Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 283/2016
Mr. Ankit Sethi, s/o Sh. Bhim Sain Sethi
R/o 130, HUDA Sector-12, Haryana, Panipat-132103 ...Complainant
Versus
OP1- App Daily Pvt. Ltd.
606, Prabhatkiran Building, Rajinder Place
New Delh-110008
OP2-UB Insurance Association (App Daily Claims Division)
S204 and 205 Suraj Plaza, 196/8 25th Cross
8th Main Jayanagar, 3rd Block, Benglore-560011, Karnatka
OP3- The New India Assurance Co. Ltd.,
Bommasandra Branch, Kiadb Complex,
Benglore-562159 ...Opposite Parties
Date of filing: 03.08.2016
Date of Order: 31.07.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Shahina
ORDER
1. Ankit Sethi (in short ‘the complainant’) has filed the instant complaint u/s 12 of the Consumer Protection Act, 1986 against (1) App Daily Pvt. Ltd. (in short OP1), (2) U.B. Insurance Association (App Daily Claims Division) (in short OP2) and (3) The New India Assurance Company Ltd. (in short OP3, it was made party after permission on application u/s I rule 10 CPC, which was filed on objection of OP1 in its reply). The complainant states that on 23.08.2015, he had purchased one HTC Desire-(826) Mobile Phone/Handset from Go Mobile against invoice (annexed with complaint) and mobile handset was got insured from OP3 through OP1 to OP2 for covering risks of theft or other damages vide policy no. AD-AT-201015-2810260 valid for the period from 23.08.2015 to 22.08.2016.
2. On 19.10.2016, the mobile hand set of the complainant was lost and it was snatched by four and five persons at Rajiv Chowk Metro Station, Delhi and the FIR bearing LR No. 1052644/2015 dated 19.10.2015 lodged. (copy of the information report is on record). The incident was brought to the notice of OP1 on 19.10.2015. The representative of OP1 informed action has already been proceeded and the same is with OP2; complainant also sent email to OPs regarding said incident but no satisfactory answer was received from the sides of OPs. The complainant received the intimation of repudiation of the claim by a letter [which is dated 25.02.2016]. The complainant has alleged deficiency of service on the part of OPs and complainant requests to direct the OPs to either provide similar handset of the same company or in alternate amount of Rs. 28,000/- and Rs. 31,000/- as damages and Rs. 21,000/- legal expenses.
3. Initially notice on complaint was sent to OP1 and OP2, since they were parties to the complaint. Later OP3 was impleaded. OP1 and OP2 filed their written statements by opposing the claim.
OP1 filed its reply/written statement and opposed the complaint, firstly, the complainant took inconsistent plea that he informed the OPs that mobile was snatched by four robbers but in FIR he mentioned that the mobile set was lost, the same is not covered within the scope of the policy, as it is neither theft nor robbery. Secondly, the New India Assurance Company is solely responsible to indemnifying the loss, subject to terms & conditions and as per procedure mentioned in the user's guide. The OP1 is just service provider, the claim is to be considered by insurance company. The complainant was provided a kit, which was containing a scratch card, user's guide and terms & conditions of policy, when the complainant has purchased the protection plan.
4. OP2 was served with notice on 19.09.2016 but for want of appearance, it was proceeded ex-parte on 16.11.2016.
5. OP3 filed its reply and opposed the complaint. The claim was rejected as per standard terms & conditions application to the mobile handset in question, which was insured. The complainant was required to file police report with the nearest police station immediately and to obtain certified copy of complaint on the format provided by the OP3 or a written complaint by mentioning the IEMI Number, mobile phone number and complete narration of the event. But the complaint lodged with the police was only online complaint, without any follow up action to report to the nearest police station is not a sufficient complaint for the purpose of the claim of insurance. The complainant himself is self-contradictory. Snatching does not mean theft/stealing. The OP3 followed the terms and conditions of policy and repudiation is perfect under the law. The claim is not payable.
