BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.335 of 2019
Date of Instt. 20.08.2019
Date of Decision: 01.12.2023
Opinder Singh Advocate, Resident of House No.37-B, Surya Enclave, Opp. Market, Jalandhar, Punjab.
..........Complainant
Versus
1. Xioami Technology India Pvt. Ltd., Sector 8th Floor, Tower-1, Umiya Business Bay Marathalli-Surjapur, Outer Ring Road, Bangalore, Karnataka-560103, through its Managing Director/Principal Officer/Manager.
2. MI Project through Xiaomi Technology India Private Limited, 7 Modi Warehouse Darbanpur Road, Opposite HDFC Bank Hasanpur, Gurgaon, Haryana.
3. One Assist, Corporate Office, One Assist Consumer Solutions Private Limited, Acmew Plaza, Andheri-Kurla Road, Andheri (E), Mumbai.
4. Vivek Kumar, Customer Service Representative Of One Assist, Consumer Solution Private Limited, Acmew Plaza, Andheri- Kurla Road, Andheri (E), Mumbai.
5. Vikrem Kaushik, Manager, MI Store/Service Center, Opp. Nikku Park, Model Town, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jyotsna (Member)
Present: Sh. S. C. Sood, Adv. Counsel for Complainant.
Sh. Bharat Mahajan, Adv. Counsel for OP No.1.
OPs No.2,4 & 5 exparte.
Sh. A. K. Gandhi, Adv. Counsel for OP No.3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant allured by the advertisement of OP that they are providing mobile phone products and the same also includes insurance cover against Accidental and Liquid damages per invoice value and at the same time of the said representation the OP had assured that they are providing best services and in timely manner. At the time of purchasing the phone (Redmi Note 6 Pro), the Complainant paid an additional amount of Rs.999/- for M.I protect plan (insurance). The OP No.1 is the manufacture company of the mobile phone, OP No.2 is MI protect who give its rights to OP No.3, OP No.3 is the insurance company in the name of One Assist working for Mi, OP No.4 is the customer service representative of insurance company One Assist and OP No.5 is the Manager, MI. store/service center. Believing upon the assurances made by the representative of the OP, the complainant took policy from the OP after paying premium which was effective from 24 Jan, 2019 onwards. For the insurance of the phone the OP charged additional premium in addition to phone amount as mentioned above to the extent of Rs.999/-. Accordingly, the insurance MI protect protection plan 12001-17000 was issued for period of 24.01.2019 to 23.01.2020. During the subsistence of the policy the item insured accidently fell in the bathtub on 25 June, 2019; when the complainant at night was in his bathroom and was about to click picture of his daughter and his foot slipped and the phone fell into the bathtub. Now phone is on but display and touch is not working. Complainant tried his best to save the phone but accidentally and due to slipping of the foot phone fell in water. It was merely an accident and could not have been foreseen by the complainant. As the item was covered under the insurance plan the complainant claimed for damages/insurance cover as per service request ID 4354071. The insurance company on June 28, 2019 declined the request of claim giving the reason that the damage suffered was due to improper handling. The same was included in the protection plan and therefore it is against the insurance policy. Which is not true as it was covered under the protection plan. The OPs No.1 and 2 refer matter to OP No.5 being his own company service Centre and given assurance to complainant that they will repair it but after getting estimate from his centre of Rs.11,615/- for repairing of MI (Redmi Note 6 Pro) phone they have refused to repair. However due to this inconvenience from the OP, the complainant was compelled to purchased new phone along with policy of Mi protect that is of Rs.999/-. The repudiation done by the OPs are unlawful, illegal and totally against the terms and conditions of the insurance policy. There has never been any 'Improper Handling' by the complainant. The damage occurred to the phone only and only on account of accident as per reason stated in the complaint and the same is covered under the terms and conditions of the insurance policy. The complainant was always using his phone as per the terms and condition of insurance policy. By making such false and fallacious grounds the OPs cannot resile from the insurance policy. The unilateral act of the OPs has made the insurance redundant and purpose of insurance has been defeated. The repudiation of insurance claim has no relation with accident, which has resulted in loss. The complainant has never used the phone carelessly or in poor manner and has not violated the insurance policy. Under the given circumstances, the OPs are guilty of practicing unfair trade practices and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to give a new phone set of similar value or equivalent purchased amount of the mobile set or Rs.20,000/- as compensation being the amount of claim along with interest @24% per annum from the date of damage to till date of realization of the claim amount to the complainant. Further, OPs be directed to pay Rs. 30,000/- as damages for mental tension, agony and harassment and Rs.15,000/- as litigation expenses and Rs.13999/-expense of new phone to the complainant, in the interest of justice, equity and fair play.
2. Notice of the complaint was given to the OPs, but despite service OP No.5 failed to appear and ultimately OP No.5 was proceeded against exparte and notice sent to OPs No.2 & 4 not received back after elapsing of thirty days and ultimately OPs No.2 & 4 also proceeded against exparte, whereas OP No.1 appeared through its counsel, but failed to file written statement despite so many opportunities alongwith cost and ultimately, the defence of OP No.1 was struck off.
