BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Complaint Case no.186 of 2017
Date of Institution: 28.07.2017
Date of Decision: 06.03.2019
Mudit Kumar aged 20 years son of Shri Shekhar Jamalia, resident of Ganpati Associates, Near Rachna Palace, Dabwali Road Sirsa District Sirsa.
………Complainant.
Versus
1. Wadhwa Mobile Care, Near Jaipur Hospital, Circular Road, Sirsa, District Sirsa through its proprietor.
2. Apple India Private Limited No.24, 19th Floor, Concorde Tower, C, UB City Vittal Mallya Road, Bangalore-560001, through its authorized signatory.
3.New India Assurance Company Limited Near Bus Stand, Sirsa through its Divisional Manager at Sirsa.
4.YMS Mobitech Pvt. Ltd. 1175, Sector 63, Behind Haldiram Noida, Uttar Pradesh, thrugh its authorized signatory.
……… Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. R.L.AHUJA ………………. PRESIDENT
SH. ISSAM SINGH SAGWAL ……MEMBER
MS.SUKHDEEP KAUR……………MEMBER
Present: Sh. Anil Bansal, Advocate for complainant.
OP No.1 exparte.
Sh. A.S. Kalra, Advocate for opposite party no.2.
Sh.Kapil Sharma, Advocate for opposite party No.3.
ORDER
In brief, case of complainant is that complainant purchased a new Apple i7 (32 GB) mobile berig PIN MN8X2HNIA SIN F175SE5LHG7F, IMEI No.359154072312665 from Op No.1 against the cash amount of Rs.60,000/- vide memo No.A-59359 dated 09.10.2016 with one year warranty. On 11.03.2017 at about when the complainant was having chat with some other person on mobile while proceeding towards his house, a motor cyclist came form the back side and struck his motor cycle into the complainant, as a result thereof, phone fell down from his hand and got broken and the internal system of the same also suffered damages. On 12.03.2017 the complainant brought the said mobile to shop of Op No.1 who kept the mobile and assured that it will intimate the insurance company and its authorized service provider and was asked to inquire after 15 days. On 27.03.2017 Op No.1 delivered the said phone to complainant and it was noticed that the screen of the mobile has been replaced but the functions of the phone were not working properly. The complainant again reported the said defect to the Op No.1 but it refused to do anything further and now the phone is not working. The phone in question is under warranty condition and is also fully insured with Op No.1, therefore, the Ops are under a legal obligation to indemnify/compensate the complainant against all losses. The complainant approached the Ops and requested to do the needful but they did not pay any heed. The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice on their part.
2. On notice, opposite party Nos.2 & 3 appeared and filed their separate replies. OP No.2 in its reply has submitted that it is a common market principle and also an established passion of law that consumers who willfully destroy, damage or negligently handle a product are not eligible to any claim relief under the Consumer Protection Act, 1986. To be specific when consumers cause damage to products by external factors which are not associated with the manufacturing/inherent condition of the product and such which acts are in complete disregard to and in breach of warranty policies of manufacturers cannot claim under the Consumer Protection Act. The warranty does not apply to consumable parts, such as batteries or proactive coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials of workmanship etc. It has been further submitted that Apple Product specifications are available at
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
