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Vaishnavi .........RESPONDENT
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TABLE OF CONTENTS
LIST OF ABBREVIATIONS...........................................................3
INDEX OF AUTHORITIES.............................................................3
STATEMENT OF JURISDICTION................................................5
STATEMENT OF FACTS................................................................5
ISSUES RAISED................................................................................7
SUMMARY OF ARGUMENTS.......................................................9
ARGUMENTS ADVANCED............................................................11
PRAYER .....................................................................................19
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LIST OF ABBREVIATIONS
Edn. Edition
SC Supreme Court
v. Versus
INDEX OF AUTHORITIES
CASES
• Manoj Saraf vs. Haryana Urban Development Authority &Anr, (2012) 4 CPJ 672
(NC).
• M/s Hemrajani Tubes (Pvt.) Ltd. vs The National Small Industries Corpn. Ltd. &Ors.,
III (1992) CPJ 14 (NC).
• Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United Insurance Co. Ltd.&Anr.,(2010)
10 SCC 567.
BOOKS
• Dr. R.K. Bangia, Law of Tort, Allahabad Law Agency, Haryana, 23rdedn., 2014.
• Dr.R.K. Bangia, India Contract Act, Allahabad Law Agency, Haryana, 14thedn.,2009.
• Dr. R.K. Bangia, A Handbook of Consumer Protection Laws and Procedure,
Allahabad Law Agency, Haryana, 15thedn., 2004.
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STATUTES
LEGAL DATABASES
• Live Law
• Indian Kanoon
• SCC Online
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STATEMENT OF JURIDICTION
The Appellants have approached the Hon’ble National Commission of Indiland under
Section-19 of the Consumer Protection Act, 1986. The Section-19 of the Consumer
Protection Act, 1986 reads as hereunder:
“19. Appeals
Any person aggrieved by an order made by the State Commission in exercise of its powers
conferred by sub-clause (1) of clause (a) of section 17 may prefer an appeal against such
order to the National Commission within a period of thirty days from the date of order in
such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after the expiry of the said
period of thirty days if it is satisfied that there was sufficient cause for not filing it within that
period.”1
1
Section 19 of Consumer Protection Act, 1986 (68 of 1986).
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STATEMENT OF FACTS
For the sake of brevity and convenience of the Hon’bleCommissionthe facts of the present
case are
2.Vaishnavi used the phone for a period of 5 months and 22 days. Thereafter she realised that
the guarantee of the phone is going to lapse and in order to get an extended warranty she
made a false to the NG Service Providers that the camera of her phone is not functioning
properly. However, after investigating, the service providers found the phone in workable
condition, thereafter, rejecting her claim.
3. On 8th April,2016 (Friday) at 5:00 p.m., Vaishnavi met with an accident. She got hit by a
car driven by Nanda. In the collision she got injured and also her tab which was in her
handbag was damaged and its screen got cracked.
4. On 11th April,2016 (Monday) Vaishnavi approached NG Service Provider, SCO 534, 1st
floor, Sector-29, Chandiland with all the receipts and required documents and she pressed
upon replacing her phone as per the insurance policy. However, NG Service Provider refused
to entertain her claim since the incident did not comply with terms and conditions of
insurance policy.
5. Being aggrieved with the conduct of the NG Service Provider she contacted Bhatia
Insurance Company and the company accepted her claim subject to the terms of the insurance
which were already signed by her. When she came to know that she will have to pay the 50%
of the charges incurred to get the phone repaired. Then she went to Kamra Electronics to
confirm the policy terms and she was informed that she herself signed the terms and
conditions of the insurance. Then she filed a suit in the Hon’ble State Commission of
Chandiland against Kamra Electronics, Bhatia Insurance Company and NG Service Provider.
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6. The State Commission of Chandiland held that the Bhatia Insurance Company was
deficient in rendering proper services by not honouring its policy terms. The other two
opposite parties (Kamra Electronics and NG Service Provider) were proceeded Ex-parte. The
State Commission ordered the opposite parties to get the handset repaired forthwith without
asking for any contribution from Vaishnavi and also ordered to pay rupees 80,000 each as
compensation to her for the unfair trade practices and harassment caused to her plus rupees
8,000 each as litigation expenses.
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ISSUES RAISED
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SUMMARY OF ARGUMENTS
It is humbly submitted before the Hon’ble Commission that Vaishnavi was not aggrieved by
the deficiency in services.
As per facts of the case it is nowhere stated that while situating the contract of insurance the
Bhatia Insurance Company Appellant/OP -2 was deficient in conveying all the terms and
conditions of the Insurance Policy to the Respondent instead it was Vaishnavi who under
excitement, hurriedly signed the terms and conditions of the policy cover.
