For the Opposite Party No.1 & 3: EXPARTE.
DATE OF FILING: 23.12.2015.
DATE OF DISPOSAL: 24.06.2017.
Dr. N. Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in insurance eservice against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. The brief relevant facts for disposal of the complainant are that one mobile phone was purchased by the complainant on 03.10.2014 from the O.P.No.1 vide Retail invoice No. 40 on payment of Rs. 12, 900/- toward purchase of the mobile set. The make and model of the phone is HTC 516. The mobile handset was insured with O.P.No.2 through U.B. Insurance Associates (Apps Daily), Bangalore (O.P.No.3) and accordingly O.P.No.2 has issued a policy with coverage of Fire, Lightening, Riot, Strike, malicious damages; theft/ burglary, accidental external means including accidental liquid damage vide Policy No.670302/46/13/24/ 00000008 with a validity of 12 months with effect from 03.10.2014. As per the complaint, the said mobile was stolen by an unknown person on 16.09.2015 at about 8.30A.M and accordingly the complainant reported the matter to the I.I.C., B.N. Pur Police Station, Berhampur, to the effect that the mobile model No.HTC 516 bearing sim No. 9337377076 was stolen and the B.N.Pur Police, after entertaining the complaint, issued an acknowledgment vide SD Entry No. 451 dated 16.09.2015. The complainant after losing his mobile, contacted the insurance agents of O.P.No.3 i.e. the U.B. Insurance Associates (Apps Daily) with a claim to reimburse but the sad agency directed the complainant to approach O.P.No.2 along with all necessary documents as per the Form No.A, covering letter within a prescribed format and accordingly the complainant also sent the claim form along with all necessary documents including the police report vide his correspondence dated 18.09.2015. However, the O.P.No.2 repudiated the claim of the complainant as per his letter dated 13.10.2015 on the flimsy grounds. The complainant repeatedly requested the O.Ps to settle his claim and when failed he issued a notice to the O.Ps through his counsel on 30.10.2015. Though all the O.Ps received the notice issued by the complainant, the O.P.No.3 only replied on 24.11.2015 by enclosing a photocopy of reply of O.P.No.2 dated 13.10.2015 and the O.P.No.1 and 2 did not prefer to reply did not settle the claim of the complainant. It is also contended in the complaint that the complainant paid premium but even in spite of specific conditions mentioned in the policy, the O.Ps intentionally avoiding to settle the claim of the complainant. Alleging deficiency in service on the part of the O.Ps the complainant has filed this consumer complaint with the prayer to direct the O.Ps to pay the insured amount of Rs.12,900/-with 12% interest under the policy and to award Rs.30,000/- toward cost of litigation in the best interest of justice.
3. Notice issued by this Forum against all O.Ps but except O.P.No.2, other O.Ps did not prefer to appear in this case, therefore, the O.P. No. 1&3 were set ex-parte on 16.05.2016 by this Forum.
4. Upon notice the O.P.No.2 appeared in this Forum on 12.04.2016 through learned counsel Sri P.C. Panigrahi, Advocate and filed version on 20/06/2016 and also filed his written argument on 01/08/2016. In the written version/argument it is stated that the averments made in the complaint are all not true and correct. The complainant has to prove the same which are not specifically admitted herein and they are deemed to be denied. It is not true that the alleged mobile that was purchased by the complainant under the alleged invoice was stolen on 16.09.2015 and the same was reported before the B.N.Pur Police Station, Berhampur vide SD entry No. 451 dated 16.09.2015. Even if any such entry made by the police, it is created at the instance of the complainant for wrongful gain. It is not true that the complainant had insured his alleged mobile under the O.P.No.2 through the O.P.No.3. But it is a fact that the so called policy mentioned in para-2 of the complaint was issued by this O.P. It is a fact that after getting claim intimation from the complainant regarding alleged loosing of his hand set, the O.P.No.2 scrutinized the relevant documents such as police papers etc and found that the mobile of the complainant is missing as per the certificate issued by the local police which fall under conditions No.3 & 4 of exclusion clause of the policy. Accordingly the claim relating to the missing of mobile of the complainant is repudiated and the same is intimated to the complainant vide its letter dated 13.10.2015. Though there is provision for covering the risk of theft/burglary in the policy but the same is not applicable in the present case as the mobile of the complainant is missing not on account of theft as it reflected in the police record. He has missed his mobile due his own negligence. So it is not payable as per conditions No.3 & 4 of exclusion of the policy. It is not true that the complainant has paid premium and the policy was issued by this