Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.

2. The case of the complainant is as follows:  The complainant he who purchased a Samsung Mobile Phone bearing IMEI No.359932/06/181695/6 on 22/8/15 from the 1^st Opposite Party.  It is contented that the said Mobile Phone was got damaged during the third week of March, 2016 and it is not in use.  It is contented that the complainant handed over this phone to 1^st opposite party for rectifying the defect but the 1^st opposite party did not accept it.  According to the complainant it is the duty of the 1^st opposite party to avail insurance coverage to him as assured by opposite parties.  When the 1^st opposite party refused to accept the insurance claim of the complainant he compelled to pay the repair charge Rs.6, 116/- to 1^st opposite party.  It is contented that the complainant issued notice to opposite party on 09/06/2016 and again on 18/06/2016 but the opposite parties reluctant to act on the notices.  Hence this case for reimbursement for the repair charge Rs.6, 116/- cost of litigation Rs.1, 000/- and his TA etc.etc.
3. This Forum entertained the complaint and issued notice to opposite parties for appearance.  On 26/08/2016 the 1^st opposite party was called absent and declared him as ex-party since he was absent on that day.  The 2^nd opposite party entered appearance and filed his version as follows.  According to the 2^nd opposite party the complaint is not maintainable either in law or on facts.  It is contented that there is no cause of action or no jurisdiction for this Forum to try this case.  It is also contended that this case is filed with mischievous intension to realize unnecessary clam from the opposite party.  It is admitted that the complainant who had purchased the Mobile Phone which was manufactured by the 2^nd opposite party in this case.  According to the 2^nd opposite party he is not a necessary party for the proceedings and also contended that the issue only lies with the insurance company.  It is further contended that the broken parts of the Mobile Phone are not covered with in the warranty clam and this opposite party has not committed any manufacturing defect in the Mobile Phone as alleged by the complainant.  It is also submitted that the complainant has no right to get any relief as clamed.  Therefore the 2^nd opposite party prayed to dismiss the complaint in favour of them. 

4. We peruse the complaint, version and records before us and framed the following issues for consideration:

1. Whether this case is maintainable before this Forum?

 2. Whether the opposite parties are committed any deficiency

     in service against the complainant?

                    3. Regarding relief and costs?

5. In order to prove the case of the complainant, complainant he who filed a proof affidavit in lieu of chief examination and examined him as PW1.  Through PW1 Ext.A1 to A7 were also marked.  Ext.A1 is the Retail Invoice dated on 22/08/2015. Ext.A2 is a print out of 10% cash back on 6 Samsung Galaxy Smartphone models on all state Bank debit cards and SBI credit cards issued by the 2^nd opposite party.   Ext.A3 is the Tax/Vat Invoice dated on 12/05/2016 issued by the 1^st opposite party.  Ext.A4 is the notices issued to 1^st opposite party for insurance claim dated on 04/04/2016. Ext.A5 is the notices issued to 1^st opposite party for insurance claim dated on 09/06/2016.  Ext.A6 is the insurance offer at the time of the purchase of the mobile phone dated on 18/04/2016.  Ext.A7 is the insurance offer at the time of the purchase of the mobile phone dated on 18/06/2016.    The 2^nd opposite party’s learned counsel cross examined PW1.  The 1^st opposite party in this case appeared in person and filed a version on 07/10/2016.  This version was not accepted by this Forum since the 1^st opposite party was already set ex-party on 26/08/2016.  Aggrieved by this order again 1^st opposite party filed a petition on 14/11/2016 to set aside the ex-party order of the Forum.  Since this Forum has no right to set aside its ex-party order as per the provisions for consumer Protection Act 1986 the said petition (IA 119/16) was also dismissed.  Meanwhile 1^st opposite party filed revision petition No.84/16 before the Hon’ble Consumer Dispute Redressal Commission for set aside the order of this Forum in (IA.119/16) dated on 26/08/2016.  The Hon’ble Consumer Dispute Redressal Commission allowed the revision petition and set aside the Ex-party order of this Forum dated 26/08/2016.   Though the Ex-party order against the 1^st opposite party was set aside by the Hon’ble Consumer Dispute Redressal Commission the 1^st opposite party did not appear before this Forum or participate in the trial.  At last on 06/10/2017 this Forum issued notice to 1^st opposite party in the light of the Hon’ble Consumer Dispute Redressal Commission order in revision petition No.84/16. The 1^st opposite party appeared before this Forum in person and filed a statement to the effect that he is not willing to pay the cost awarded by the Hon’ble Consumer Dispute Redressal Commission to the complainant.  Therefore we are not in a position to implement the order of the Hon’ble Consumer Dispute Redressal Commission in revision petition No.84/16.  After the closure of evidence we heard the complainant and 2^nd opposite party’s Counsel.
6. Point No. 1:- The 2^nd opposite party in this case seriously contended that there is no cause of action for this case and no territorial jurisdiction to entertain this case, etc.  When we evaluate the evidence adduced by the parties in this case it is to see that the 2^nd opposite party failed to adduce any evidence which substantiate the above said contention.  As discussed earlier though the 1^st opposite party appeared before the Forum on issuance notice of this Forum - since he was not ready to comply the direction of the Hon’ble Consumer Dispute Redressal Commission in revision petition No. 84/16 the 1^st opposite party’s status remain as Ex-party in this case.  The complainant PW1 proved that he purchased a Samsung Mobile Phone bearing IMEI No.359932/06/181695/6 on 22/8/15 from the 1^st Opposite Party by paying an amount of Rs.20,500/-  As per Ext.A1 invoice dated 22/08/2015  the 2^nd opposite party did not oppose this fact at the time of the version or at the time of evidence.  It is also proved that the complainant he who purchased this product which is manufacturer by the 2^nd opposite party.  Therefore we come easily can to a conclusion that the complainant is a consumer of the 1^st and 2^nd opposite party and the 1^st and 2^nd opposite parties are service providers of the complainant.  Hence point No.1 found accordingly.