The NG service providers rejected the claim of the respondent on the grounds mentioned in
the rules of claim procedure of the Insurance Policy and duly within the framework of the
Policy. They refused the claim on the ground that 48 hours had passed since the event of
accident has taken place. As mentioned in the Claim Procedure Point 2 – In Case of
Accidental Damage of the device, intimation has to be made within 48 hours of the
occurrence of the event. Whereas in this case the intimation by the Respondent was made
after 72 hours of the incident. In case of insurance claim strict adherence to the insurance
terms does not amount to deficiency in services.
So, it is humbly submitted before the Hon’ble Commission that Vaishnavi was not aggrieved
by deficiency in services.
It is humbly submitted before the Hon’ble Commission that the services provided by the
Kamra Electronics cannot be termed as Unfair Trade Practices within the ambit of the
Consumer Protection Act, 1986.
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As the Kamra Electronics is one of the most reputed retail store in Chandiland and they
performed all its duties and obligations with due care and responsibility and had not indulged
into any of the Unfair Trade Practices[Section-2(1)(r)]. So, it is humbly submitted before the
Hon’ble Commission that the services provided by the Kamra Electronics cannot be termed
as Unfair Trade Practices within the ambit of the Consumer Protection Act, 1986.
It is humbly submitted before the Hon’ble Commission that the NG Service Provider cannot
be made a party to the case.
Accordingly the Appellant No. 3 has been unnecessarily dragged in the present controversy
and the appeal qua Appellant No. 3 is liable to be accepted on the ground of Misjoinder of
Party.
It is humbly submitted before the Hon’ble Commission that the NG Service Provider cannot
be a party to the case as it is not at any fault.
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ARGUEMNENTS ADVANCED
It is humbly submitted before the Hon’ble Commission that Vaishnavi (Respondent) was
not aggrieved by any deficiency in services. If we examine the facts of the case properly
we will come across the fact that:
It is nowhere stated that while situating the contract of insurance the Bhatia Insurance
Company Appellant/OP -2 was deficient in conveying all the terms and conditions of the
Insurance Policy to the Respondent instead it was Vaishnavi who under excitement,
hurriedly signed the terms and conditions of the policy cover. Moreover, the Bhatia
Insurance Company duly performed his duty by conveying all the terms and conditions
thoroughly to the respondent but she was seen inattentive and missed out the important
features of the insurance policy.
After going through the Claim Procedure as mentioned in the policy, Point 2 and 3
states that the incident has to be reported to the Insurer in case of Accidental Damage
within 48 hours of the occurrence of the event Strictly whereas in this case it is seen that
the incident happened on 8th day of April 2016 (Friday) and the same was informed to the
Bhatia Insurance Company on 11th day of April 2016 (Monday) after the delay time of
approximately 24 hours (to the total 48 hours). So, the happening of the incident was
informed after 72 hours of occurrence of the event, which is Subject to Cancellation of
Claim as per Point 2 of the Claim Procedure of the Insurance Policy – “Any fall out in
making the requisite intimation could result in invalidation of the claim.”
The happening of the event could also have been intimated by the way of an e-mail which
set-asides the point of raising an argument over an absurd point of weekend holidays
(Saturday – Sunday). Which again proves that nowhere the Respondent was aggrieved by
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the conduct of any of the Appellants instead the Bhatia Insurance Company and other
appellants were aggrieved by the careless conduct of the Respondent.
So, it is humbly submitted before the Hon’ble Court that the Compensation given to
Respondent via judgment of the State Commission on Chandiland be set-aside and the
Court is requested to Pass any other order that it deems fit in the interest of justice, equity
and good conscience.
It is important to note that the Respondent after using the O-Tab for a period of 5 months
and 22 days, in order to get an extended warranty made a false claim and even went to NG
service providers (Appellant No. 3) for getting the same. She falsely claimed that the
camera of the Tab is not working properly but after investigating, Appellant No. 3 found
the Tab to be in working condition and rejected the claim. This proves that Vaishanvi had
Mala fide intentions towards Appellant No. 3 as well as other appellants. It is not difficult
to believe that the Respondent had Mala fide intentions, which also gives many more
topics of discussion and proves the cunning nature of Vaishnavi. This give rise to a
question of doubt that it may have happened that the O-Tab was not damaged in the
course of accident and the same was intentionally done by the respondent to get the
false claim.
Therefore, it is requested to the commission that the respondent be put to strict proof of
her averment that the product got damaged in an accident.
