DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

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

Complaint Case No. 364/15

In the matter of:

Mr. Arun Kumar Arya, President (Addl. Charge)

Ms. Sonica Mehrotra, Member

ORDER

Mr. Arun Kumar Arya, President (Addl. Charge)

1. Case of the complainant in the present complaint is that he had purchased an LG mobile phone bearing model no. D380 IMEI no. 354106063869272 from OP1 on 10.01.2015 for a sum of Rs. 11,300/- inclusive of VAT vide invoice no. 47249. On persuasion from OP1 to get the subject handset insured / protected against theft and damage, the complainant got the subject mobile insured with OP2 on 10.01.2015 for validity from 10.01.2015 to 09.01.2017 on payment of Rs. 1,356/- as premium and the said policy also covered the subject mobile phone from theft w.e.f. 10.01.2015 to 09.01.2016. However, the subject mobile phone started giving problems in functioning from the onset its purchased and after few months, its display got damage in August 2015 for which the complainant immediately contacted OP2 and an executive of OP2 visited at complainant’s premises on 20.08.2015 and took the subject mobile phone for repair on issuance of job card no. 816 dated 20.08.2015 for repairing the display defect and assured the complainant to return the same repair within the week. However, when the complainant called up the OP2 asking for status update of repair of his mobile phone, he did not receive any satisfactory reply and never got his mobile phone back. Therefore, alleging unfair trade practice and deficiency of service on the part of OPs for having failed to repair the subject mobile under insurance and return the same, the complainant was constrained to file the present complaint praying for issuance of direction against the OPs to refund the cost of the mobile i.e. Rs. 11,300/- alongwith compensation of Rs. 40,000/- for mental harassment and agony and  Rs. 13,000/- towards cost of litigation.
2. Complainant has attached copy of purchase invoice issued by OP1, copy of insurance certificate bearing no. 53123 dated 10.01.2015 issued by OP2 for mobile protection plan and theft cover and copy of job card no. 816 dated 20.08.2015 issued by OP2.
3. Notice was issued to the OPs on 09.10.2015. OP2 could not be served on the available and known address and complainant prayed for deletion of his name from the array of parties vide application filed on 09.11.2015 and accordingly OP2 was deleted vide order dated 09.11.2015. None appeared on behalf of OP1 despite service effected 19.10.2015 and therefore proceed against ex-parte vide order dated 16.12.2015.
4. Ex-parte evidence by way of affidavit was filed by the complainant exhibiting the original purchase invoice, insurance certificate issued by OP2 under the stamp and seal of OP1 and job card issued by OP2. The matter was reserved for order by the previous Bench on 05.04.2017 but was not passed. On relisting the matter before the present bench, the complainant in hearing held on 07.08.2018 prayed for liberty to file written arguments and filed the same on 28.11.2018 in reassertion of his grievance and relief claimed against the OPs. In hearing held on 06.12.2019, an executive of OP1 appeared and offered amicable settlement which the complainant agreed upon and OP1 prayed for one month time to compensate the complainant. However, none appeared on behalf of OP1 thereafter for three consecutive hearing held in January, February and early March of 2020 and therefore the settlement failed.
5. We have heard the arguments addressed by complainant through video conferencing and have perused the documents placed on record on which perusal a key observation has come to light that the insurance cover note issued by OP2 bears the seal of OP1 which clearly establishes that OP1 and OP2 had mutually beneficial business relationship / tie up and at behest of OP1, the complainant was asked to take insurance cover from OP2. The said exercise was for business promotion of each other in the market for commercial gains. Therefore the role of OP1 and OP2 in the present complaint and inter se is rather collusive in as much as furthering each other’s commercial interests.        

The subject mobile phone was duly insured with OP2 which is proven beyond doubt from material evidence placed on record by the complainant, corroborated / endorsed by OP1 and un-rebutted by OPs due to their willful non-appearance.

6. In the present case since the subject mobile was duly insured with OP2 at the behest of OP1 as can be seen in the insurance certificate, both OP1 and OP2 were liable to pay the insurance claim amount to the complainant since OP1 had received consideration amount for the said handset and OP2 had received premium amount for insuring the said handset from the complainant but both OPs failed to discharge their contractual liability towards the complainant which in our view is act of deficiency of service and unfair trade practice.  However, the complainant deleted OP2 from the array of parties due to its un-traceability and the fact that OP1 has placed it stamp and seal on the policy cover issued by OP2 makes it liable for misdeeds and acts of omission on the part of OP2 as also for deficiency of service and unfair trade practice on its part.
7. We therefore direct OP1, now arraigned as OP in the memo of parties to refund Rs. 11,300/- towards the depreciated value of the subject mobile phone payable as per the terms and conditions  of the insurance of the subject mobile alongwith compensation of Rs. 4,000/- towards mental agony and harassment and Rs. 2,000/- towards cost of litigation to the complainant. Let the order be complied by OP1 within 30 days from the date of receipt of copy of this order.                                 
8. Let a copy of this order be sent to each party free of cost as per Regulation  21 (1) of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 25.09.2020.