DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Consumer Complaint No.: CC/108/2018

Date of Institution : 27.08.2018

Date of Decision : 19.08.2019

M/s Wintop Infotech, Near Old Ram Leela Ground, Backside Police Station, Barnala through its Prop. Vishav Bansal son of Pawan Bansal, resident of Backside Market Committee, Near Savhitkari School, Grain Market Road, Barnala, Tehsil and District Barnala.        

           …Complainant

Versus

1. TVS Electronics Ltd., Survey No. 94/3, Saukya Road, Koraluru Village, Kasaba Hobli, Hosakote Taluk, Bangalore-560067. 

2. One Assist Consumer Solutions Pvt. Ltd., Regd. Office B-24, Manubharati, Azad Lane, Off. S.V. Road, Andheri (W), Mumbai-400058.

3. One Assist Consumer Solutions Pvt. Ltd., Corp. Office 707-708-709, Acme Plaza, Andheri-Kurla Road, Andheri (E), Mumbai-400059. 

        …Opposite Parties

Complaint Under Section 12 of Consumer Protection Act,1986.

Present: Sh. RS Sidhu counsel for the complainant.

Opposite party No. 1 deleted.

Sh. Amarinder Singh counsel for opposite parties No. 2 and 3.   

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

3. Smt. Manisha : Member

(ORDER BY KULJIT SINGH PRESIDENT):

  The complainant namely Wintop Infotech, Barnala through its Proprietor Vishav Bansal has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (As amended up to date) against TVS Electronics Ltd., New Delhi and others. (hereinafter referred as opposite parties).  

2. The brief facts of the present complaint as stated by the complainant are that the complainant had purchased a MI mobile phone having IMEI No. 866407030316103 through on line from opposite party No. 1 vide invoice dated 3.1.2018 for an amount of Rs. 14,999/- and got insured the same from opposite party No. 2 through opposite party No. 1 and paid an amount of Rs. 899/- for insurance and paid total amount of Rs. 15,898/- to opposite parties No. 1 and 2. 

3. It is further alleged that on 28.4.2018 the complainant picked up his set for use and suddenly it fell down on the earth and front glass/ screen of the mobile was broken so he approached the Service Centre of MI at Barnala and officials of MI Service Centre, Barnala told the complainant that if the said mobile of the complainant is insured then complainant have to took the insurance from the opposite party No. 2. Then on 29 and 30 April 2018 the complainant contacted the opposite party No. 2 on their toll free number and told about the said incident and after two days the official of opposite party No. 2 told that the information regarding the same must be given within 48 hours which has been elapsed so opposite party No. 2 is not able to give the insurance of MI phone. Then the complainant contacted the opposite parties No. 1 and 3 and told about the conduct of opposite party No. 2 but they also put of the matter on one pretext or the other which is deficiency in service and unfair trade practice on the part of the opposite parties. The complainant also sent a legal notice to the opposite parties but to no effect. Hence the present complaint is filed seeking the following reliefs:-

1) The opposite parties may be directed to replace the mobile set with new one or refund the cost of the said mobile set to the tune of Rs. 15,898/- alongwith interest at the rate of 18% per annum.

2) To pay Rs. 50,000/- on account of mental agony and harassment.      

3) To pay Rs. 20,000/- as litigation expenses.     

4) Any other relief which this Forum deems fit and proper.     

4. The name of the opposite party No. 1 has been deleted by this Forum on the statement of the learned counsel for the complainant vide order dated 7.2.2019. 

5. After service of notice of this complaint, opposite parties No. 2 and 3 appeared and filed written reply taking preliminary objections on the grounds of false complaint, no cause of action and no consumer dispute. The opposite parties No. 2 and 3 also have taken specific objection that this Forum has no jurisdiction to entertain the present complaint. Further, there is no deficiency in service or negligence on the part of the opposite parties. In the present case the claim was rejected as per terms and conditions applicable to the mobile handset and opposite party No. 2 is merely a service provider which arranged the insurance of the mobile handset through National Insurance Company Limited which is a necessary party  so complaint is also bad for non joinder of necessary parties. Further, as per Clause 13.6 the parties agreed to refer all the disputes arising to arbitration so this Forum being judicial authority is duty bound to refer the parties for arbitration. It is stated that there was delay on the part of complainant to report the damage of mobile handset to the answering opposite party and according to terms and conditions in case of accidental and liquid damage to the handset customer is required to call One Assist call center on toll free No. 18001233330 or login to www.oneassist.in within 48 hours of discovering the damage so the complainant does not have any claim under the insurance plan as there was delay in reporting the damage of the mobile.  In the present case the complainant admitted that the incident of damage occurred on 28.4.2018 but he raised the claim on 5.5.2018 after 7 days of event so claim of the complainant was closed as per terms and conditions as damage should be reported within 48 hours but complainant failed to do so.  

