BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOPPAL

           CONSUMER COMPLAINT NO. 61/2015

PRESENT

Smt. Akatha.H.D. M.A. L.L.M.                            .. President

Smt. Sujatha Akkasali, B.A.L.L.B.                       .. Lady Member

Sri. Raviraj Kulakarni, B.A. L.L.B                       .. Member

Dated this 06^th day of June, 2016

V/s

Per:  Akatha.H.D.  

               JUDGMENT

            This is the complaint filed by the complainant u/s 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service and unfair trade practice in not settling the mobile device amount of Rs.21,279/-. Hence prays for relief to seek the worth of the device of Rs.21,279/- along with Rs.50,000/- towards damages, mental agony and for causing inconvenience to the complainant profession and Rs.20,000/- towards deficiency of service and unfair trade practice and Rs.2,000/- cost of issue of notice and Rs.5,000/- towards cost of their complaint.

             Brief averments of the Complaint are as under;

            2.  That the complainant had purchased Sony Xperia – C 2305 from respondent No.1 for Rs.20,279/- vide invoice No.SI/KOP/166 dated: 17.01.2014 and IMEA number of the said device is 358095051927133. At the time of purchasing the said device, the complainant had got insured the same with respondent No.2 through the respondent No.1 vide insurance policy No.421100/48/2014/160. The complainant alleged that in this regard the respondent No.1 has collected the Insurance amount from the complainant and remitted to the respondent No.2 and the same is included in the invoice.

            3.         That the complainant further alleged that the complainant was using the said device with his SIM Card bearing Contact No.9844394060 from the date of its purchase. That on 11.05.2014 at about 10.00 AM, the complainant while getting into the bus at Koppal, KSRTC Bus Stand to travel for Hubli there was huge crowd in the bus stand. At that time, an unknown person has stolen the above mentioned mobile device from complainant’s pocket. After few minutes by observing absence of the said device, the complainant called to his above said number with another number, but it was switched off, then the complainant came to know that his mobile phone was stolen. Inspite of sufficient efforts made by him the same could not be traced.

            4.             That the complainant further alleged that immediately after the said incident, the complainant has duly intimated to respondent No.1 about the said facts. For which the respondent No.1 suggested the complainant to bring the complaint and FIR regarding theft of the device. Accordingly, the complainant filed the complaint before the Town Police Station, but they refused to register the case having left with no other option, the complainant had filed private complaint before the JMFC Court, Koppal on 15.05.2014 in P.C. No.133/2014 and got referred the matter for investigation u/s 156 (3) of Cr. P.C. Inspite of referring the case for investigation by the Hon’ble Court, the Town Police have delayed the registration of the Crime and finally registered the case on 07.06.2015 and sent Fir to the Court. In the mean time, the complainant submitted the required claim forms along with necessary enclosures to the respondent for claiming Insurance amount on 16.05.2014 as the said mobile device is insured with respondent No.2 through respondent No.1. After receipt of the said claim form, the respondent No.1 assured that the same will be sent to respondent No.2 and advised the complainant to wait for few days for its claim. Further, immediately after registration of the case, the certified copy of FIR and complaint were also submitted to the respondent No.1 for which the respondent No.1 assured that the claim form will be processed and claim amount will be given at the earliest and advised the complainant to wait for some time.

            5.         That the complainant further alleged that the complainant has waited for few months and approached to the respondent No.1 for the claim amount. But, the respondent No.1 is postponing the period of claim on one pretext on the other. Even till this day none of the respondent neither paid the claim amount nor provided new device to the complainant. The complainant alleged that such act of respondents clearly amounts to deficiency of service and also amounts to unfair trade practice by which he has sustained loss of Rs.21,279/- worth of device and damages of Rs.50,000/- towards mental agony, expenses and for causing inconvenience to the complainant’s profession and Rs.20,000/- towards deficiency of service and unfair trade practice and Rs.2,000/- towards cost of the notice and Rs.5,000/- towards cost of the complaint.    