6. The complainant filed rejoinder and opposed vehemently that there is no substance in the allegation of written statement of OP3. The complainant explained in para-1(c) & (d) of his rejoinder that the complainant was not aware of terms & conditions of the policy and the complainant is a layman. After the incident of 19.10.2015; the complainant was under shock/depression, when registered FIR online and he used layman language. It is denied that snatching does not mean theft/stealing. It is further denied other allegations of written statement. It is further stated that the all terms and conditions of covering risk of insurance policy in respect of the mobile handset, which has been attached with written statement, is a false and fabricated document created only to defeat the claim of the complainant.
7. The complainant filed his affidavit for evidence, it is on the lines of the complaint, reflecting all the documents filed with the complaint, such as a copies of the invoice, information report, repudiation letter dated 25.02.2016, copy of legal notice with postal receipt, its reply, claim forms.
8. OP1 & OP3 have not filed their evidence, despite granting them opportunities. OPs/E was closed on 13.09.2017.
9. The complainant and the OP3 have filed their respective written arguments. The complainant also submits in paragraph-19 of his written argument that the insurer is statutory bound to indemnify the insured against the insured property and defense taken in the written statement is not sustainable in the eyes of law, the word ‘lost’ is always applies and applicable expression for person, by-whom the article was lost but the incident taken place is theft as mentioned in the contents of the FIR i.e. covering the meaning of theft, meaning thereby the incident occurred is known as 'theft'.
OP3 has filed written argument stating, snatching does not come within the purview of the terms & conditions of the policy, the complainant was required to file complaint with the nearest police station immediately and obtain a certified copy of the complaint on the format provided by OP3 or a written complaint mentioning the IMEI no., mobile no. and complete narration of the event.
10. The case of both the sides are considered by us, keeping in view the material on record. It is evident from record that OP1 & OP2 are service providers in selling product, insurance policy and processing of claim, they also supplied documents of policy of mobile handset. OP2 is only facilitator in processing the claim of the complainant. The OP3 has not disputed the issue of policy to complainant, details of insurance policy and its tenure. There is dispute by OP3 on the point of non-compliance of the terms & conditions of policy of mobile handset, the repudiation letter was issued that it was complainant himself negligent or there was willful neglect. Since OPs have not led their evidence, their defence cannot be looked into but simultaneously the burden lies on the complaint to prove his case of deficiency of services, negligence against OPs.
11. By looking at the record, there are contradictory facts and features of case as mentioned by the complainant, which does not inspire confidence. As per online information to police, the complainant mentions lost his mobile handset on 18.10.2015 at 08:12 hrs but matter was reported on online on 19.10.2015 at 18:10 hrs, which is after delay of about 34 hours. It is substantial delay and it has not been explained by the complainant. In complaint, the date of incident mentioned is of 19.10.2015 but as per information to police it was 18.10.2015. Further, identity of mobile phone is by its IMEI, which is mentioned in the claim form by the complainant, however, there is no such details of subject mobile handset by IMEI number or contact number of complaint in the information to police, to make its identity for its recovery, nor such details is mentioned in the legal notice filed (page 9-13 nor in correspondence nor in the complaint. The complainant had just given model/make of the mobile hand-set.
As appearing, the complaint had not reported the matter either to the local police nor to the police at Metro Station or its nearby. Moreover, complainant narrates lost of mobile hand-set, it is narrated by him in English through his email. Simultaneously, it is also stated that mobile handset was snatched forcibly by 4 or 5 person, without any details of incident or fact to protect/defend his mobile handset or raising alarm or identity of culprits by age, stature, etc. However, police had not registered the case of cognizable offence but information of lost article. The legal notice was sent to OP1 and OP2, service provider and they have responded too. Legal notice was not sent to OP3. The legal notice record filed does not depict the incident happened, since after paragraph 4 on page 10 thereof, the next paragraph is 6 on the page 11.
There is missing of link for want of identity of mobile handset in the police information and other allegations of complainant to make out case of deficiency of services or negligence. It was essential on the part of complainant to establish that it was his phone, which met with that fate and at such place. Therefore, evidence on record does not inspire confidence nor it corroborates the plea of complainant, nor establish any deficiency of services nor negligence on the part of OPs, the complainant could not discharge his onus to prove the complaint against OPs. So, complaint is dismissed. No order as to costs.
12. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
13. Announced on this 31st July, 2023.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
