STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                Date of Institution: 28.04.2022

                                                          Date of final hearing: 17.09.2024

                                                     Date of pronouncement: 19.12.2024

First Appeal No.162 of 2022

IN THE MATTER OF:-

M/s Satyam Mobiles, Sadar Bazaar, Sirsa, District-Sirsa, through its proprietor Amit Gupta.  

                                                             ....Appellant

Versus

1. Mohan Lal aged about 52 years, S/o Sh. Radha Krishan, R/o H. No. 228, D-Block, Sirsa, Tehsil and District Sirsa (Haryana).
2. M.D., Apps Daily Solution Pvt. Ltd., D3137 Oberoi Garden Estates, Chandivali Farm Road, Andheri (E), Mumbai-400072.
3. Incharge, Apps Daily Customer Connect Point, CC1053-Sirsa, Shop No.67, New M.C. Market, Near Circular Road, Sirsa.
4. The New India Assurance Company Limited through its Branch Manager.

            …..Respondents

CORAM:             Sh. Naresh Katyal, Judicial Member.

                             Sh. S.C. Kaushik, Member

Argued by:-       None for appellant.

Respondent No. 1-Mohan Lal in person.

Respondents No. 2 to 4 have already proceeded against ex-parte.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:

                    There is delay of 1047 days in filing of present appeal. To condone the same; application has been filed. From perusal of text of application, it becomes apparent that at the time of filing of this appeal, appellant had not gained anything by filing it, belatedly. It is settled law that Courts of Law should endeavor to decide the lis between the parties on merits, instead of throwing the cause of any litigant, overboard, on technical considerations like limitation. It is also settled law that liberal approach should be adopted in matters concerning condonation of delay (limitation) and acceptance of explanation projected in the application should normally be the criteria, unless said explanation is accentuated by ulterior motives and mala fide intention. In present case, no such mala fide intention or ulterior motive is deciphered. To the contrary, cause projected in application for condonation of delay and accompanying affidavit do constitute ‘sufficient cause’ as per Section 5 of Limitation Act. This being so; application seeking condonation of delay is allowed and delay in filing of this appeal is condoned.

2.      Challenge in this Appeal No.162 of 2022 filed by appellant/dealer has been invited to legality of order dated 29.04.2019 passed by District Consumer Disputes Redressal Forum-Sirsa (In short “District Consumer Commission”) in complaint case No.17 of 2017, vide which complainant’s complaint has been allowed.

3.      Factual matrix: Complainant purchased Mobile Phone known as i-Phone 6 colour Grey (16GB) Rs.39,900/- from OP No.3/appellant herein, vide Bill No.95173 on 24.01.2016 having warranty of one year. Mobile was also got insured from OP No.1 Apps Daily by OP No.3 after receiving premium amount i.e. Rs.3499/- vide Kit/Policy No.8905694511578 for protection, in case of its physical damage, liquid damage, theft, data loss, viruses and all these protections were to be given within 10 days. Complainant lodged complaint to OP No.1 on 02.11.2016 regarding damage of mobile as it fell from his pocket. Thereafter, he deposited mobile set with OP No.2 on 08.11.2016 and Rs.1,995/- was also got deposited by OP No.2 from him as service charge. After receiving Mobile Set, OP No.2 checked it properly and carefully and thereafter, called him (complainant) for taking his photograph. Thereafter, complainant contacted OP No.3 on 10.11.2016, who issued a Job Sheet by OP No. 2 and handed it over to him. On same day message has been sent from OP No. 2 to complainant stating that document and phone set given by him has been approved. On 12.11.2016, OP No.1 intimated him that mobile set is currently being repaired at its Service Centre and same would be dispatched soon but complainant received e-mail message on 26.11.2016 from OPs intimating that his claim is not tenable under the terms and conditions of Protection plan/scheme. Upon preliminary scrutiny of device; it has been observed that: Handset has been repaired or opened before submission to Apps daily. Phone parts are/were missing or replaced. As per plea; complainant’s claim has been repudiated wrongly and illegally, despite that mobile phone was under warranty period. He requested OPs to do needful but initially, OPs avoided the matter and finally refused to admit his claim.