In the present case the Hon’ble State Commission of Chandiland in Paragraph no.5 of the
judgement has interpreted the term of the Insurance policy by substituting the word total
damage with partial damage. In the case of Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs.
United Insurance Co. Ltd.&Anr., 2 it was held that it needs little emphasis that in
construing the terms of a contract of insurance important, and it is not open for the court to
add, delete or substitute any words.
All the three appellants – Kamra Electronics, Bhatia Insurance Company and NG Service
Providers are well reputed and working very efficiently in favour of their costumers since
a long period of time.
2
(2010) 10 SCC 567.
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Therefore, It is humbly submitted before the Hon’ble court that Vaishnavi was not
aggrieved by the Deficiency in Services by any of the appellants but if she had faced any
loss then the same is due to her own negligence, conduct and omissions.
It is humbly submitted before the Hon’ble Commission that the services rendered by the
Kamra Electronics cannot be termed as Unfair Trade Practices within the ambit of the
Consumer Protection Act, 1986.Section-2(1)(r) of the Consumer Protection Act, 1986
defines “Unfair Trade Practices”.3 Unfair Trade Practices includes:
The practice of making any false statement, whether oral or written or by verbal
representation which:
(i) falsely suggests that the goods are of particular standard, quality, grade, composition, style
or model.
(ii) falsely suggests that the services are of particular standard or quality or grade;
(iii) falsely suggest any rebuilt, second hand, renovated or reconditioned or old goods as new
goods;
(iv) represents that the goods or services have sponsorship, approval, performance,
characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which
such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for or usefulness of any
goods or services;
3
Section 2(1)(r) of Consumer Protection Act, 1986 (68 of 1986).
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(vii) gives a warranty or guarantee as to the durability, performance or efficacy of goods
which is not based upon adequate or proper test; the burden of proof will lie upon him to
show that the goods were adequately and properly tested;
(viii) makes to the public a representation in a form that looks like a guarantee or warranty, or
a promise to replace, maintain or repair the goods until they achieve a specified result, and
the representation is materially misleading or there is no reasonable prospect that the
guarantee, etc. contained in the representation shall be carried out;
(ix) materially misleads the public about the prices at which such goods or services are
available in the market;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.
In the present case Kamra Electronics is one of the most reputed retail store in Chandiland.
They performed all its duties and obligations with due care and responsibility and had not
indulged into any of the Unfair Trade Practices. So, it is humbly submitted before the
Hon’ble Commission that the services provided by the Kamra Electronics cannot be termed
as Unfair Trade Practices within the ambit of the Consumer Protection Act, 1986.
It is humbly submitted before the Hon’ble Commission that the NG Service Provider cannot
be made a party to the case. In the present case NG Service Provider have not indulged into
any Unfair Trade Practices nor they have done any deficiency in the services provided by
them. The NG Service Provider is not at fault so they cannot be a party to the case.
According to Section 2 (d)of the Consumer Protection Act, 1986, the term Consumer
means any person who:
“(i) buys any goods for a consideration which has been paid or promised or partly paid and
partly promised, or under any system of deferred payment and includes any user of such
goods other than the person who buys such goods for consideration paid or promised or
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partly paid or partly promised, or under any system of deferred payment when such use is
made with the approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment and includes any
beneficiary of such services other than the person who 'hires or avails of the services for
consideration paid or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of the first mentioned
person but does not include a person who avails of such services for any commercial
purposes;
Explanation — For the purposes of this clause, “commercial purpose” does not include use
by a person of goods bought and used by him and services availed by him exclusively for the
purposes of earning his livelihood by means of self-employment;”4
According to the factual position, When the Respondent went to NG service providers to get
the damaged O-Tab replaced, they only refused to replace the same keeping in view the terms
and conditions of the insurance policy cover but did not provided any Service or Good to
Vaishnavi. Hence it is a clear established fact that NG Service Providers neither provided
any good nor any service to the Respondent. Therefore, the relationship of Vaishnavi
(Respondent) as Consumer of NG Service Providers was never in existence. In the matter of
M/s Hemrajani Tubes (Pvt.) Ltd. vs. The National Small Industries Corpn. Ltd. &Ors.,5
the learned National Consumer Disputes Redressal Commission, New Delhi has held that the
relationship that existed between the petitioner and the National Small Industries Corpn. Ltd.,
New Delhi did not involve any arrangements of hiring of service for consideration by the
petitioner so as to entitle the petitioner to claim the status of a Consumer.
4
Section 2(1)(d) of Consumer Protection Act, 1986 (68 of 1986).
5
III (1992) CPJ 14 (NC).