            6.         That the complainant further alleged that being fed up with such attitude of the respondent, the complainant has got issued legal notice to the respondents through his counsel on 10.12.2014 through RPAD calling upon then to pay Rs.21,279/- to the complainant and cost of the device and for the loss caused due to deficiency of service and unfair trade practice. The said notice was duly served on the respondents. For which, the OP No.1 has given false and evasive reply to the said notice. The complainant further alleged that the respondent No.2 even this day has neither gave reply to the said notice, nor paid the amount. Hence filed this complaint praying towards worth of device of Rs.21,279/- along with Rs.50,000/- for damages towards inconvenience to his profession and Rs.20,000/- towards compensation for deficiency of service and unfair trade practice and Rs.2,000/- towards cost of issue of notice and Rs.5,000/- towards cost of this complaint as prayed above.

            7.         The Forum after admitting the complaint, a notice was issued to the OP’s and the said notice is served upon the OP. The OP No.1 has failed to appear before the Forum on the date of appearance and hence he was placed as Exparte and the OP No.2 appeared before the Forum through this counsel and filed Vakalatnama and main objections/Written Version to the main petition.

            8.         The Objections of the Opponent No.2 are as under:

            That the OP No.2 submits that all the materials allegation made in the above petition are false and the petition is not maintainable either on facts or in law against this respondent. Hence, the petition is liable to be dismissed in limini with cost against this respondent.

            9.         That the OP No.2 further submits that this respondent does not admit and denies all the allegations made in the petition and the complainant is put to strict proof of all the allegations except those which are specifically admitted here under:

            10.       That the OP No.2 further submits that it is true to say that, the SONY EXPERIA –C 2305 MOBILE SET involved in the accident is covered under the Insurance from this respondent No.2. The Oriental Insurance Company, vides its Policy No.421100/48/2014/160. But the same is covered subject to various terms and conditions stated in the policy.

11.       That the OP No.2 further submits that this respondent does not admit the vehicle involved due to theft on 11.05.2014 at about 10.00 AM, the complainant while getting into the bus at Koppal KSRTC Bus Stand to travel for Hubli, there was huge crowd in the Bus Stand and further alleged to state that at the time an unknown person has stolen the above mentioned mobile device from complainant’s Pocket and after few minutes by observing absence of the above said device, are all false, frivolous, bad in law and it is not maintainable as per law and the complaint filed by the complainant is baseless and it is liable to be dismissing with exemplary cost.

12.       That the OP No.2 further submits that this respondent is aware that the complainant has filed CC Claim before the District Consumer Forum at Koppal against the Manager, Sangeetha Mobiles Pvt. Ltd., and insurance authorities for Rs.21,279/- towards the cost the mobile device and Rs.50,000/- towards Damages towards mental agony, expenses and for causing inconvenience to the complainant’s profession, Rs.20,000/- towards deficiency in service and unfair trade practice, Rs.2,000/- towards cost of the issue of notice and Rs.5,000/- towards cost of this complainant are all false, frivolous, bad in law and it is not maintainable as per law. Further there is no deficiency of service from the Insurance Company and since the complainant has wasted the precious time of this Hon’ble Court and Insurance Company. Hence, the Hon’ble Court has to impose heavy cost and dismissing this complaint filed by the complaint with exemplary cost.

13.       It is most respectfully submits the Hon’ble Court that the said Sony Mobile device Stolen by the thieves on 11.05.2014 and the insured owner of the Mobile device has failed to inform the same to the Police Station and Insurance Company authorities within 48 hours. But, the complainant insured has to intimate to the Sangeetha Mobiles Pvt. Ltd. only on 19.05.2014 i.e. after lapse of 5 days. Further, as per the policy conditions, the Insured has to implead the Universal Insurance Brokers Services Pvt. Ltd. as proper and necessary party and without made them party, directly alleging and claiming and also put the burden against the OP (R1 and R2). Further, the complainant instead of sending the Claim Form directly to the Oriental Insurance Company through Universal Insurance Brokers Services Pvt. Ltd. The Respondent No.1 has give better service to the complainant and he furnished claim form to the complainant and fill up the claim form carefully and submit the same along with the attachments to the Insurance Company. But, the complainant after filled the form and requested R-1 to forward the same in good faith to keep the cordial relationship with the complainant and hand it over the claim form to the R-1. But, the claim form has not at all received by the Company either from the R-1 or M/s Universal Brokers Services Pvt. Ltd. or from the complainant within time as prescribed in the Policy conditions. Hence, the owner of the Sony Mobile Device has violated the conditions of the policy. Further, he also failed to lodge a complaint before the nearest police station within time. Hence, our insurance company is not liable to settle the claims.

