Complainant Amit Kumar through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to issue a New IPONE 6s Plus in place of old damaged Hand Set or to got remove the defects occurred in the phone including Display of the mobile phone. Opposite parties be further directed to pay compensation alongwith litigation expenses on account of mental and physical harassment suffered by him, from the hands of the opposite parties, in the interest of justice.

2.      The case of the complainant in brief is that he had purchased a Mobile Phone make iphone 6S + bearing IMEI No.353284072369963 on 02.02.2016 from the opposite party no.1 for Rs.75,000/- vide retail invoice No.2383 dated 02.02.2016 and its insurance was done by opposite party no.2 on payment of Rs.2399/- for the period one year  from 02.02.2016 to 1.02.2017 and all types of risks consisting of fire and allied perils damages, accidental physical damage and fluid and water damage has been covered. The Insurance was got registered with the opposite party no.2 through Coupon Code No.77199427. Unfortunately on 12.01.2017 he was going towards Jail Road, Gurdaspur from Bata Chowk Gurdaspur and he was attending the phone call. A motorcyclist from backside came in a very high speed who struck against him from his back side and due to the said struck his handset has lost from his right hand and has fallen into the road and the same has been got damaged from his front side.  He contacted the opposite party no.2 on various occasion telephonically and the related documents have been uploaded twice time by him on the website of the opposite party no.2 as per the instructions of the opposite party no.2, within the insurance period and he has given registered complaint no.1701131661 by the opposite party no.2, but they did not give any reply. On 5.5.2017 when he has seen the status of his complaint on Website of the opposite party no.2, then he was astonished to see the status “Your Job Card has been closed.” The act of the opposite party no.2 to harass him for a long period and not by paying the insurance claim is illegal, null and void. He has further pleaded that he is regular customer of opposite party no.2 as his wife had also insured her iphone 7S +. Hence this complaint.

3.        Upon notice, the opposite party no.1 appeared through its counsel and filed the written reply submitting therein that the complainant has approached the opposite party with the broken handset and it was advised by the opposite party to the complainant to contact with the opposite party no.2 for getting claim of the insured handset which has been got damaged and lastly prayed that the complaint has been prayed to be dismissed.        

4.       The opposite party No.2 appeared through its counsel and filed the written reply. Certain preliminary objections have been taken by the opposite party no.2. On merits, it was submitted that the complainant has purchased the syska gadget secure policy. The complainant never approached the opposite party regarding said claim. Therefore, there is no deficiency in service on the part of the present opposite party therefore no cause of action arose against the opposite party. The complainant has not followed the terms and conditions of the policy which were issued to the complainant at the time of policy issued to him. Therefore, the complainant is not entitled any claim/relief. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.        

5.     Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 alongwith other documents Ex.C2 to Ex.C16 and closed the evidence. 

6.    Counsel for the opposite parties had availed three opportunities for producing the evidence but they have failed to produce the evidence. On 30.10.2017, nobody has come present on behalf of opposite parties, therefore, they were proceeded against exparte vide order dated 30.10.2017.

7.      We have carefully examined all the documents/evidence as available on the complaint records (as duly put forth by the complainant) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional absence/ opted-out (preference-based) ex-parte proceedings by both the titled opposite parties i.e., vendor and the insurers, respectively; despite the proven summons-service/initial appearance through counsel(s) and filing the written statements etc; of course, in the very back-drop of arguments as put forth by the learned counsel for the complainant. By the time, it has been more than a century old trite law that the litigants preferring ‘ex-parte proceedings’ have no legs to stand and step into the witness box to prosecute their defense   

8.       We find that the complainant had on record purchased (affidavit Ex.C1) one Mobile I-Phone 6S IMEI 353284072369963 from the OP1 Vendor vide Invoice #2388 (Ex.C11) on 02.02.2016 for Rs.75,000/- and got the same insured (Ex.C2) from the OP2 insurers (Syska Coupon 77199427 Ex.C3) through the OP1 vendor at his instance and recommendations by paying Rs.2399/- as the annual premium up to 01.02.2016. However, the insured mobile fell accidently on the Jail Road and was badly damaged to fall defective and mal-functioned thereafter. On approach, the OP1 vendor directed him to the OP2 insurers for filing the insurance-claim (Ex.C4/ Ex.C5) that was duly filed along with the related requisitioned documents (Ex.C6 to Ex.C14) being: Declaration, Invoice, Photographs, PAN, Blank-Cheque and Device Card for  the necessary replacement/refund etc. Upon having got no response to his claim, the complainant checked for its on-line status (Ex.C15) on insurer’s website and to his shock found the same to have been ‘unceremoniously’ closed and thus prompted the present complaint.

9.       We find that the OP1 vendor through his written statement has tried to evade his responsibility by stating that claim-settlement of the insured device had been the discretional liability of the OP2 Insurers who in turn had pleaded through their written reply that the instant insurance did not cover the intentionally/negligently caused damage/loss etc to the insured device and has further inadvertently stated that complainant here had himself e-mailed having found his lost mobile whereas the claim has been for ‘damage’ and not for ‘physical-loss’ etc and that shows the reply to have been made in utter negligence.

10.     Lastly, we find that the complainant’s consumer rights have indeed been determined since the titled opposite parties have intentionally opted for ex-parte proceedings after appearing once (before the forum) through the counsel(s) and thus going by the old accepted norms it can be judicially presumed that the titled opposite parties never had any defense to plead in their support. No doubt, we shall be at a judicious discretionary liberty to draw an adverse ‘judicial inference’ by virtue of a plethora of superior courts judgments that the ex-parte opposite parties had no defense to prosecute and thus they instead preferred to go ‘ex-parte’. The above legal proposition holds true since more than a century vide the old legal history of Indian law and its collateral jurisprudence. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/ or to cast undue excessive ‘distresses’ to the delinquent parties.           

11.     In the light of the all above, we find the hue of actionable merit (under the Act) in the present complaint and thus ORDER the titled opposite parties (vendor & insurers, both) to replace (free of any cost) the damaged Mobile Set (in question) with a new/fresh piece of Mobile of same make with similar specifications to the present complainant besides to pay him Rs.5,000/- as cost and compensation within 30 days of the receipt of these orders otherwise both the opposite parties shall be jointly and severally liable to refund the full purchase price of the Mobile Device Set (in question) with interest @ 9% PA alongwith cost and compensation as imposed from the date of purchase till actual payment.   

12.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

                                                                      (Naveen Puri)

                                                                           President.                                                                                    

ANNOUNCED:                                             (Jagdeep Kaur)

March 09, 2018                                                    Member.

*MK*