DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 28th day of March, 2023
Filed on: 16/12/2017
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
CC NO.503/2017
Between
COMPLAINANT
Francis Dency Sikkera, Chathanassery house, Vadakkekkara, Paravur, Kunjithai,P.O. 683522.
(Rep. by Adv. Mary Catherine Priyanka P.S., North Paravur)
VS
OPPOSITE PARTIES
Manager Lulu Connect, Lulu Mall, Edappally, Ernakulam, Edappally P.O.
FINAL ORDER
Sreevidhia T.N., Member:
1. A brief statement of facts of this complaint is as stated below:
The complainant had purchased an Apple I phone 5S 16 GB grey colour from the opposite party on 09/09/2016. The complainant had paid an amount of Rs.20,499/- as cost of the product. The salesman of the opposite party assured that the product will be covered by insurance for a period from 09/09/2016 to 08/09/2017 by a policy named ‘Apps Daily Platinum 30K’. The complainant had paid an amount of Rs.2,499/- as subscription charges for the insurance policy and has obtained receipt for it. Though the complainant used the phone with utmost care and caution the phone had felt down from the hands of the complainant. It caused damaged to the mobile phone’s outer body affecting the display and glass panel from its original position. Immediately the complainant approached the opposite party’s office for getting the claim of the insurance policy the complainant had taken. But the opposite party’s authorized persons informed the complainant that they will repay the premium amount of Rs.2,499/- and they also expressed their willingness to replace the damaged products with new one on the basis of the insurance coverage.
The complainant states that the opposite party had assured insurance protection for the product from 09/09/2016 to 08/09/2017. The complainant had approached the opposite party for getting his claim within the period of insurance policy itself ie. on 14/07/2017. Even though the complainant had a valid insurance policy the opposite party had denied the claim of the complainant by stating flimsy reasons. The above action of the opposite party is unfair trade practice. The complainant had sent a lawyer notice to the opposite party on 24/08/2017 but the opposite party had not replied to the lawyer notice.
Hence the complainant approached this Commission seeking orders directing the opposite party to replace the complainant’s mobile phone with a new one or to refund the price of the mobile phone along with a compensation of Rs.20,000/- and cost of proceedings.
2. Notice.
When the case was taken on file on 16/12/2017, notice was issued to the opposite party from this Commission on 09/01/2018.
Upon notice opposite party appeared and filed their version.
3. Version of opposite party
The complaint is not maintainable either in law or on facts. The complainant is not a consumer as far as this opposite party is concerned and the allegations made in the complaint do not constitute a consumer complaint. The allegation in the complaint is that the complainant had insured the phone purchased by him against the accident or damages that may occur on account of the usage of the phone from a company called ‘Apps Daily Platinum 30K’ and paid a sum of Rs.2,499/- towards the premium. But strangely enough the complainant had not impleaded the insurance company. Therefore the complaint is bad for non-joinder of necessary party. On that score alone the complaint is liable to be dismissed.
It is admitted that the complainant had purchased an Apple I Phone on 09/09/2016 for a sum of Rs.20,499/- from the opposite party. But the allegation at paragraph I of the complaint that the insurance coverage was taken from Apps Daily as per the instruction of the officer of the opposite party is not at all correct and hence strongly and vehemently denied by the opposite party. The insurance policy is exclusively dealt with by the insurer and is governed by the insurance policies formulated and controlled by the insurer alone. The opposite party is only a dealer as far as the insurance policy is concerned.
Though the opposite party has no role to play in the policies of the insurance company, the opposite has duly taken up the matter with the distributor and the distributor of the insurance policy had intimated to the opposite party that the distributor is ready to refund the amount collected and this fact is already informed to the complainant.
The allegation that the complainant was offered with insurance protection for a period from 09/09/2016 to 08/09/2017 and the complainant approached the opposite party on 14/07/2017 during the period of insurance protection, but the opposite has evaded and cheated the complainant and that the complainant issued a notice on 24/08/2017 through his lawyer, but the opposite party did not attend respond to the same etc. are entirely false, baseless and hence denied by the opposite party. The terms and conditions governing the insurance of the phone is governed by the policy conditions issued by M/s. Apps Daily. Though the amount paid to M/s. Apps Daily was shown in the invoice it is not received by the opposite party undertaking to cover the phone purchased by the complainant. There is no deficiency in service or unfair trade practice on the part of the opposite party.
4. Evidence
The evidence in this case consists of the proof affidavit filed by Galeesh C.S., IT Mobile in charge of Lulu Connect, a unit of Lulu International Shopping Mall Pvt. Ltd, the opposite party in this case. Opposite party has no documentary evidence.
But on perusal of documents in the case bundle, it is seen that the complainant has filed three documents in original which are filed along with the complaint are not seen marked at the time of evidence. The complainant was absenting since 18/11/2020. Neither the counsel for the complainant or the complainant was present at the time of evidence of the complainant. Hence the case is posted for opposite party’s evidence without considering the documents filed by the complainant which are seen filed earlier on 27/11/2017 itself. Hence we have considered the three documents filed along with this complaint also.
The case was listed for hearing to 31/08/2022, and then adjourned to 07/12/2022. On 07/12/2022 opposite party represented and since the complainant was absent, final hearing of the case adjourned to 06/01/2022 and then to 20/02/2023. On 20/02/2023, both parties were absent and since the matter pertains to the year 2017, the case is posted for orders to 24/03/2023.
