Haryana

Karnal

CC/359/2019

Narender Singh - Complainant(s)

Versus

Bajaj Allianz General Insurance Company Limited - Opp.Party(s)

Sandeep Rana

20 Apr 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 359 of 2019

                                                        Date of instt.18.06.2019

                                                        Date of Decision:20.04.2022

 

Narender Singh son of Jagdish Chand, resident of village Kalron near Ravidass Mandir, Tehsil Gharaunda, District Karnal.

 

                                               …….Complainant.

                                              Versus

 

Bajaj Allianz General Insurance Co. Ltd. SCO 156-159 2^nd floor Sector 9-C Chandigarh through its Divisional Manager.

 

                                                                      …..Opposite Party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Dr. Rekha Chaudhary…..Member      

      Sh. Vineet Kaushik…….Member

           

 Argued by: Shri Baldhjir Singh, counsel for complainant.

                    Shri Rohit Gupta, counsel for opposite party.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is the owner of one mobile of Samsung A6-6446 and the same was insured with the OP, vide policy no.OG-19-1201-99331-00003450 with all risk. The complainant has purchased the said mobile from M/s Sony Electronics opposite Om Hospital Railway Road, Gharaunda, District Karnal for consideration of Rs.20990/-. The said mobile of the complainant met with an accident on 06.05.2019 and same was intimated to the OP and OP noted the claim no.OC-20-1201-9931-00000310 and complainant completed all the formalities. Complainant received a letter dated 18.05.2019 from OP and shocked to know that the OP has repudiated the claim of the complainant on the ground that “as no claim under the policy terms and condition”. However, the claim of the complainant comes under the terms and conditions of the policy as insurance of mobile is with all risk as per policy. Thereafter, complainant requested the OP so many times to release the genuine claim of complainant but OP did not pay any heed to the request of complainant. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed written version raising preliminary objections with regard to maintainability: cause of action; locus standi; territorial jurisdiction and concealment of true and material facts. On merits, it is pleaded that the policy in question was issued from Chandigarh and the claim of the complainant stands processed and repudiated from Chandigarh, where the OP is having its office. The OP has no branch office at Karnal, as such present complaint is not maintainable before this Commission and deserves to be dismissed for want of territorial jurisdiction. It is further pleaded that the alleged claim of the complainant has been duly processed by OP and the same stands repudiated by closing the claim file as No Claim, vide letter dated 18.05.2019 as the said claim serviced by an outsourced agency, shot formats and the said claim servicing agency has confirmed after going through the claim related papers submitted in support of claim, it has been observed that loss reported is caused due to incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect setup and neglect which falls outside the scope of the policy and this claim is accordingly not maintainable under policy terms and conditions. The subject policy indemnifies any loss related to insured equipment if the said equipment is being used by owner himself/herself exercising due care. Thus, the claim of the complainant has rightly been closed as No Claim. It is further pleaded that in case the court considers that the OP was deficient in service then the liability of OP will not be more than amount as prescribed under the terms and conditions of the policy i.e. Rs.13,643/- in case of total loss, if the claim is admissible. As the mobile phone at the times of loss was more than six months old hence as per terms and conditions of the policy, depreciation of 35% is applicable. There is no deficiency in service on the part of the OP, while repudiating the claim of the complainant. The other allegations made in the complaint have been denied by the OPs and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence his affidavit Ex.CW1/A, copy of repudiation letter Ex.C1, copy of tax invoice Ex.C2, copy of insurance policy Ex.C3, terms and conditions of insurance policy Ex.C4 and closed the evidence on behalf of complainant on 05.02.2021 by suffering separate statement.,

5.             On the other hand, learned counsel for OP has tendered into evidence affidavit of Saurav Khullar, Legal Claims-Senior Executive Ex.OP1/A, copy of repudiation letter Ex.OP1, copy of insurance policy Ex.OP21 and closed the evidence on behalf of OP on 04.01.2022 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his mobile set in question with the OP. The said mobile of the complainant met with an accident on 06.05.2019 and same was intimated to the OP and complainant completed all the formalities. Complainant requested the OP so many times to settle the claim but OP did not pay any heed to the request of complainant and lastly repudiated the claim of the complainant on the ground that “as no claim under the policy terms and condition”. However, the insurance of mobile is covered with all risk as per policy terms and conditions. Hence, prayed for allowing the complaint.

8.             Per-contra, learned counsel for OP, while reiterating the contents of written version, has vehemently argued alleged claim of the complainant has been duly processed by OP and the same stands repudiated by closing the claim file as No Claim, vide letter dated 18.05.2019. During investigation it was observed that loss reported is caused due to incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect setup and neglect which falls outside the scope of the policy and this claim is accordingly not maintainable under policy terms and conditions. He further argued that this Commission has no territorial jurisdiction to try and entertain the present complaint.  Hence, prayed for dismissal of the complaint.

9.             We have duly considered the rival contention of the parties.

10.           Admittedly, the mobile set in question caused accident during the subsistence of insurance policy. The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C1/OP1 dated 18.05.2019 on the following ground which reproduced as under:-

                “The abovesaid claim serviced by an outsourced agency shot formats. The said claim servicing agency has confirmed after going through the claim related papers submitted in support of claim, it has been observed that loss reported is caused due to incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect setup and neglect which falls outside the scope of the policy and this claim is accordingly not maintainable under policy terms and conditions.”

 

11.               The first question for consideration before us is that whether this Commission has territorial jurisdiction to try and entertain the present complaint or not?

12.           The complainant has purchased the mobile set in question from Gharaunda, District Karnal and the same was also insured in Gharuanda, District Karnal. Thus, this Commission has territorial jurisdiction to try and entertain the present complaint.

13.           As per version of the OP that the loss occurred due to incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect setup and neglect which falls outside the scope of the policy and this claim is not maintainable as per the terms and conditions of the policy. On the other hand, the onus to prove his case lies upon the complainant, but complainant miserably failed to prove his case by leading any cogent and convincing evidence for the loss and there is no documentary evidence on the file to believe the version of the complainant with regard to that where accident took place and how much cause of loss of mobile set in question.  Hence, we found no substance in the contention of the complainant. In this regard reference may be made to the judgment of  Supreme Court in case titled as Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) 1 SCC 66 where in Hon’ble Supreme Court held that:-

“The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it.”

 

14.           Thus, as a sequel to abovesaid discussion, we found no merits in the complaint and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:20.04.2022

 

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                    Member                         Member