BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 1st March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.98/2015
(Admitted on 13.3.2015)
Mr. Shibin R. Nambiar,
S/o M.V. Rajan Nambiar,
Hindu, Aged 20 years,
Residing at himasree,
Post Knochady,
Mangaluru 575008.
……… Complainant
(Advocate for Complainant by Sri RPS)
VERSUS
1. Gaurav Electronics,
Saibeen compelx,
Lalbhagh, Manglauru.
Rep. by its signatory,
Sri.Sandeep Hegde,
2. The new India Assurance co. Ltd,
Bommasandra Branch,
KIADB complex,
1st Floor, Hosur Main Road,
Bangalore 562158.
…. Opposite Parties
(Advocate for Opposite Party No.1 Sri. YBPR)
(Advocate for Opposite Party No.2 Sri. AKK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainant purchased the Nexus 5 mobile hand set from Opposite Party No.1 on 30.4.2014 for Rs. 32,600/ to which Opposite Party No.1 represented there is insurance coverage for the said extra amount the and accordingly complainant by paying Rs. 999/ by Opposite Party No.1 obtained insurance policy from Opposite Party No.1 on 24.9.2014 at about 6 pm. The mobile was stolen from his pocket traveling in city bus from KPT to Yeyyadi of Mangalore. Immediately on same lodge the missing and theft complainant Station House Officer, Mangalore his Kadri Hills, and locked the Sim on 25.9.2014. Complainant approached Opposite Party No.2 and insurance claim Division U.B. Insurance Associates damage. But by intimation dated 25.11.2014 Opposite Party No.2 has not honoured the claim. Hence the complaint for the reliefs claimed.
II. Opposite Party No.1 in the written version admits the relay of the mobile complainant of additional insurance covered obtained by the complaint in Opposite Party No.1 from the company “ Apps Daily” by has claim Opposite Party is a dealer with Apps which as type of company limited.
2. Opposite Party No.2 contents insurance of the policy of mediclaim to insurance policy mention it company at admits the policy is subject to the terms and condition and exclusion clauses a liability of Opposite Party shall be only to the extent of sum insured under the policy. Immediately upon receipt of the claim from the complainant, Opposite Party sought all the relevant documents from the complainant substantiating the claim of the loss the claim was provide the complaint was filed by complainant for missing of his mobile hand set, which is excluded under the policy issued. Hence a reputed claim, hence dismissal of complaint.
3. In support of the above complaint the complainant Mr. Shibin R. Nambiar, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite party Sheshappa Naik. M. (RW1) Administrative Officer, Mr. B. Sadeep Hegde, (RW2) Gaurav Electronics, of opposite party also filed affidavit evidence and answered the interrogatories served on them.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows:
Point No. (i) : Affirmative
Point No. (ii) : Negative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): The mobile hand set purchased by complainant from Opposite Party No.1 was issued with a policy of coverage issued by Opposite Party no.1 as agent of Opposite Party No.2 is undisputed. The complainant claims the mobile hand set was stolen by the journey in city bus but Opposite Party claims there was no complaint of theft of the mobile, but only of missing as policy does not cover missing of hand set as reported by the complainant. Hence there is dispute between the parties, hence we answer point No.1 in the affirmative.
POINTS No.(ii): The documents of relevance are Ex.C3 the copy of the complaint and C3 (a) acknowledgment issued by police. Ex.C3 dated 24.9.2014 the complainant mentions while traveling from KPT to Konchadi in the private service bus of rout 19 his mobile 4G Nexus 5, IMEI was missing not sure whether it is missing or stolen. At Ex.C3 (a) acknowledgment given by the police about the complaint they mention the reason of visit of complainant to the police station as missing of mobile. Thus as claimed defence there is no theft of mobile, but of missing of mobile hand set. On through the case file the documents the Deed of Indemnity and Subrogation exbited by Opposite Party No.2, in favour of complainant there is no other document much the policy issued by Opposite Party No.1 in favour complainant. As seen from the copy of the policy produced in case by Opposite Party in exclusion clauses mentions the following amongst others
Due to mysterious disappearance, forgotten or misplaced or lost or if handset is left unattended at any point of time
Thus from the complaint lodged by the complainant. If is clear even complainant did not state it was stolen but mention missing or stolen. In fact the Ex.C3 (a) makes it clear that the mobile was missing. As the loss of mobile of complainant comes within the exclusion clause of the policy repudiation of complainant’s claim in our view is justified. In view of this there is no deficiency in service on the part of Opposite Parties. Hence we answer point No. 2 in the Negative.
POINTS No. (iii): Wherefore the following order
ORDER
The Complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 5 dictated by President to the Stenographer typed by him, revised and pronounced in the open court on this the 1st March 2017)
MEMBER PRESIDENT
(LAVANYA M RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Shibin R. Nambiar,
Documents marked on behalf of the Complainant:
Ex.C1: 30.4.2014: Copy of the Bill for charge of mobile set.
Ex.C2: 30.4.2014: Copy of the Bill for payment of Insurance Premium.
Ex.C3: 24.9.2014: Copy of the Police complaint with acknowledgment.
Ex.C4: 25.9.2014: Copy of the Deed of Indemnity and Subrogation issued by complainant to Opposite Party No.2.
Ex.C5: 25.9.2014: copy of the mobile handset Insurance claim form.
Ex.C6: 23.12.2014: O/c of the Lawyers notice.
Witnesses examined on behalf of the Opposite Parties:
RW1: Sheshappa Naik. M, Administrative Officer.
RW2: Mr. B. Sadeep Hegde, Gaurav Electronics
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 1.3.2017 PRESIDENT
