OP No.3 in its reply has taken preliminary objections such as maintainability, estoppal and jurisdiction etc. It has been submitted that there is no deficiency in service and unfair trade practice on the part of replying OP and the complainant is not entitled to get any compensation at all as the handset was repaired and handedover to customer vide AWB: 858979880 on 16.05.2017 as per entire satisfaction of the customer and also as per the terms and conditions of the policy. The insured has violated the terms and conditions of the insurance policy which rendered himself disentitled to any claim whatsoever. The liability of the replying OP is subject to terms and conditions as laid down under the policy. Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint has been made.
3. Opposite party No.1 & 4 did not appear despite notice sent through RC as well as publication issued in newspaper and were proceeded against exparte.
4. The complainant in evidence has tendered affidavit Ex.CW1/A and documents Ex.C1 and Ex.C2. On the other hand the appearing Ops have tendered affidavits and documents Ex.R1 to Ex.R5.
and op no.3 then led their respective evidence by way of affidavits and documents.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in the complaint. He has also produced bill Ex.C1 and claim form Ex.C2. On the other hand, OP No.2 has tendered affidavit of Sh. Priyesh Poovanna, Country Legal Counsel as Ex.R31, copy of extract of minutes of board meeting Ex.R4, warranty conditions Ex.R5 whereas op no.3 produced affidavit of Sh.Karan Singh Chaudhary as Ex.R1, copy of insurance policy Ex.R2.
7. It is an admitted fact on record that the complainant had purchased a Apple i7 (32 GB) phone for Rs.60,000/- from Op No.1 against memo No.A-59359 dated 09.10.2016. It is further admitted that the complainant his mobile phone insured from Op NO.3 through Op No.1. It is also admitted on record that the mobile of the complainant was damaged on 11.03.2017 at about 10 a.m. when the complainant was proceedings towards his house and some motorcyclist hit the complainant as a result the mobile phone fell down on the ground and was broken and internal system of the mobile phone also suffered damages. It is also admitted on record that on 27.0.3.2017 the Op No.1 had delivered the phone to the complainant allegedly duly repaired by the service centre of Op No.4.
8. As per the allegations of the complainant though the mobile was repaired but however, he noticed that the screen of the mobile was got replaced but the phone was not functioning properly. Though the complainant has alleged a manufacturing defect in the mobile set in his complaint but perusal of the evidence of the complainant reveals that he has not placed on record any document from which it could be presumed that the mobile phone of the complainant suffers from any manufacturing defect.
9. So from the evidence of the complainant it is apparently clear that there is no fault at all on the part of manufacturer/ OP no.2 and the complainant has also led no evidence, as such the complaint against Op No.2 stands dismissed.
10. As per allegations of the complainant even after replacement of the screen of the mobile set it was not working properly. It is proved fact on record that the mobile set was duly insured with the Op No.3 at the time of accidental damage of the mobile set. Though the same was got repaired by the Op No.3 from Op nO.4 as per terms and conditions of the insurance policy, but however, since the mobile set of the complainant was not duly and properly repaired and the same was not in a proper working condition, so it was legal obligation of the Op Nos.3 & 4 to provide to the complainant a defect free mobile as per the terms and conditions of the policy. Non-providing of such services to the complainant clearly amounts to deficiency in service on the part of the insurance company as the mobile was within the validity f the insurance policy when it was allegedly damaged in the accident.
11. In view of the above, we allow the present complaint and direct the complainant to handover the mobile set to the opposite parties within a period of 15 days from the receipt of the copy of order and Op Nos. 3 & 4 are directed to get the mobile repaired and to make the same defect free and in working condition without charging any amount on account of expenses and repairing. We also direct the ops to further pay a sum of Rs.3000/- as composite compensation and litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to record room.
Announced in open Forum. President,
Dated: 06.03.2019. District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
