issued a certificate stating the damages, change of spare parts and claims to be sent through 4^th opposite party for which there is no proof. According to the stand taken by 5^th opposite party, the complainant is not entitled to get compensation from 5^th opposite party  because the complainant handed over the mobile set to 1^st opposite party for repair, where from it misplaced. According to the terms and conditions contained in the policy document, 5^th opposite party is not liable for  the alleged misplacement or theft or for negligence or deficiency of service on the part of OP1 to OP3. Hence no liability  arises for 5^th opposite party to compensate the complainant. Although 4^th opposite party  submitted their version it was not accepted because they were already made exparte and no application was made by them to set aside the exparte order. 1^st opposite party  issued a receipt for getting the mobile handset for repair vide Ext.A2. The mobile was purchased from 2^nd opposite party  (Blackset mobile sand watches) vide Ext.A1. As per the  policy document issued to the complainant 5^th opposite party cannot be held liable for the fault on the part of OP1 to OP3. Hence 5^th opposite party’s contention is accepted. Hence, we allow the complaint and OP4 & OP5 were discharged.

We order that OP1 to OP3 are jointly and severally liable to compensate the complainant. The cost of the mobile set Rs.8000/-  (Rupees Eight thousand only)  plus Rs.2,000/- (Rupees Two thousand only)  by way of compensation for mental agony and Rs.1,000/- (Rupees One thousand only)  towards litigation expenses should be paid to the complainant.

Order shall be complied with within a period of one month from the date of receipt of the order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization.   

Pronounced in the open court on this the 15^th day of June  2016.     

                                                                                         Sd/-

                      Shiny.P.R.

                      President   

                            Sd/-

                      Suma.K.P.

                      Member

                            Sd/-

    V.P.Anantha Narayanan

                 Member

Appendix

Exhibits marked  from the side of complainant

Ext.A1 – Original Bill No.1370 dt.15/5/2015 issued by M/s.Blackset Mobile &

             Watches

Ext.A2 -Original Service Receipt No.2413 dt.24/7/15 issued by M/s.Wega

            Electronics

Ext.A3  – Cover of appsdaily mobile protection pack bearing No.8905694

              511349 of M/s.Appsdaily S olutions P.Ltd.

Ext.A4  -  Policy document issued by New India Assurance Co,Bangalore

Ext.A5  - Warranty card issued under the sign and seal of M/s.Blackset Mobile

              and watches

Exhibits marked from the side of opposite  party

Ext.B1 – True copy of Policy in favour of M/s.Appdaily Sulutions P.Ltd. 

Cost   

Rs.1000/- allowed as cost of the proceedings