DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 107 of 14.3.2019

                                      Decided on:         1.2.2023

Yadvinder Sharma S/o Sh.Rajinder Parshad R/o VPO Ghanour, Tehsil Rajpura, District Patiala.

                                                                   …………...Complainant

                                      Versus

1. M/s K.K.Mobiles, Backside Bus Stand, Near Valmiki Mandir, Lahori Gate, Patiala through its Proprietor.

2. AmTrust Mobile Solutions, First Floor, Tower-2, Equinox Business Park, LBS Marg, Kurla, West Mumbai - MH-400070, through its authorized signatory.

3. Oriental Insurance Co. Ltd., 2^nd Floor, DJ House Wilson Pen, Compound, Old Nagardas Road, Near Subway, Andheri (East), Mumbai, through its Local Branch Manager, situated at Lower Mall, Sai Market, Patiala

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Hon’ble Mr.S.K.Aggarwal, President

                                      Hon’ble Mr.G.S.Nagi,Member         

PRESENT:                             Sh.Amrinder Singh, counsel for complainant.

                                      OPs No.1&2 ex-parte.

                                      Sh.Rakesh Malhotra, counsel for OP No.3.

 ORDER                                          

1. The instant complaint is filed by Yadvinder Sharma S/o Sh.Rajinder Parshad        (hereinafter referred to as the complainant) against M/s K.K.Mobiles and others (hereinafter referred to as the OP/s) under the Consumer Protection Act ( for short the Act).
2. The averments of the complainant are as follows:

That the complainant purchased a mobile hand set make Vivo Y71 from OP No.1 on 12.8.2018 for Rs.10,990/-.The same was got financed from Home Credit Company.The said mobile device also got protection membership from OP No.2 vide certificate No.3805387685 and paid Rs.1089/- in this regard , according to which the mobile hand set was covered from accident and liquid damage.Due to accident, mobile hand set of the complainant damaged.He approached OP No.1 and submitted mobile phone for repair in the month of October,2018 but the OP failed to give any response.On 7.12.2028 OP No.2 sent SMS to the complainant that it picked mobile phone in question through courier.Again on 26.12.2027 they sent SMS that OPs tried their best to repair and deliver the mobile device within short period but they failed to provide their services and handed over the mobile hand set to the complainant without repair. The OP No.3 has also failed to pay claim to the complainant.The complainant sent legal notice dated 31.1.2019 upon the OPs but of no avail.Due to act and conduct of the OPs, complainant suffered from mentally, physically as well as financially. There is thus deficiency in service on the part of the OPs.Conseuently, prayer has been made for acceptance of the complaint.

3. Upon notice , OP No.3 appeared through counsel and filed written statement while OP No.1 refused to accept the notice and was accordingly proceeded exparte. Notice to OP No.2 issued through registered post was not received back within 30 days of issuance of notice and it deemed to have been served upon Op No.2 but it  failed to appear and contest the complainant and was accordingly proceeded against ex-parte.
4. In the written statement filed by OP No.3 various preliminary objections have been raised.On merits, it is alleged that the mobile was never insured by OP No.3. No contract was ever executed by OP No.3 with OP No.2 with regard to gadget.After denying all other averments made in the complaint, OP has prayed for the dismissal of the complaint.
5. In support of the complaint, ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant, Ex.C1 copy of mobile bill,Ex.C2 copy of insurance cover, Ex.C3 copies of messages, Ex.C4 copy of discharge voucher and claim form, Ex.C5 copy of legal notice,Ex.C6 & Ex.C7 postal receipts and closed the evidence.
6. In rebuttal, ld. counsel for OP no.3 has tendered in evidence Ex.OPA affidavit of Mukesh Malhotra, Divisional Manager of OP and closed the evidence.
7. We have heard the ld. counsel for the contesting parties and have also gone through the record of the case, carefully.
8. The perusal of the record shows that the complainant had purchased a mobile phone from OP No.1 for a consideration of Rs.10,990/- vide Ex.C1.The said mobile was insured under Mobile Device Membership Program from OP No.2 for a membership fee of Rs.1089/-,Ex.C2. The aforesaid mobile set got damaged during 10/2018 i.e. within two months from the date of its purchase and was handed over to OP No.1 for repairs. However, no response was received from OP No.1 and the mobile was handed over to OP No.2 for repairs which the complainant came to know through SMS sent by OP No.2 to the complainant on 7.12.2018 and again on 26.12.2018vide,Ex.C3. However, the mobile was never repaired and returned to the complainant in damaged condition.
9. From the perusal of Mobile Device Membership Programme,Ex.C2, it transpires that all claims had to be filed with Amtrust Mobile Solution i.e. Op No.2 who had issued the said Mobile Device Membership Programme. However, the complainant had relied upon the document,Ex.C4 whereby the claim has been lodged against OP No.3 i.e. Oriental Insurance Co. Ltd..However, the complainant has failed to link this document,Ex.C4 and OP No.3 that the insurance policy having been issued by OP No.3.As such OP No.3 is not at all liable for any type insurance claim as the complainant has not placed on record any insurance certificate having been issued by OP No.3. Moreover, the Mobile Device Membership Program clearly indicates that the claims had to be lodged with Amtrust Mobile Solution for settlement.
10. In view of our above discussion, the complaint is partly allowed and we are of the opinion that OPs No.1&2 are liable for the settlement of the claim. OPs No.1&2 are hereby directed to either replace the mobile hand set in question of the complainant with new one or to refund the entire cost of the mobile hand set. OPs No.1&2 are further directed to pay Rs.2000/-as compensation to the complainant on account of mental harassment suffered by him. The OPs No.1&2 are at liberty to take the possession of old mobile phone from the complainant. Compliance of the order be made by OPs No.1&2 within 30 days from the date of the receipt of certified copy of this order.
11.           The instant complaint could not be disposed of within stipulated period due to heavy rush of work, Covid protocol and for want of Quorum from long time.
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                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President