14.       That the OP No.2 further submits that the owner of the Mobile device set has failed to intimate the nearest Police authorities within time. There is no such endorsement from the Town Police authorities of Koppal. The Town police authorities of Koppal have refused to receive the complaint since, he might have lost the Mobile set somewhere else and to get the claim amount from the Insurance company, he created a story that he lost the Mobile at KSRTC Bus Stand since the jurisdiction is comes under the Town Police Station, Koppal. In spite of it, he lodged a Private Complaint before the Hon’ble Court and got the directions from the court and later on, they registered the case vide Crime No.119/2015 under section 379 of IPC after lapse of 26 days. Hence, there is a delay of 26 days. The Insurance policy conditions are very clearly mentioned in the policy as “Claim for theft of vehicle not payable if theft not reported to the company within 48 hours of its occurrence.”

15.       That the OP No.2 further submits that the Hon’ble Court that the said complainant has filed complaint CC 61/2015 before the District Consumer Disputes Redressal Forum at Koppal under Section 12 of the Consumer Protection Act. The complainant has not at all sent the Claim Form to OP No.2 Insurance Company at any time and Legal Notice also not received by the said Insurance Company and there is no acknowledgement from the said Original Policy issuing authority. Only after received the Notice from the said Consumer Forum, Koppal, in CC No.61/2015, the R-2 Insurance Company came to know the facts about the stolen of Sony Mobile device set pertains to the complainant. Now at this stage, the Respondent No.2 are not liable to settle the claims. On this count alone the petition is liable to be dismissed the complaint against this Respondents with exemplary cost.     

            16.       On the basis of the above pleadings, the following points have been framed:

POINTS

1.  Whether the complainant proves that there is deficiency in service and unfair trade practice on the part of the respondent No.1 and 2 in not settling the Insurance Policy for the theft of his mobile?
2. Whether the complainant further proves that he is entitled for the relief sought in complaint?

3. What order?

     17.            To prove the case of the complainant, the complainant himself examined as PW1 and got marked documents as per Ex.A.1 to Ex.A.8 and closed their side of evidence. The OP No.2 himself examined as RW1 and got marked documents as per EX B1 and closed their side of evidence.   

     18.           Heard the Arguments and perused the records.  

     19.   Our findings on the above points are as under;

Point No. 1 :   In the Affirmative,

Point No. 2 :  In the Affirmative

                  Point No. 3 :  As per final Order for the following

REASONS

20.  POINT No. 1 and 2:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.

21.  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, there is no dispute that there was an insurance policy to the purchased Sony Xperia–C 2305 mobile device from OP No.2 through OP No.1. There is also no dispute that the said mobile was purchased from OP No.1.

