Haryana

Ambala

CC/300/2018

Sumit Gupta - Complainant(s)

Versus

WS Retails Service Pvt Ltd - Opp.Party(s)

Surjit Kumar

16 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  300 of 2018.

                                                          Date of Institution         :   07.09.2018.

                                                          Date of decision   :   16.07.2019.

 

Sumit Gupta s/o Shri Sanjeev Gupta, r/o #237, Vidya Nagar Nanhera, P.O. Kuldeep Nagar, Distt.  Ambala.

                                                                                      ……. Complainant.

                                                Versus

 

1. WS Retails Service Pvt. Ltd., SND Warehouse, Shed No.C-1, Door No.4/195, Red Hills Ambattur Road, Puzhal Village, Chennai, Tamil Nadu-600062 through its Authorized Signatory.
2. Syska Gadget Secure, SSK InfoTech Pvt. Ltd., Plot No.521, First Floor, Udyog Vihar Phase-5, Gurgram (Haryana), through its Authorized Signatory.
3. National Insurance Co., Divisional Office, 106, Railway Road, Ambala Cantt. through its Authorized Signatory.
4. New Mass Communication, SCO 152, First Floor, Mugal Canal Market, Karnal-132001 through its Authorized Signatory.
5. Ishar Dass Malhotra and Co., 5541, Sadar Bazar, Ambala Cantt through its Authorized Signatory.

    ….…. Opposite Parties.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Smt. Surjit Kumari, Advocate, counsel for complainant.

Shri Sandeep Kashyap, Advocate, counsel for the OP No.2.

Shri Manish Garg, Advocate, counsel for the OP No.3.                  

OPs No.1,4 & 5 given up.                

 

ORDER:     SH. VINOD KUMAR SHARMA, MEMBER.

 

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay the cost of the mobile in question amounting Rs.11,998/-.
2. To pay Rs.20,000/- as compensation for the mental agony and physical harassment suffered by the him.
3. To pay Rs.10,000/- as litigation charges.
   382.  

                   Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant had purchased a mobile phone model VV86397/Le Eco having IMEI No.867466026648621 & 867466026648639 of Rs.11998/- from the OPs No.1 & 5 through Flipkart Courier, vide invoice No.012016080010731 dated 12.08.2016. The said mobile phone was duly covered by the insurance bearing Coupon No.55223033, after paying Rs.2,000/- with the OPs No.2 & 3. During the period of insurance, on 10.10.2016, the mobile phone fell down from his pocket and broken/damaged. He telephonically contacted with the OPs No.1, who advised him to contact the OP No.2. He contacted the OP No.2 on the toll free number, whose official advised to contact with OP No.4 and to handover the mobile alongwith accessories to it. He contacted the OP No.4 and also sent the mobile phone alongwith accessories to it, who assured that the problem will be solved shortly. Thereafter, he contacted the OP No.3, who told that his mobile phone has already been sent to OP No.2 for necessary action and as soon as the OP No.4 will receive any information from the OP No.2, that will be informed to the complainant. After waiting sometime, he contacted with the OP No.4 and asked about the status of mobile phone, but the OP had always postponed the matter on one pretext or other and lastly refused to do anything in the matter. This way, the OPs have committed deficiency in service. Hence, the present complaint.

2.                Upon notice, the OP No.2 appeared through counsel and filed written version and has raised preliminary objections regarding maintainability; locus standi; bad for non-joinder & mis-joinder of the necessary parties and concealment of true & material facts. On merits, it is stated that complainant is not entitled for any relief. The policy documents clearly show that the contract regarding insurance under Syska Gadget Secure Scheme is facilitated by M/s Leehan Retails Pvt. Ltd. and insurance cover provided by the National Insurance Co. Ltd. The OP No.2 has no contract of insurance with the complainant. However, the claim was intimated by the complainant to M/s Leehan Retails Pvt. Ltd. and the same was forwarded by it to National Insurance Co. The claim of the complainant is under process on the part of the insurance company. The OP No.2 is not liable for any kind of deficiency in service as there is no contract regarding the insurance between the complainant and the OP No.2. Rest of the allegations levelled by the complainant were denied for lack of knowledge and prayer has been made for dismissal of the present complaint.

                   Upon notice, the OP No.3 appeared through counsel and filed written version and has raised preliminary objections regarding jurisdiction. On merits, it is stated that the complainant is estopped to file the present complaint by his own act and conduct. The complainant has not supplied copy of insurance policy. The OP No.3 reserve the right to file better and effective written statement on the receipt of alleged insurance policy. Rest of the allegations levelled by the complainant were denied for lack of knowledge and prayer has been made for dismissal of the present complaint.

