Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 147
Instituted on : 26.03.2019
Decided on : 19.09.2022
Sandeep age-28 years S/o Shri Kuwar R/o H.No. 903E/34 near Shri Kant School Vijay Nagar, Distt. Rohtak.
.......................Complainant.
Vs.
- One Assist Consumer Solution Pvt. Ltd. 707-709, Acme Plaza, Andheri-Kurla Road, Andheri(E), Mumbai-400059
- HDFC Bank IFB-CD Rohtak.
- Reliance Retail Limited Reliance Digital Property no. 1015A & 1018, Ward No. 22, minor party hall near mansarover park, Delhi Road Rohtak-124001
- Samsung India Electronics Pvt. Ltd. 20th to 24th Floor, two horizon centre, golf course road, Sector-43, DLF-V, two horizon centre, golf course road, sector-43,DLF-V, Gurgoan, Haryana 122202.
…………...Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh. Sandeep Singh, Advocate for complainant.
Sh. Deepak Jain, Advocate for Opposite party No. 1.
Sh. Rajesh Sharma, Advocate for Opposite party no. 2.
Sh. K.K.Luthra, Advocate for Opposite party no. 3.
Sh. Kunal Juneja, Advocate for Opposite party no. 4.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per complainant are that complainant had availed bank loan from opposite party no. 2 for a sum of Rs.26681.50/- and bought a mobile phone S7 edge 128 GB Samsung IMEI no 355241080288674 on 03.02.2019 from opposite party no. 3. At the time of availing loan the Bank officials themselves got insured the mobile phone and charged the premium from the complainant and the phone got insured by opposite party no. 1 vide lead no. LEAD1073284 dated 03.02.2019 having sum insured of Rs.25,583/- and having premium of Rs.2299/-. It is submitted that the bank official did not supply any insurance documents to the complainant even after his repeated requests. It has been further averred that on 08.03.2019 , the mobile in question fell down and got damaged. Complainant informed the bank officials in this regard and he also registered the online complaint with the opposite party no. 1. The complainant received a complaint no. 4043492 and they told the complainant that you will upload some documents in their online company site from his registered phone number. Complainant uploaded all the documents as desired by them and also completed all the formalities and applied for the insurance claim of the mobile phone. But the officials of the opposite party no. 1 have not settled the claim of the complainant and gave a message on phone number of the complainant that your claim request has been closed. They also gave a message on complainant’s mail account that “You are not the owner of the device and claim is not admissible as the activation date of the handset is prior to the Invoice date/handset user is not an immediate family member.” The complainant repeatedly visiting the office of the opposite parties for settlement of his claim but opposite parties did not pay any heed. As such, there is deficiency in service on the part of opposite parties. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay the insurance claim amount Rs.26,681.50/- alongwith interest at the rate of 18% per annum, Rs.50,000/- as compensation and Rs.11,000/- as litigation charges to the complainant as explained in relief clause.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No. 1 in its reply has submitted that the device of the complainant was insured with New India Assurance Co. and the liability to pay the claim amount is upon them who has not been made a party to the present complaint. It is further submitted that the answering opposite party is only the Group Manager and not the Insurance Company. The answering opposite party was only required to facilitate the registering and processing of the claim of the complainant which was duly complied by the answering opposite party. The claim was rejected as the mobile activation date was prior to the invoice date of the handset. The plan was activated on 13.06.2018 and the invoice states that the date of purchase as 03.02.2019. Further, the mobile was not used by the complainant and the same was used by his cousin. On 08.03.2019, the complainant raised his complaint and on 10.03.2019, the verification team verified the claim and rejected the case on the ground “Claim is not admissible as the activation date of the handset is prior to the invoice date and the handset used is not by an immediate family member. All the other contents of the complaint were stated to be wrong and denied by the answering opposite party and prayed for dismissal of complaint.
3. Opposite party no. 2 in its reply has denied that the bank official on its own got insured the mobile and charged the premium. It is further submitted that the insurance premium has been paid to the insurance company by the customer and the insurance policy was obtained by the borrower on its own. Hence there is no liability of the answering opposite party. All the other contents of the complaint were stated to be wrong and denied and answering opposite party prayed for dismissal of complaint. Opposite party no. 3 in its reply has submitted that complainant never visited their store. It is further submitted that the complainant has himself stated that he has been dealing directly with the opposite party no. 1. All the other contents of the complaint were stated to be wrong and denied by the answering opposite party and prayed for dismissal of complaint.