6. On merits, the opposite parties denied all the averments of the complaint but only admitted that the complainant raised the claim on 5.5.2018. Lastly, they denied that there is any deficiency in service on their part and prayed for the dismissal of the present complaint with heavy cost. 

7. The complainant in order to support his complaint has tendered in evidence copy of bill as Ex.C-1, copy of legal notice alongwith postal receipt as Ex.C-2, undelivered envelope of notice as Ex.C-3 and Ex.C-4, reply of legal notice by opposite party No. 3 as Ex.C-5, affidavit of complainant as Ex.C-6, copy of email as Ex.C-7 and closed  the evidence. 

8. On the other hand. the opposite parties No. 2 and 3 to support their version has tendered into evidence copy of standard terms and conditions as Ex.OP-2.3/1 and closed the evidence.

9. We have heard the learned counsel for the parties and have gone through the record on the file. Written arguments filed by the parties have also been gone through.

10. Before going to the merits of the present complaint firstly we deal with the main legal objections specifically taken by opposite parties No. 2 and 3 that as per Clause 13.6 of terms and conditions the subject matter involved in the present case is also subject matter of the Arbitration clause so this Forum being judicial authority is duty bound to refer the parties for arbitration and also specifically objected that this Forum has no jurisdiction to entertain the present complaint. 

11. Firstly, we deal with the first objection of the opposite parties that this Forum is duty bound to refer the parties for Arbitration and to rebut this objection of the opposite parties we relied upon the order of Hon'ble Apex Court of India in case titled National Seeds Corporation Limited Versus M. Madhusudhan Reddy and Another reported in 2012 (1) Apex Court Judgments-265 (SC) in which it is held as under.-

“........ Consumer Protection Act, 1986, S.3, Arbitration and Conciliation Act, 1996, S.8- Arbitration Clause- Does not oust the jurisdiction of Consumer Forum- If a complaint is filed under the Consumer Act in the first instance then a consumer cannot be denied relief by invoking S. 8 of Arbitration and Conciliation Act, 1996. (Para 29)”

In view of this citation of the Hon'ble Supreme Court of India, the objection of the opposite parties has no force and present complaint is maintainable before this Forum. 

12. Secondly, we deal with the other objection of the opposite parties that this Forum has no jurisdiction to entertain the present complaint. To decide this objection firstly we read the Section 11 of the Consumer Protection Act, 1986 as under.-

“11. Jurisdiction of the District Forum.- 

(1) subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs)

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction.-

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b) any of the opposite parties, where there are more than one at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside or carry on business or have a branch office, or personally work for gain, as the case may be acquiesce in such institution; or 

(c)  the cause of action, wholly or in part, arises. 

13. In the present case the complainant already got deleted the name of the opposite party No. 1 from the array of the opposite parties and opposite party No. 1 from whom the complainant purchased the mobile set in question has no branch office at District Barnala. The opposite parties No. 2 and 3 from whom the complainant purchased the insurance policy for  his mobile set as alleged by him in his affidavit Ex.C-6 (as complainant has not filed any insurance policy of the mobile handset on the file), have no branch office within the jurisdiction of this Forum. The complainant mentioned in his complaint and affidavit Ex.C-6 that there is service centre of MI Mobile Phones at Barnala but he did not implead it in the array of the opposite parties. Further, he mentioned in his complaint that he made the payment of mobile phone and insurance policy at Barnala but to prove this plea he has not tendered any document in his evidence or filed any document on the file. Even, in his affidavit Ex.C-6 he has not mentioned anything in this regard. So, in our view there is no cause of action wholly or partly arisen within the jurisdiction of this Forum. In this way the objection of the opposite parties No. 2 and 3 has force and this Forum has no jurisdiction to try and entertain the present complaint.   

14. As a result of the above discussion, the present complaint is dismissed for want of territorial jurisdiction. No order as to costs or compensation. However, the complainant is at liberty to approach the appropriate District Forum on the same cause of action if he desires so.  Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.

  ANNOUNCED IN THE OPEN FORUM:

19th Day of August 2019

 

 

            (Kuljit Singh)

           President

 

           (Tejinder Singh Bhangu)                Member

 

(Manisha)

Member