O.P. in his favour. There is no intention of this O.P. to avoid in settling the claim of the complainant. As the missing mobile of the complainant is not coming under the scope of policy, this O.P. has rightly repudiated his claim. This O.P. has acted in dealing with the claim of the complainant within the scope of policy. So there is no deficiency in service on part of this O.P. in dealing with the claim of the complainant. The complainant is not entitled to get relief as prayed for in the present case. In case the complainant lost his mobile on account of theft, as per policy conditions he could have entitled to get 55% of total cost of his mobile as the age of mobile at the time of the alleged incident was beyond 180 days. Apart from, a sum of Rs.500/- is to be deduced towards policy excess. As per policy conditions, taking in to the ages of mobile of the complainant at the time of the alleged incident 45% of the total cost of the mobile is to be deducted towards depreciation. Since the mobile of the complainant has been missing, he is not entitled to get any relief as laid down conditions No.4 of exclusion of the policy. In the present case the complainant after missing his alleged mobile on account of his own fault, has informed to the concern Police Station about missing of his mobile. He has not informed to the police that he lost his mobile due to theft. As the missing of his mobile was not on account of theft, the police registered the same in missing register instead of initiating a criminal case under section 379 of I.P.C. From the alleged certificate issued by the police in connection with missing of mobile it is proved that the complainant has missed his mobile not due to theft rather due to mysterious disappearance and careless handling of the hand set. The complainant to get a new SIM with similar number has formally informed to the police for statutory compliance. So this O.P. has rightly repudiated the claim of the complainant. It is also contended that this Forum has got no jurisdiction to hear the case as the same is filled with some malicious intention to grab the public money so the present case is not maintainable under law. The complainant is not a consumer within the scope of CP Act. The present case is barred by limitation. Hence the O.P.No.2 prayed to dismiss the case with exemplary cost in the interest of justice.
5. On the date of final hearing of the consumer dispute we heard argument at length from the learned counsel for the complainant as well as for O.P.No.2. The matter proceeded against O.P. No.1& 3 in this consumer dispute. We perused the complaint petition, written version/ argument and documents filed by both parties. On perusal of the case record, it reveals that it is an admitted fact that the complainant insured his mobile phone with the O.P.No.2 through O.P. No.3 U.B. Insurance Associate (Apps Daily), Bangalore which is beyond dispute as is evident from his written version Para 2 of O.P. No.2 vide policy No.670302/46/13/24/ 00000008 with validity of twelve months from 3.10.2014 which further proved from the copy of bond issued by the O.P.No.2 i.e. New India Assurance Company Ltd. The retail invoice issued by O.P.No.1 proves that the complainant has purchased the mobile bearing Model No.HTC 516 on payment of Rs.12,900/- vide invoice No.40 dated 03.10.2014 which is also not in dispute. It is also an admitted fact that the said mobile set was insured with O.P.No.2 covering the risks of fire, lightening, riot, strike, malicious damage, theft /burglary Accidental external means, including accidental liquid damage, fortuitous circumstance in knowledge of the insured, act of God perils viz. flood, hurricane, storm, tempest, and typhoon as per the scope of cover under aforesaid policy. In the instant case as per the documents placed on the case record vide police report and certificate bearing No.451 dated 19/09/2015 issued by the I.I.C, B.N. Pur Police Station, the said mobile set was stolen at Kamapalli Market on 19.09.2015 at 8.30 AM. It is also evident from the case record that the complainant has intimated the theft of the mobile to the O.Ps in the prescribed claim form on 18.09.2015 which is also not denied by the O.Ps. However, the O.P.No.2 while processing the claim of the complainant repudiated the same on 13.10.2015 on the ground of exclusion clause of mysterious disappearance, forgotten, mission or misplaced or lost or if handset is left unattended at any point of time or any unexplained loss. During the course of the hearing of the dispute, the learned counsel for the O.P.No.2 also contended that this is not a case of stolen or theft of the insured mobile rather it is a case of missing since the concerned Police State has entered in the PS Mobile Missing Register. He further contended that contract of insurance is bound by the parties and the court cannot add, delete or substitute any ward. In support of his argument he has also filed a citation reported in 2010 IV CPJ (SC) 38, 2009/ 1 CPJ (SC) 06.