22.       It is also admitted that the Sony Xperia – C 2305 mobile set involved in the accident is covered under the insurance from this OP No.2. Its Policy No.421100/48/2014/160 and the same is covered subject to various Terms and Conditions stated in the policy To prove the case of the complainant, the PW-1 has reiterated the complainant averments, in his examination in Chief and in support of his case, he has produced the documents pertains to the Mobile i.e. the original invoice of the bill i.e. EX A1. He has further averred that he has purchased the mobile hand set from OP No.1 to the total value of Rs.20,279/- i.e. EX A1 clearly reveals that the bill is in the name of the complainant and the total cost of the mobile hand set. PW-1 further averred that on 11.05.2014 at about 10.00 AM the complainant while getting into the bus at Koppal KSRTC Bus Stand to travel for Hubli, there was huge crowd in the bus stand and at that time an unknown person has stolen the mobile device from his pocket. Then immediately the PW-1 has duly intimated to OP No.1 about the facts and for which the OP No.1 suggested the complainant to bring complaint and FIR regarding the theft of the device. Then the PW-1 further averred that he went to the Town Police Station, but the police authorities refused to register the case and having no other go, the complainant had filed private complaint before the JMFC Court, Koppal on 15.05.2014 in P.C. No.133/2014 and got registered the matters for investigation u/s 156 (3) of Cr.P.C. i.e. EX A2. EX A2 clearly reveals that a complaint is filed and the Hon’ble JMFC, Koppal has passed the order to register the Crime and then finally the Police registered the case on 07.06.2015 and sent FIR to the Court and to substantiate the same. The complainant has produced the certified copy of the said FIR which is marked as per EX A3.

23.       Further with respect to Point No.1, the RW2 who is Insurance Company has deposed as per their specific defence set up in this Written Version that the insured owner of the mobile device has failed to inform the same to the police station and insurance company authorities within 48 hours. But, the complainant has informed only on 19.05.2014 to OP No.1. The complainant has averred and deposed that soon after the incident, he immediately informed the respondent No.1 regarding the theft of the mobile and after his suggestion to get the complaint and FIR he appeared before the Town Police and the Police authorities refused to lodge his complaint and hence the complainant was forced to file a Private Complaint before Hon’ble JMFC, Koppal. He has produced the certified copies of the complaint which is marked as EX A2 and after the order passed a FIR was registered and that the said FIR was marked as EX A3.

24.       But the disprove that the complainant has not informed the OP No.1 within 48 hours, the OP No.1 has not produced any other cogent and corroborative evidence. Therefore, it can be presumed that the complainant has informed the OP No.1 within 48 hours and followed the suggestion given by him. Further the documents which have been relied by the complainant more specifically with respect to EX-A1. EX A1 is the original invoice given by OP No.1. On the backside of the Invoice there is detail of the Mobile Hand set, Insurance Policy Coverage brief and claim procedure to the OP No.2. On perusal of the EX A1, it is clear that the policy covers even when the theft while travelling in public transport. Further, in claim process, it is clearly mentioned that the insured person shall inform OP No.1 immediately after the occurrence of the theft or burglary and follow their instructions. PW-1 has deposed that he has informed the OP No.1 immediately soon after the theft of the mobile and followed the instructions of OP No.1. Further it is also deposed that the police authorities did not lodge this complaint and hence he was forced to file a private complaint. Therefore, on perusal of the EX A1 and EX A2 which have been produced by the complainant it can be presumed that the complainant has informed the OP No.1 and Police Station within 48 hours. As per the claim procedure soon after the intimation to OP No.1, it is the duty of the OP No.1 to inform the Insurance Company about the theft. Because here the policy conditions clearly states that the claim procedure states with Sangeetha  Mobile Pvt. Ltd., (OP No.1) only. This itself clearly goes to show that even after informing OP No.1 about the theft within 48 hours, the OP NO.1 failed to inform the OP No.2   

25.       In the cross of RW-2 through Interrogatories in Question No.1, the RW-2 has deposed and admitted that it is the role of the OP No.1 to provide add on service to the needy consumers through the brokerage Agency Company i.e. M/s Universal Insurance Brokers Services Ltd. The condition of the Policy issued to the Sangeetha Mobile Company along with Group Insurance Policy. This agreement is mainly with Sangeetha Mobile (P) Ltd. and M/s Universal Insurance Brokerage Services through original Oriental Insurance Company.