4.      None had appeared on behalf of OPs No.1 & 2 in proceedings of complaint and both OPs were proceeded against ex-parte vide learned District Consumer Commission’s order dated 11.10.2018.

5.      OPs No. 3/dealer/appellant herein raised contest. In its defense; various preliminary objections with regard to complaint being not maintainable and sustainable, there arises no cause of action and complainant being not consumer of OPs and stopped by his own act and conduct, complainant being bad for mis-joinder and non-joinder of parties have been taken. On merit, it is submitted by OP No.3/dealer/appellant that it is doing its business on nominal profit, whereas customer pre-set their mind to purchase mobile set or any related accessory or insurance plan for the same, after going through pamphlets, T.V. advertisement, publications etc. and thereafter approached the dealers and purchase mobile by brand name and model number or any other insurance scheme etc. It is pleaded that phone set purchased by OP No. 3 from its manufacturer/distributor was in sealed and packed condition and it has/had sold the same as received from distributor/manufacturer on nominal profit. In the eventuality, if customer desires to see outlook of set; dealer always provided the demo-set as well as catalogue, provided by manufacturer, hence there is no active part between customer and manufacture. OP No. 3/dealer/appellant has never given any guarantee/assurance or warranty of mobile set or any insurance plan to complainant and never recommended any customer to purchase any insurance policy from it. It is/was complainant himself, who desire to purchase the same.

6.      OP No.4/insurer in its separate defence has submitted that there is no contract between complainant and insurer. Two insurance policies No.6703024615240000000 w.e.f. 04.08.2015 to 03.08.2016 and insurance policy No.67030246152400000008 w.e.f. 01.02.2015 to 31.01.2016 were issued to Apps Daily Solutions Private Limited covering mobile handset from all risk. However, said policies were cancelled by New India Assurance Company Limited (Insurer) w.e.f. 11.11.2015 and information was given to Apps Daily Solution Private Limited-Mumbai in writing and premium in respect of remaining period was duly refunded. As such, there is/was no existing contract of insurance with Apps Daily Solution Private Limited, so insurer is not liable in any way after 10.11.2015 and it is not proper and necessary party. As per plea; since there was no policy ever issued to complainant, so question of any liability of insurer does not arise.

7.      Complainant as well as OPs No. 3 & 4 led their respective evidence, oral as well as documentary.

8.      On analyzing the same; learned District Consumer Commission-Sirsa has allowed the complaint vide order dated 29.04.2019 and directed OPs No.1 to 3 to replace the damaged mobile phone of complainant with same make and model or in the alternate; refund the cost of mobile within a period of 30 days from date of receipt of order. It is observed that in case, orders are complied within stipulated period, OPs No.1 to 3 are liable to interest @ 7 % p.a. on insured amount of mobile till its realization. Sum of Rs.5,000/- has also been awarded to complainant towards compensation and litigation expenses.

9.      Feeling aggrieved; OP No.3/dealer has filed this appeal. In proceedings of this appeal, respondent No. 2 to 4 was proceeded against ex-parte vide order dated 28.11.2023 of this Commission. Record of complaint case too has been perused. None has appeared on behalf of appellant and consequently, there has been no assistance from appellant side, so far as text of memorandum of this appeal is concerned. To the contrary, Mohan Lal-complainant/respondent No. 1 used to appear in person. Since, there has been no representation from appellant’s side therefore, this Commission proceeds ahead to dispose of this appeal by itself perusing the averments raised in memorandum of appeal.

10.    It has been stated in memorandum of appeal by appellant/OP No. 3/Shri Satyam Mobiles that impugned order dated 29.04.2019 is illegal. Major fact has not been properly appreciated by learned District Consumer Commission that appellant herein had sold mobile set to complainant in sealed packed condition, as it has/had received from manufacturer. There was no warranty given by appellant to complainant as appellant is merely a dealer. Guarantee/warranty, if any, is given by manufacturer alone, in case, there is any manufacturing defect in the purchased mobile handset, as it has been so mentioned in the Bill No. 95173 of 24.01.2016. Appellant never asked complainant to get insurance cover qua purchased mobile set, as it is not an authorized agent of any insurance company. Inter alia on these pleas; acceptance of appeal has been prayed.