3. The OP No.3 filed its written reply and contested the complaint by taking preliminary objections that the present complaint is false, frivolous, vexatious and abuse of the process of this Forum and therefore, liable to be dismissed under Section 26 of the Consumer Protection Act. It is further averred that the complainant had with malafide and dishonest Intention not only concealed the material facts but had also twisted and distorted the same to suit his convenience and to mislead this Forum. The Complaint therefore deserves outright dismissal. It is further averred that the present Complaint is liable to be dismissed for non-joinder of necessary parties. The device of the Complainant was insured with New India Assurance who has not been made a party to the present Complainant. Since, the device was insured with New India Assurance; the liability to pay the Claim was amount is of New India Assurance. Therefore, New India Assurance is a proper and necessary party to the present Complaint. Thus in absence of New India Assurance the present Complaint cannot be decided. It is further averred that the present complaint does not disclose any cause of action against the OP. The cause of action never accrued against the answering OP as the Insurance was obtained by the Complainant from New India Assurance and Claim, if any, becomes payable by New India Assurance and not the answering OP. Thus, in absence of any cause of action against the answering OP, the present complaint is liable to be dismissed qua the answering OP. It is further averred that this Forum has no jurisdiction to entertain the present complaint. There is no deficiency in service or negligence on the part of answering OP. It is further averred that the present Complaint is not maintainable by virtue of Section 8 of Arbitration and Conciliation Act. As per Clause 13.6 of Standard Terms and Conditions applicable with respect to the mobile handset in question, the parties agreed to refer all the disputes arising relating to the service pertaining to the mobile handset in question, to arbitration. The subject matter involved in the present case is also the subject matter of the arbitration clause and therefore, this Forum being judicial authority is duty bound to refer the parties for arbitration.
4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.
7. Admittedly, the complainant has purchased the Xiaomi mobile phone from the OP, vide invoice Ex.C1. As per submission of the complainant, he paid an additional amount of Rs.999/- for MI protect plan i.e. insurance, which was effective from 24.01.2019 onwards. Ex.C-2 has been proved as insurance note. The complainant has also proved that this plan was effective from 24.01.2019 to 23.01.2020 as per Ex.C-3. The complainant has alleged that he slipped in the bathroom at night and the phone fell into the bath tub. Though, the phone is on but display and touch is not working. The complainant approached the OPs i.e. service center with the service request Ex.C-4 and he also applied for claim request, which was repudiated vide Ex.C5 and service record has been proved as Ex.C-6 and Ex.C-7. E.xC-8 is the letter written by the OP i.e. insurance company, vide which the handset of the complainant was protected from accidental and liquid damage.
8. The OP has alleged that it was not an accidental and liquid damage, but it was the negligence of the complainant as there was an improper handling by the complainant. It does not cover the clause of the accident. Perusal of Ex.C-2 shows that this was a MI protection plan and the details of membership and covered problems has been mentioned which reads as under:-
1. Insurance cover against Accidental & Liquid Damage. As per invoice Value
2. Doorstep Pickup and Drop Service for Repairs
3. One call to block SIM card from anywhere in the world in case you lose your phone
4. Docusafe - Get an e-locker to store all your personal data & documents. Access all your im...
5. Lost SIM misuse coverage up to Rs.3000
6. Smartphone Assistance (Get instant answer to your mobile related queries)
From the perusal of these benefits, it is clear that the insurance is covered against accidental and liquid damage as per invoice value. The complainant has categorically alleged that his foot got slip in the bathroom and his phone fell in the bath tub. This suddenly fall in the bathroom due to slipping of the foot is purely accidental and cannot be said to be the negligent handling by the complainant. The OP has repudiated the claim vide Ex.C-5 alleging that the claim request has been closed due to improper handling on June 28, 2019. The complainant has filed the affidavit alleging that it was purely accidental, no counter affidavit has been filed by the OP No.2 as the OP No.2 has not dare to come to the Commission to contest the complaint. So, from the overall circumstances, the complainant is entitled for the relief.
9. In view of the above detailed discussion, the complaint of the complainant is partly allowed qua OPs No.2 to 5 and dismissed against OP No.1 as the OP No.1 is only the manufacturer of the product. The OPs No.4 and 5 are directed to repair the handset of the complainant. The OPs No.2 and 3 are directed to give the services and repair charges as mentioned in Ex.C-6 i.e. Rs.11,615.92 with interest @ 6% per annum from the date of damage, till its realization. Further, OPs No.2 and 3 and OPs No.4 and 5 are jointly and severally liable to pay a compensation including litigation expenses of Rs.12,000/- for causing mental tension and harassment to the complainant. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr. Harveen Bhardwaj
01.12.2023 Member President
