A.K.Mehta President

1        The complainant Sh. Lovepreet Singh filed the present complaint under Section 11, 12 and 13 of the Consumer Protection Act (herein after called as 'the Act') against Apps Daily Solutions Pvt. Ltd. etc. (Opposite Parties) on the allegations of deficiency in service with prayer to direct the opposite parties to pay amount of Rs. 49,990/- as price of stolen mobile phone alongwith damages of Rs. 20,000/- for harassment etc. and Rs. 10,000/- as litigation expenses.

2        The case of the complainant in brief is that he purchased a mobile phone make Sony Experia/Z5 bearing IMEI No. 352189071571272 from K.R. Electronics-Opposite Party No. 2 on 25.11.2015 for Rs. 49,990/- against bill No. 542 and on the same day, complainant also purchased mobile protection kit of the Apps Daily Solutions Pvt. Ltd. Company-Opposite Party No. 1 and paid Rs. 1,999/- and activated the same vide scratch code; that the protection kit gives assurance policy of mobile phone for various kind of losses including loss occurred due to theft etc. mentioned in the kit of mobile phone; that on 7.1.2016, the complainant went to the area of village Bhikhwind on public transport due to some personal work and he noticed that his mobile phone was missing from his pocket and someone had stolen the same. The complainant tried his level best to locate the mobile phone but with no effect and then he lodged DDR No. 18 dated 8.1.2016 in Police Station Bhikhiwind in this regard and also gave intimation to service provider of Sim i.e. Bharti Airtel for stopping the services of the sim card; that complainant also made a complaint to the opposite party and opposite party assured the complainant that his claim would be satisfied soon but of no effect nor opposite parties paid any amount to the complainant inspite of repeated requests which amounts to deficiency in service and unfair trade practice and conduct of the opposite party also caused harassment and mental agony to the complainant and as such complainant is also entitled to compensation for harassment etc. alongwith price of the mobile phone under the Mobile Protection Kit. Hence complaint was filed.

3        After formal admission of the complaint, notice was issued to Opposite Parties and Opposite Party No. 1 appeared through representative and filed written version contesting the complaint on the Preliminary Objections that Protection Kit was provided by retailer and is sold in a sealed state which contained the terms and conditions of the product and it is mentioned in the terms and conditions that the customer should intimate the claim to the opposite parties on its toll-free number within 48 Hours of occurrence of any untoward incident; that mobile phone of the complainant was found missing on 7.1.2016 but the same was intimated to the opposite parties on 11.1.2016 and as such, complainant has not fulfilled the basic requirements of document by not intimating the opposite party within 48 Hours of occurrence and complaint is liable to be dismissed; that the claim of the complainant comes under the exclusion clause provided in the policy statement as the opposite parties are not liable for loss due to missing or misplaced or loss due to mysterious disappearance, forgotten unless there is theft due to visible force whereas police D.D.R. No. 18 dated 8.1.2016 states that mobile is missing and as such claim was not considered; that procedure mentioned in the Protection Kit is to be followed in lodging the claim in case of damage, theft or burglary of the mobile phone. On merits, the complaint is also contested on the same lines as were taken in the preliminary objections mainly that intimation has not been given within 48 hours of the occurrence and mobile is only reported to be missing which is not covered under the policy unless there is theft due to visible force and prayer was made for dismissal of the complaint with costs.

4        Opposite Party No. 2 was declared to have been duly served in the complaint through registered cover and as none appeared on behalf of Opposite Party No. 2, therefore, Opposite Party No. 2 was proceeded against exparte vide detailed order dated 10.3.2016.

5        Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The ld. counsel for the complainant tendered in to evidence the affidavit of complainant Ex. C-6 alongwith documents Ex. C-1 to C-5 and closed the evidence. Thereafter many and sufficient opportunities were granted to Opposite Party no. 1 to produce evidence but inspite of availing several and sufficient opportunities, opposite party No. 1 failed to produce any evidence in the Forum and later on also absented in the complaint and was proceeded against exparte vide detailed order dated 6.10.2016.

6        We have heard the Ld. Counsel for complainant and also gone through the file.

7        The complainant tendered his affidavit Ex. C-6 reiterating all the allegations of complaint in verbatim and also proved through affidavit all the allegations narrated in the complaint. He also proved receipt Ex. C-1 of the Mobile phone which shows that mobile phone in question was purchased by the complainant on 25.11.2015 for Rs. 49,990/- with 12 months warranty. The complainant also proved the scheme of Opposite Party No. 1-Apps Daily Solutions Pvt. Ltd.  Moreover Opposite Party No. 1 has also not specifically denied the issuance of mobile protection kit/ insurance policy in its written version and contested the complaint only on two grounds i.e. first, intimation has not been given within 48 Hours from the occurrence as provided in the kit and second the mobile is reported only as missing and was not allegedly stolen by some visible force. Otherwise Opposite Party No. 1 did not produce any evidence on the file rather absented in the case before producing the evidence and was proceeded against exparte.  The complainant has also proved a report Ex. C-3 issued by the Punjab Police regarding mobile phone and it shows that report was made on 8.1.2016 at about 4.45 P.M. though missing date of the mobile in the report is given as 7.1.2016 and complainant of this report is Lovepreet Singh complainant and it shows that complaint to the police was immediate which is more important as police is to investigate the case and officials of the O P No. 1 could enquire from the police regarding investigation. Complainant has also proved an application Ex. C-4 intimating the loss to the opposite parties and also to Bharti Airtel. He proved postal receipt Ex. C-5 on the file.

8        The evidence led by complainant remained unchallenged and unrebutted and there is no reason on the file as to why the same be not believed. Otherwise also, due notice was given to the opposite parties and opposite party No. 1, who is issuing authority of protection/ insurance kit of the mobile, appeared through representative and filed written version but later on absented in the complaint before producing evidence which also shows that opposite parties have nothing to say against the claim of the complainant and also have no evidence to prove the pleas taken in the written version. Otherwise, from unrebutted and unchallenged evidence produced by the complainant on the file, he has proved that mobile in question was purchased by him and he has also purchased a protection / insurance kit for the mobile of opposite party No. 1. Opposite Party No.1 has only taken plea that intimation has not been given to it within 48 Hours, but otherwise complainant has intimated the police on the next day of the loss which is more important than intimating the opposite party No. 1. The second objection taken by opposite party No. 1 is that complainant only reported missing of mobile which does not amount to theft of mobile. Otherwise, complainant found that his mobile is missing from his pocket and could not trace the same inspite of efforts which clearly shows that somebody has stolen the same and for complainant it is only missing as he has not seen the person stealing mobile in question from his pocket and as such, the case of the complainant stands proved on the file.

9        In view of above discussion, the complaint succeeds and same is allowed with costs in favour of complainant and against the opposite party No. 1 and the complainant is entitled to recover Rs. 49,990/- (Rs. Forty nine thousand, nine hundred and ninety only) from opposite party No. 1. The complainant is also held entitled to recover Rs. 5,000/-  (Five thousand only) as compensation from opposite party No. 1 for harassment and mental agony and opposite party No. 1 is also burdened with Rs. 2,000/- (Rs. Two thousand only) as litigation expenses. Opposite Party No. 1 is directed to comply with the order within one month from the date of receipt of copy of order failing which complainant is also entitled to interest on the price of mobile at the rate of 9% per annum from the date of complaint till realization. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.