                   The complainant had given up the OPs No.1, 4 & 5 through his statement recorded on 13.02.2019. Accordingly, they were given up vide order dated 13.02.2019 by this Forum.

3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-47 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.2 tendered document as Annexure OP2/1 and closed the evidence on behalf of OP No.2. The learned counsel for OP No.3 tendered affidavit of Shri S.C. Dass, Assistant Manager of OP No.3 company as Annexure OP3/1 and closed the evidence on behalf of OP No.3.

4.                We have heard the learned counsel for parties and carefully gone through the case file.

5.                The learned counsel for the complainant reiterated version as  mentioned in the complaint. He argued that the complainant had purchased a mobile phone from the OPs No.1 & 5 through Flipkart Courier, vide invoice dated 12.08.2016. The said mobile phone was duly covered by the insurance with the OPs No.2 & 3 for a sum assured of Rs.2,000/-. On 10.10.2016, the mobile phone was broken/damaged due to falling down from the pocket of complainant. The complainant telephonically contacted with the OP No.1, who advised him to contact the OP No.2. He contacted the OP No.2 on the toll free number and it advised him to contact with OP No.4. Accordingly, the complainant contacted the OP No.4 and sent the mobile phone alongwith accessories to it. After waiting sometime, he contacted with the OP No.4 to ask about the status of mobile phone, but the said OP had always postponed the matter on one pretext or other and lastly refused to do anything in the matter, therefore, the OPs committed deficiency in services.

6.                 Contrary to it, the learned counsel for the OP No.2 has reiterated the version as mentioned in the written reply. He argued that the policy documents clearly show that the contract regarding insurance under Syska Gadget Secure Scheme is facilitated by M/s Leehan Retails Pvt. Ltd. and insurance cover provided by the National Insurance Co. Ltd. The OP No.2 is not liable for any kind of deficiency in service, as there is no contract regarding the insurance between the complainant and the OP No.2. The learned counsel for the OP No.2 has drawn our attention towards the condition mentioned at Page No.19 of Booklet Annexure R-3, which reads as under:-  

“You hereby acknowledge the fact that all of insurance claims will be settled and paid by the National Insurance Company Ltd./The New India Insurance Company Ltd and we are acting only a mediator between you and the National Insurance Company Ltd./The New India Insurance Company Ltd., therefore we will not be responsible for any claim or loss, if National Insurance Company Ltd./The New India Insurance Company Ltd. rejects your claim.

                   In view of the above, he Counsel for the OP No.2 has vehemently argued that National Insurance Company is liable to pay the claim to the complainant.

7.                 The learned counsel for the OP No.3 has reiterated all the points mentioned in the written version of the OP No.3. He has argued that the complainant has not supplied copy of insurance policy, so the question of rejecting the claim does not arise by the OP No.3 and there is no deficiency in service on the part of the OP No.3

8.                From perusal of the case file, it is crystal clear that the complainant had purchased the mobile in question from the OP No.1 vide invoice dated 12.08.2016 (Annexure C-2). The complainant has placed on record copy of insurance card bearing No.55223033 (Annexure C-3), from which, it is also clear that the said mobile set of the complainant was duly insured through OP No.2. The mobile set in question got broken/damaged within the warranty period of the insurance after falling down from the pocket of the complainant and he deposited the mobile with the OP No.4 i.e. service centre as is evident from the job-card Annexure C-4. However, the OPs did not pay the claim amount to the complainant. As such, the evidence adduced by the complainant goes unrebutted. However, it is pertinent to mention here that the OP No.3 cannot be held liable for making the payment of mobile set, as OP No.2 failed to prove the fact on the case file by leading any evidence, that the mobile set in question was insured from the National Insurance Company not by the New India Insurance Company. The OP No.2 has also not placed on file any document to show that OP No.3 i.e. National Insurance Company had issued the insurance policy in the name of complainant, so complaint qua OP No.3 is liable to be dismissed. The complaint against OPs No.1,4 & 5 is also liable to be dismissed as they were given up by the complainant himself.

9.                In this view of the matter, we hereby dismiss the present complaint against OPs No.1,3,4 & 5 and allow the same against OP No.2 and direct it in the following manner:-

1. To pay  Rs.11998/-.as insured amount to the complainant.
2. To pay Rs.3,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigation expenses.

 

                   The OP No.2 is further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum for the period of default. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced on :16.07.2019.

 

          (Vinod Kumar Sharma)           (Ruby Sharma)               (Neena Sandhu)

              Member                                  Member                       President