26.       Further, during the course of arguments advanced by the counsel for the OP No.2 they have much argued that to in plead Universal Insurance Brokers Service Pvt. Ltd. as proper and necessary party. The counsel for the complainant has argued that as per condition, the OP No.1 has to be informed the brokerage Agency between Sangeetha Mobile and the Insurance Company is the Universal Insurance Brokers Service Pvt. Ltd. Therefore, in this present complaint, the complainant has to inform the Sangeetha i.e. OP No.1 and then OP No.1 has to inform the Universal Insurance Broker’s Service Pvt. Ltd., and then he will inform the Oriental Insurance Company i.e. OP No.2. So as per the convenience the burden on the complainant was to inform the Sangeetha OP No.1, but not the Universal Broker’s Service. Therefore, the contention taken by the OP No.2 Counsel that the complaint is also bad for non inclusion of Universal Insurance Broker’s Service Pvt. Ltd. is not justifiable one.

27.       The OP No.1 has not appeared before this Forum to answer any of the allegations made by the complainant and have not shown any reasons for not informing the OP No.2 about the theft or necessary documents of the claim form have been sent to OP No.2 or no. Therefore, it can be presumed that there is deficiency in service on part of OP No.1 in not intimating the theft of the mobile to OP No.2 in time.

28.       The counsel for the complainant has relied upon the citations reported in AIR 1999 SC 1341. It reads as under:

“Evidence Act, 1872 – Section 114 – Adverse inference for neither controverting nor entering witness box – In a suit for recovery of money, defendant No.2, father of the plaintiff used to operate the bank account. Plaintiff alleged that money from his bank account was given to defendant No.1 by defendant No.2. Defendant No.1 did not controvert the plea, nor entered the witness box to deny such plea. Adverse inference can be drawn against him as contemplated by Section 114 (g)”.  

And also he has relied another citation reported in AIR 2002 SC 3652 it reads as under:

         “It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination it must follow that the evidence tendered on the issue ought to be accepted.”

Under these circumstances an adverse inference can be drawn holding that the OP No.1 failed to inform the OP No.2 in time. Such being the fact, what prevented OP No.1 not to inform the OP No.2. If these factors are taken into consideration definitely it goes to show that the OP No.1 has committed deficiency in service by not informing the theft of the mobile hand set in time to the OP No.2 through its brokerage services.

29.       The OP No.2 counsel has relied upon the following rulings:

1) Consumer Protection Reporter 2014 (4), Page 36 State of Madhya Pradesh.

2) Consumer Protection Reporter 2014 (4), Page 406 National Consumer, New Delhi.

3) Consumer Protection Report 2014 (1) Page No.224 NC,

4) Consumer Protection Report 2014 (2) Page No.328 NC

            We have gone through the same, the rulings laid down the position of law that there is a delay in informing to police as well as Insurance Company.

            30.       Here the OP No.1 has committed deficiency in service in not informing the OP No.2 in time, soon after the information given by the complainant after the theft. Therefore, the question of deficiency in service on part of OP No.2 is not correct.

31.       On the contrary as per the oral evidence coupled with the documentary evidence, the complainant has proved the deficiency in service on OP No.1 and the said fact has been clearly discloses in EX A1 to EX A3 which are the original invoice, complainant and FIR. Hence, in the light of above observations, the complainant have proved the deficiency in service and unfair trade practice on part of OP No.1. Hence, in the light of above observations, we constrained to hold Point No.1 and 2 in the affirmative.

32.  POINT No.3 :-  In view of the above discussion and findings, we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby partly allowed.

2. OP No.1 is directed to pay the worth of the device of Rs.20,279/- (Rupees twenty thousand two hundred seventy nine) along with Rs.10,000/- (Rupees ten thousand) towards deficiency of service and unfair trade practice and Rs.2,000/- (Rupees two thousand) towards litigation expenses and Rs.5,000/- (Rupees five thousand) towards mental agony to the complainant within one month from the date of receipt of this order, failing which 12% p.a. interest will be charged from the date of filing of complaint till realization.

3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 06^th day of June, 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

List of Document Exhibited for the OP2.

Witnesses examined for the Complainant / Respondent.