6. In the foregoing circumstances, the only question to be decided by this Forum in this case whether the insured mobile was stolen/theft or was a case of missing? And if stolen whether the insurer is justified repudiating the claim of the complainant? In this context, on perusal of the police report/certificate bearing No.451 dated 16/09/2015, it reveals that the I.I.C. B.N. Pur has certified that the complainant has reported regarding stolen of his mobile phone which was entered in the missing register of the Police Station. On this point, we would like to view that the merely the case was entered in the missing register does not mean it was not stolen. As per the prescribed certificate format of the IIC, B.N. Pur, it was ticked on stolen option not on lost option in the said certificate. We are, therefore, not inclined to accept that the contention of the learned counsel for the O.P. No.2 that the mobile was missing. In our considered view, as per the report of the I.I.C., B.N. Pur Police Station, it was stolen and not a case of missing. In the light of the foregoing discussion, we are of the view that the loss caused to the complainant is due to stolen is squarely covered under the insurance policy under the scope of cover i.e. theft and the insurer cannot avoid their liability arising there from. We are of the considered view that the repudiation of the claim of the complainant is totally unjustified. The citation filed by the learned counsel for O.P.No.2 reported in 2010 IV CPJ (SC) 38, 2009/ 1 CPJ (SC) 06 is not applicable to the case since the Forum has neither added nor deleted or substituted any ward in the conditions of insurance policy in this case.
7. As far as the insurance claim of the complainant is concerned, we are of the view that under the aforesaid policy, the mobile phone was insured for an amount of Rs.12,900/- i.e. the cost of the mobile set in dispute. As per the policy a condition, the claim of the complainant is to be settled in case of theft as per the following conditions of the insurance policy:
For Theft Claims Depreciation:
For 0 – 90 days 15%
91 – 180 days 25%
181 days and above 45%
Compulsory Excess (deductible):
5% of the admissible claim amount or Rs.500/- whichever is more.
On perusal of the above conditions and as per fact and circumstance of the case in hand, the mobile was purchased on 3.10.2014 and it was stolen on 16.09.2015 i.e. within during the policy in force. Therefore, the age of the mobile phone comes under the clause of 181 days and above. As per the policy condition and taking into account to the age of the mobile set of the complainant, about 45% of the total cost of the mobile will be deducted towards depreciation charges as the age of the mobile at the time of the alleged theft was beyond 181 days. That apart as per the policy conditions, a sum of Rs.500/- will be deducted towards policy excess. Accordingly, and as per the policy conditions, the complainant is entitled for 55% of the cost of the insured mobile i.e. Rs.7,095/-. As per the policy conditions, a sum of Rs.500/- to be deducted towards policy excess and after deduction of the said amount the complainant is entitled for an amount of Rs.6,595/- towards his insurance claim.
8. In this case, the O.P.No.2 has repudiated the genuine claim of the complainant without any justification on some flimsy grounds for which the complainant is entitled for interest. Accordingly, the Forum decided to award interest @6% per annum from the date of repudiation i.e. 13.10.2015 on the claim amount till the actual payment is made. Similarly, the complainant is also entitled for cost of litigation since the O.P. insurance company unnecessarily forced the complainant to file this consumer dispute and to hire the services of an advocate. In the present fact and circumstance of the case it appears just and proper to award Rs.500/- towards cost of litigation. However, we are not inclined to award any compensation in this case since we have already directed the O.P.No.2 to pay interest on the claim amount from the date of repudiation of the claim of the complainant. In the light of the foregoing discussion and taking into account to the peculiar fact and circumstance of the case, we allowed the case of the complainant against O.P.No.2 &3 and dismissed against O.P.No.1 since the complainant has not claimed any specific relief against O.P.No.1 and in fact there is no deficiency in service on part of O.P.No.1 in this case.
9. In the result the complaint of the complainant is partly allowed against O.P.No.2&3 and dismissed against O.P.No.1. The O.P No.2 and 3 are directed to pay Rs.6,595/- (Rupees Six Thousand Five Hundred Ninety Five) only with 6% interest per annum from the date of repudiation i.e. from 13.10.2015 till the actual payment is made to the complainant. The O.P.No.2 & 3 are also directed to pay a sum of Rs.500/- (Rupees Five Hundred) towards cost of litigation to be paid to the complainant along with claim amount at the same time. The aforesaid orders shall be complied by the O.P.No.2 & 3 within two months from the date of receipt of this order failing which the complainant is at liberty to recover the whole amount as per Section 25/27 of Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
10. The order is pronounced on this day of 24th June 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