4. Opposite party no. 4 in its reply has submitted that the unit of the complainant has got damaged due to mishandling on the part of complainant and it is the insurance company who insured the alleged phone and as per standard warranty conditions of warranty policy, the unit that has got damaged/broken, cannot be considered under warranty and the warranty becomes void in the case of damage and repair of unit shall be on paid basis. It is pertinent to mention here that answering opposite party has a system to lodge online complaint with the system of answering opposite party for each and every I.M.E.I./Sr. No. but in the present complaint, as per limited details provided, no complaint has been found registered with the answering opposite party in regard to mobile phone of complainant. It is quite evident from the version of complainant that the unit has damaged due to falling on road by accident. It is further submitted that answering opposite party provides one year warranty on the unit, warranty means in case of any problem with the unit, the unit will be repaired or its parts will be replaced as per warranty policy. All the other contents of the complaint were stated to be wrong and denied by the answering opposite party and prayed for dismissal of complaint.
5. Ld. Counsel for the complainant in his evidence has tendered his affidavit Ex.C1/A, documents Ex.C1 to Ex.C5 and closed his evidence on dated 18.12.2019. Learned counsel for opposite party No. 1 has tendered affidavit Ex. RW1/A, documents Ex. R1 and closed his evidence on dated 21.10.2021. Learned counsel for opposite party No. 2 has tendered affidavit Ex. RW2/A and closed his evidence on dated 26.11.2020. Learned counsel for opposite party No. 3 has tendered affidavit Ex. RW3/A and closed his evidence on dated 26.11.2020. Learned counsel for opposite party No. 4 has tendered affidavit Ex. RW1/A, documents Ex. R1 and closed his evidence on dated 28.01.2021.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case complainant had purchased a mobile set on 03.02.2019 from opposite party no. 3 after availing loan from the Bank and the bank itself insured the mobile phone of the complainant with the opposite party No.1 and charged the premium of Rs.2299/- from the complainant. It is also observed that on 08.03.2019, the mobile in question fell down and got damaged. Complainant filed a claim with the opposite parties but the opposite party no. 4 has not passed the claim of the complainant on the ground that the unit of the complainant has got damaged due to mishandling on part of complainant and as such the unit cannot be considered under warranty and the warranty becomes void in the case of damage and repair of unit shall be on paid basis.
8. In the present case the mobile in question was not having any manufacturing defect. As such the manufacturer i.e opposite party No.4 has no liability for the same. The mobile in question was damaged due to felling and as such the claim of the complainant shall be paid by the Insurance company i.e. One assist but the opposite party No.1 vide its email Ex.C4 has closed the claim on the ground that “Claim is not admissible as the activation date of the handset is prior to the Invoice date/handset user is not an immediate family member”. But to prove the same opposite party N.1 has not placed on record any document. On the other hand as per bill Ex.C1 and insurance plan Ex.C2, the date of invoice is 03.02.2019. It is also observed that in reply to the complaint, opposite party No.1 in para no.3 of preliminary objections has submitted 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 complaint. Hence the liability to pay the claim was of New India Assurance Company and in the absence of New India Assurance the present complaint cannot be decided. The same contention has been made in the affidavit Ex.RW1/A but surprisingly the number of the policy and cover note details have not been provided by the opposite party no.1 either in the written statement or in the affidavit. Without providing the policy particulars and insurance cover note details, New India insurance company cannot be impleaded as necessary party. Hence there is deficiency in service on the part of opposite party No.1 and it is only the opposite party No.1 who will be liable to compensate the complainant.
9. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.1 to pay the insured amount of Rs.25583/-(Rupees twenty five thousand five hundred and eighty three only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 26.03.2019 till its realisation and shall also pay a sum of Rs.6000/-(Rupees six thousand only) as compensation on account of deficiency in service as well as litigation expenses to the complainant within one month from the date of decision.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
19.09.2022.
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Nagender Singh Kadian, President
………………………………..
Tripti Pannu, Member.
………………………………..
Vijender Singh, Member.