7. Point No. 2 &3:- For the sake of convince we would like to consider point No.1 & 2 together.The complainant he who is examined as PW1 and to prove the purchase of the goods and payment of consideration he produced and marked Ext.A1 retail invoice dated 22/08/2015 for an amount of Rs.20,500/-.Ext.A2 series shows that there is 10% cash back on 6 Samsung Galaxy Smart Phone models on all state Bank debit cards and SBI credit cards.In order to prove the contention of the payment of repairing charge Rs.6, 115/- dated 12/05/2016 - PW1 produced and marked Ext.A3 Tax/Vat invoice.Ext.A4 and A5 are two notices issued to 1^st opposite party demanding the repairing change of the Mobile Phone.It shows that PW1 demanded the repairing charge as insurance claim and not as a warranty claim.PW1 admitted that the Mobile got damaged so that he claims insurance for its damage.The question to be considered is whether the Mobile was having any insurance coverage at the time of purchase.PW1 clearly says that on the basis of the 10% cash back offer and one year insurance coverage, as a special offer, he purchased the mobile from the 1^st opposite party.When we peruse Ext.A2 serious we cannot see any insurance offer.But at the same time when we refer the reply notice of 1^st opposite party by Ext.A6 and A7 it shows that there is insurance offer at the time of the purchase of the mobile phone.It is stated in the reply notice Ext.A5 ‘as per the document made available by you, it has been mention that the device would be covered under a special insurance coverage for a period of one year from the date of invoice’.Any way an offer of a special insurance coverage for a period of one year from the date of invoice is admitted by 1^st opposite party.It is true that the 1^st opposite party stated that it was the duty of the consumer to register with a third party viz. Apps Daily to avail the insurance benefit.Though the 1^st opposite party has given a letter to this effect there is no other evidence to show that the burden of registration of the insurance is on the shoulders of the complainant.It is also true that when the learned counsels appearing for the 2nd opposite party cross examined PW1 he also asked certain question with regard to the registration of the insurance scheme in the case of the complainant which is as follows. ‘Insurance കിട്ടുന്നതിന് വേണ്ടി  Insurance co. ആയി ബന്ധപ്പെട്ട്  registration  നടത്തിയിരുന്നോ  (A)  ഞാൻ നേരിട്ട് ചെയ്തിട്ടില്ല  ഞാൻ 1^st OP സ്ഥാപനത്തിൽ  അതിന്  വേണ്ടുന്നതായ എല്ലാ രേഖകളും ഏല്പിച്ചു (Q) പരാതിയിൽ ഇക്കാര്യം കാണുന്നില്ലല്ലോ? (A) പരാതിയിൽ പറഞ്ഞിട്ടുണ്ട് Insurance Registration നെ സംബന്ധിച്ച് എനിക്ക് അറിയില്ലായിരുന്നു എന്ന് പരാതിയിൽ പറഞ്ഞിരിക്കുന്നത്  ശരിയാണ് .  ഞാൻ കൊടുത്ത ID Card copy തിരികെ വാങ്ങിയിട്ടില്ല.’ On the basis of the above deposition we can see that PW1 handed over the ID card to the 1^st opposite party and he was also an impression that the 1^st opposite party would do the needful for the insurance registration.  In Ext.A2 series   we can see that these offers are for excess sales of the mobile phone and for attaining credibility.  Therefore it is pertinent to see that the 1^st opposite party is ought to registered the insurance claim of the complainant at the time of the purchase day itself.  The 1^st opposite party’s reply notice also stated that these above said two offers were offered by the 2^nd opposite party.  When we refer Ext.A7 letter to the complainant by the 1^st opposite party dated 18^th June 2016 it is admitted that the 1^st opposite party is a retailor of the 2^nd opposite party manufacturer and the 1^st opposite party provided the insurance scheme form a third party viz. Apps Daily.  On the basis of the Ext.A5, A6 and A7 it is to be attributed that the 1^st opposite party is the retailor of the manufacturer – 2^nd opposite party.  Therefore we can find that if any failure happened for the registration of the insurance scheme the 1^st opposite party as the retailor and the 2nd opposite party as the offers of the scheme are jointly and severely libel to the complainant and also found that they committed deficiency in service against the complainant PW1.  Hence we find that the complaint is allowable and point No. 2 and 3 are also found in favour of the complainant.