5. Points for consideration in this case are
1. Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?
2. If so, reliefs and costs?
The case of the complainant is that he had purchased an Apple I Phone from the opposite party for Rs.20,499/- and the complainant had also taken an insurance coverage ie. ‘Apps Daily Platinum Coverage 30K’ in order to get the insurance coverage for the complainant’s phone for the period from 09/09/2016 to 08/09/2017. For this purpose the complainant had paid Rs.2,499/- as premium amount to the opposite party on 14/07/2017, the complainant’s mobile phone happened to fell down from the hand of the complainant causing damage to the outer body affecting the display and panel from its original position. Then the complainant approached the opposite party for getting his claim of the mobile phone. Then the opposite party informed the complainant that they will repay the premium amount to the company since the insurance company is not functioning now. The complainant submits that his complaint that the denial of the claim of the complainant amounts to deficiency in service.
We have verified the documents filed along with complaint and the version filed by the opposite party.
Document No.1 is an invoice issued by the opposite party in the name of Francis on 09/09/2016 for Rs.22,998/- (vide Recipt No. 41/35269). As per the invoice the complainant had purchased an Apple I phone 5S16GB Grey Serial No. 355674072053468 for Rs.20499/- from Lulu Connect, Lulu Shopping Mall, Kochi – 24. The complainant had also purchased an Impex 3D VR Glass VR 01 FOC and an Apps Daily Platinum 30K for Rs.2,499/- on that day. The invoice is issued by Lulu Connect, Lulu Hyper Market, Edappally, Kochi. Document No. 2 is a lawyer notice issued by the complainant to the opposite party, The Manager, Lulu Connect, Lulu Mall, Edappally through Adv. Boby Antony M. Document No. 3 is a acknowledgment card of the lawyer notice sent to the opposite party.
We have verified the documents, version filed by the opposite party. From document No. 1 produced by the complainant it is clear that the complainant had purchased the mobile phone for Rs.20,499/- and for the protection coverage of his phone he had taken an insurance package ‘apps Daily Platinum 30K’ from the opposite party, Lulu Connect against the damages that may occur on account of the usage of the phone. Rs.2,499/- paid by the complainant to the opposite party as premium. The complainant purchased this mobile phone on 09/09/2016. Even though no other evidence produced by the complainant regarding the period of insurance coverage, it is assumed that period of insurance is for one year. Moreover the opposite party has not taken any contention about the period of insurance coverage.
The opposite party’s main contention is that the complainant had taken the insurance for the protection and usage of his phone from a company called ‘Apps Daily’ and the policy is named as ‘Apps Daily Platinum 30K’ but the complainant had not impleaded the insurance company though the complainant claiming relief against denial of coverage under the insurance policy taken by him and hence the complaint is bad for non-joinder of necessary parties. The opposite party also contended that they are only a dealer as far as the insurance policy is concerned. The terms and conditions governing the insurance of the mobile phone is governed by the policy conditions issued by M/s. Apps Daily, and without impleading ‘Apps Daily’ the complainant cannot proceed against this opposite party. The opposite party in their version also states that though the amount paid to M/s. Apps Daily was shown in the invoice, it is not received by this opposite party and hence there is no deficiency in service or unfair trade practice occurred from the side of the opposite party towards the complainant.
From the available documents filed by the complainant, it is clear that deficiency in service is proved from the side of the opposite party towards the complainant. Even though opposite party vehemently contended that the amount paid to M/s. Apps Daily was shown in the invoice, it is not received by the opposite party undertaking to cover the phone purchased by the complainant. Opposite party’s this contention is not tenable since as per Document No. 1, opposite party has accepted an amount of Rs.2,499/- as premium towards ‘Apps Daily Platinum 30K’. The opposite party has denied the claim without sufficient reason. The complainant has produced the original of the invoice dated 09/09/2016 in this case. Hence (1) issue is proved in favour of the complainant.
Opposite party has not produced any evidence to prove that the insurance of the complainant’s mobile phone was taken from ‘Apps Daily’ and they have not received the premium amount from the complainant. As per the tax invoice it is crystal clear that opposite party has received the premium amount. The complainant has not received any insurance benefit from the opposite party even though they accepted the premium amount of Rs.2,499/- from the complainant as evidenced by document No. 1, Tax invoice.
From the available documents filed by the complainant, deficiency in service proved from the side of the opposite party towards the complainant and hence we cannot disbelieve the words of the complainant. The complainant had to suffer mental agony, pain and other hardships due to the deficient action of the opposite party.
In the result, the complaint is allowed and hereby pass the following orders.
1. The opposite party shall refund the price of the mobile phone ie. Rs.20,499/- to the complainant.
2. The opposite party shall pay an amount of Rs.4,000/- (Rupees four thousand only) as compensation to the complainant for the inconvenience and mental agony suffered by the complainant.
3. No cost of proceedings is awarded in this case since the complainant is absent on almost all dates of proceedings of the case.
The above order shall be complied with within 30 days from the date of the receipt of a copy of this order.
Pronounced in the Open Commission this 28th day of March, 2023.
Sd/-
Sreevidhia.T.N, Member
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member Forwarded/by Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 503/2017
Order Date: 28/03/2023