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• Misjoinder of Party
In view of the provisions of Order 1 Rule 10 (2) of Code of Civil Procedure the name of NG
Service Provider ought to have been strike out being Misjoinder as OP No. 3. The NG
Service Providers has been unnecessarily dragged in the present controversy and the appeal
qua Appellant No. 3 is liable to be accepted on the ground of Misjoinder of Party.
The claim of the respondent was also liable to be rejected on the ground that she has not
approached the learned State Commission with clean hands and has suppressed and
misrepresented the material facts of the controversy. That the respondent has averred in her
complaint that she left the damaged O-Tab and a photocopy of her insurance policy with
Appellant 3 (NG Service Provider) whereas in reality the Respondent approached the
Appellant for replacing her phone, where Appellant No. 3 refused to entertain her claim since
the incident did not comply with the terms and conditions of the insurance policy and
accordingly didn’t accepted the damaged O-Tab and returned the same to the responded then
and there.
Interestingly, it is the pleaded case of the Respondent that she approached the NG Service
Provider for the replacement of her O-Tab whereas the learned commission has gone wrong
and beyond the pleading of the responded while observing that the respondent left her O-Tab
with the Appellant No. 3 to get the O-Tab repaired.
The commission has further gone against the records and facts of the case while observing
that instead of getting the phone repaired the Appellants/Opposite Parties dumped the phone
at the resident of the complainant whereas it is established that none of the
Appellants/Opposite Parties retained the damaged O-Tab with them rather the same was
returned to the respondent then and there.
As many facts are misrepresented and suppressed by the Respondent and the same are even
misread and misconceived by the Learned State Commission, it is humbly requested to the
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Commission to revoke and set aside the impugned order of the State Commission. In the
decided revision petition –
Manoj Saraf vs. Haryana Urban Development Authority &Anr.,6 The Hon’ble National
Consumer Disputes Redressal Commission dismissed the petition against the orders of the
State Commission. In this case the complainant/petitioner approached the District Forum
where he wrongfully after paying some sought of consideration got the judgment in his favor.
When the Respondent/Opposite Party went to the State Commission challenging the orders of
the district forum, the petitioner tried to misrepresent, conceal and suppress the factual
position in order to secure the impugned order. But the State Commission revoked and set
aside the order and accepted the appeal and passed new verdict in proper and correct order
and in accordance to the true factual position. When the Petitioner filed the revision petition
in the Hon’ble National Commission, the court also dismissed the petition and stated that the
State Commission has done well in passing a just and rational order, which needs absolutely
to interference. Keeping in view the same case law, the Hon’ble Commission shall accept this
Appeal and strict actions must be taken against the Respondent for Misrepresenting,
Concealing and Suppressing the true factual position.
The NG service providers rejected the claim of the respondent on the grounds mentioned in
claim procedure of the Insurance Policy and duly within the framework of the Policy. They
refused the claim on the ground that 48 hours had passed since the event of accident has
taken place. As mentioned in the Claim Procedure Point 2 – In Case of Accidental Damage of
the device, intimation has to be made within 48 hours of the occurrence of the event. Whereas
in this case the intimation by the Respondent was made after approximately 72 hours of the
incident. The accident occurred on 8th of April 2016 at around 5 PM and the same was told on
11th of April 2016 – after approximately 65-70 hours of the occurrence of the accident. As
this aforementioned factual position did not comply with the Terms and Conditions of the
Insurance Policy, the NG service providers refused to entertain her claim and conveyed the
same to her.
6
2012 SCC OnLine NCDRC 759 : [2012] NCDRC 759 : (2012) 4 CPJ 672 (NC).
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Therefore, nowhere the NG service providers infringed the Rights of the Respondent rather
went with the clauses of the terms and conditions of the insurance policy only. So, they
cannot be made party to the case.
In view of the aforestated factual and legal position it is respectfully prayed that the
instant appeal be accepted and the impugned order/judgment passed by the learned
state commission be set aside.
It is humbly submitted before the Hon’ble Commission that the NG Service Provider cannot
be a party to the case as it is not at any fault.
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PRAYER
In the light of the issues raised, arguments advanced, authorities citied, may this Hon’ble
Commission be pleased to:
1. Hold that the order of the Hon’ble State Commission should be set aside.
2. Hold that the order of the State Commission to give compensation to the respondent is
not correct.
3. Hold that the Appellants are not liable to pay compensation to the respondent as they
have performed all their duties with due care and responsibility.
4. Hold that the appellants are not liable to repair the handset as the rules of claim
procedure of the Insurance policy was not followed by the respondent.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Appellant as in duty bound, shall humbly pray.
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