                            8. In the result we pass the following orders.

            1. The 1^st and 2^nd opposite party are hereby directed to refund the repairing charge Rs.6, 116/-(Six Thousand One Hundred and sixteen only) to the complainant with 10% interest from the date of filling of this case i.e., 11/07/2016.

2.  The opposite party are also directed to pay a compensation of    Rs. 5,000/- (Five Thousand Only) and cost of Rs. 1,000/- (One Thousand Only) to the complainant with 10% interest from the receipt as the order onwards.

          Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 30th day of November, 2017.

                                                                                       (Sd/-)

P. Satheesh Chandran Nair,

Smt. Sheela Jacob (Member)           :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Philip.I,

Exhibits marked on the side of the complainant:

A1:   Retail Invoice dated on 22/08/2015.

A2:  10% cash back on 6 Samsung Galaxy Smartphone models on all state

        Bank debit cards and SBI credit cards.

A3:   Tax/Vat Invoice dated on 12/05/2016.

A4:   Notices issued to 1^st opposite party for insurance claim dated on

        04/04/2016.

A5:   Notices issued to 1^st opposite party for insurance claim dated on     

        09/06/2016.

A6:   Insurance offer at the time of the purchase of the mobile phone dated on

        18/04/2016.

A7:   Insurance offer at the time of the purchase of the mobile phone dated on

        18/06/2016.

Witness examined on the side of the opposite parties:Nil.

Exhibits marked on the side of the opposite parties:Nil.

Copy to:- (1)  Philip.I,Cheeramattam Eettickal,Punnavely.P.O.                               

                    (2)  The Chief Executive Officer/Managing Director,

Sumsung India Electronics Private Limited, 2^nd, 3^rd & 4^th        Floor,       Tower ‘C’, Vipul Tech Squre, Old Golf Course Road, Sector – 43, Gurgaon, Delhi – 122002.

(3) M/s. TTL Trading Pvt.Ltd., 27/306, Maliyil Buldings,

                               Muthoor.P.O., Thiruvalla-689 107.

                         (4)  The Stock File.