11.    On the other hand; Mohan Lal-complainant has supported the impugned order by urging that all relevant facets of the case have been appropriately analyzed and adjudicated upon by learned District Consumer Commission while allowing his complaint through impugned order dated 29.04.2019.

12.    Admittedly, subject mobile phone set has been purchased from appellant on 24.01.2016 by complainant-Mohan Lal for Rs.39,900/- as it is so evident from perusal of invoice dated 24.01.2016-Ex.C-1. Insurer’s contract between OPs No. 1 & 2 and OP no. 4 came to an end on 11.11.2015 i.e. prior to purchase of mobile phone handset by complainant, so insurer is not liable in any manner. Complainant has alleged that his mobile phone set got damage due to its fall from his pocket on 02.11.2016 and he apprised, time and again to OPs No. 1 to 3 i.e. to manufacturer and dealer but his grievance remain unredressed. To supplant his plea complainant has relied upon document Mark-A to Mark-L which is/are inter-se correspondence(s) between complainant and OP No. 1. Complainant’s claim intimation number is AND_021116_ 197804626. Integral part of these correspondence reflects that complainant’s claim was under process for approval. One such communication (Mark-F) reflects that package will be dispatched shortly to service centre. Likewise, one such communication (Mark-G) recites that phone would be dispatched very soon to the customer contact point. Customer care point is OP No.2 in complaint. As per plea of complainant, he had handed over the damage mobile phone handset to OP No. 2 on 08.11.2016.  If credibility of these communications are tested on judicial parameters then it would give rise to an inescapable conclusion that complainant had been apprising regarding status of his mobile phone set. There is no such communication that mobile phone set was ever dispatched by OP No. 1 (manufacturer) to its customer contact point (OP No.2) and complainant has/had eventually received it. So much so, since complainant has alleged that he has/had never received the mobile set, so it was upto OPs No. 1 & 2 (manufacturer and its customer care point) to answer said plea of complainant, but curiously enough, said OPs have chosen not to appear neither in complaint proceedings nor in proceedings of this appeal. In wake of this fact, there is gross deficiency in service only on the part of OPs No. 1 & 2 (manufacturer and its customer care point). OP No. 3-dealer/appellant herein has only sold the mobile handset to complainant in sealed packet as it has/had received from manufacturer. Complainant had not delivered the damaged mobile handset to OP No. 3/dealer/appellant herein. Matter does not end here. Sale Invoice Ex.C-1 dated 24.01.2016 expressly recites by mentioning attention that “Mobile will carry only warranty, not guarantee and warranty would be provided only by company’s service centre. Admittedly, appellant is only a dealer and not service centre. Hence, appellant is completely is absolved of any liability with regard to damaged mobile phone handset. This being so, collectively, at judicial pedestal, there would be no liability of dealer (OP No. 3/appellant) to answer any claim of complainant, because of damage caused to mobile phone set due to its fall from complainant. The learned District Consumer Commission has committed a fallacy to hold appellant herein/dealer being liable along with OP No. 1 & 2 (manufacturer and its customer contact point). There is neither any deficiency in service on the part of appellant/M/s Shri Satyam Mobile nor any unfair trade practice on its part in view of above factual scenario. Accordingly, this finding of learned District Consumer Commission in its order dated 29.04.2017, against appellant herein/dealer cannot legally sustain and same are hereby set aside qua appellant herein/dealer only. Complainant can only raise his grievance qua OP No. 1 & 2/manufacturer and its customer contact point, who too have been held liable by learned District Consumer Commission in its order dated 29.04.2019.

13.    As a sequel thereto, this appeal of appellant/dealer is allowed. Impugned order dated 29.04.2019 passed by learned District Consumer Commission-Sirsa is hereby set aside qua appellant/dealer alone. It would continue to hold its light of day, so far as respondents No. 2 & 3 (manufacturer and its customer contact point) are concerned, as complainant can legally enforce the impugned order dated 29.04.2019 qua respondent No. 2 & 3 (manufacturer and customer contact point) by adopting due recourse of law.

14.    Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.

15.    Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.

16.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

17.    File be consigned to record room.

Date of pronouncement: 19^th December, 2024.

                                                S.C. Kaushik               Naresh Katyal  

                                                Member                        Judicial Member

                                                Addl. Bench                Addl. Bench