DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  1^st  day of August,  2022

Present      :   Sri.Vinay Menon V.,  President

                  :   Smt.Vidya A., Member                        

                  :  Sri.Krishnankutty N.K., Member                                              

 Date of Filing: 22/05/2020    

     CC/49/2020

R.Pushparaj,

4/193, 1^st Floor,

Sankeerthanam,

Devi Nagar, Near Govt.Poly Technic College,

Kodumbu PO, Palakkad – 678 551

(By Adv.M.J.Vince)                                                     -           Complainant

                                                                                                  Vs

1. M/s.Bajaj Allianz General Insurance Co.Ltd.,

       Registered Office -  GE Plaza,

      Airport Road, Yerwada, Pune – 411 006

2. M/s.Bajaj Allianz General Insurance Co.Ltd.,

       Branch  Office -  Mangalam Towers,

Opp.Town Bus stand,  Palakkad – 678 014                             -           Opposite parties

(OPs 1 & 2 Adv.P.Prasad)

O R D E R 

By Sri. Vinay Menon V.,  President

1. In short,  complaint pleadings are  that the complainant, an engineer with NH department, while working at Pune, purchased a 3D TV which he had insured with the opposite party.  After using the TV for 13 months, it suffered some complaints which were non-rectifiable.  Upon informing the opposite party, they failed to honour the complainant’s request for indemnification  of cost of the TV. His request fell in  deaf ears.  There is deficiency in service on the part of opposite parties and is entitled to a compensation of Rs.5 lakhs. The complaint is filed seeking a compensation of Rs.3 lakhs and for incidental reliefs.
2. The opposite parties entered appearance and filed version raising disputes with regard to maintainability of this complaint before this Commission based on impossibility to deal the dispute in a summary manner, lack of territorial jurisdiction, bar of limitation and  non joinder of necessary parties. On facts they alleged that they were not granted an opportunity to inspect  the television. Further the complainant is entitled to avail alternative model which the complainant refused. The brand had offered alternate television to the complainant for  a reduced price of Rs.84,708/- since cost of TV of next version was higher. Off the said amount, the complainant had to pay Rs.26,474/- and the insurance company had to  pay Rs.58,233/-. The deal failed due to the refusal of the complainant to pay Rs.26,474/-. There is no deficiency in service on the part of  opposite parties and the complaint is only liable to be dismissed with cost to the opposite parties.  
3.  The following issues arise for consideration

1. Whether the complaint is bad for

1. Impossibility to deal the dispute in a summary manner;
2. Lack of territorial jurisdiction of this Commission,
3. Bar of limitation; and
4. Non joinder of necessary parties.

2. Whether, in the facts and circumstances of the case, the opposite parties are liable to reimburse the cost of television to the complainant, based on Ext.B1 warranty ?
3. Whether  there is any deficiency in service / unfair trade practice on the part of   opposite   parties ?
4. Whether the complainant is entitled to any reliefs as sought for ?
5. Reliefs,  if any ?

4.         Evidence on the part of the complainant consisted of proof affidavit and Exst.A1 to A4. Ext.A2 was objected to on the ground that it was a photocopy.
Since this Commission is not bound by the principles of Indian Evidence Act and in the absence of a contention that the said document is fabricated, the objection is overruled. Opposite parties produced proof affidavit and  marked Ext.B1.

            Issue no. 1

5.         The four preliminary legal issues raised by the opposite parties are  dealt with here under.

1. Impossibility to deal the dispute in a summary manner :

From the facts and circumstances of the case, we find that the dispute herein can be dealt-with with the available five documents filed by the parties herein namely Exts.A1 to A4 and B1. Hence, we are of the opinion that the terms and conditions of Ext.B1 agreement  and its appreciation would suffice to dispose off the lis. Hence, this dispute can be dealt-with in a summary manner.

2. Lack of territorial jurisdiction of this Commission:

This objection is raised considering the fact that the issuing authority, first opposite party is having its office at Pune and the policy fructified at Pune.  Nonetheless, as per Ext.A4 document dated 25/10/18 it is seen that the complainant purchased a TV in Palakkad. That means the complainant was residing at Palakkad on 25/10/2018 and that the TV in question suffered defects while he was in Palakkad. Further contents of Ext.A3 communication which is  uncontroverted also   show that the examination work   etc. of the TV was carried out while the complainant was in Palakkad. Also, claim of the complainant was repudiated in Palakkad.   Therefore, this Commission has  jurisdiction to try this matter.

3. Bar of limitation :

Even though there is no specific allegation as to how this complaint is barred by limitation, we are addressing this issue also. A perusal of Ext.A3  communication would show that the complainant’s claim was closed  during 2020. This complaint was filed on 22/5/2020. Hence, there is no bar of limitation.

4. Non joinder of necessary parties :

Complainant is the master of his litigation.  The complainant seeks to enforce his contractual rights conferred upon him by way of an agreement entered into between the opposite parties and him. The duty of this Commission is to see, based on the pleadings and evidence adduced, whether there is any deficiency in service on the part of  the parties arrayed as opposite parties. If the pleadings and evidence show that there is no deficiency in service on the part of opposite parties, naturally the complaint will be dismissed.   Otherwise, the complaint will be allowed. Hence, we hold that this Commission can go forward with this Complaint.

                  Issue No.2

6.         Ext.B1 is the extended warranty policy document issued by the opposite party in favour of the complainant. Ext.B1 coverage is as follows:

“COVERAGE :

The Company will indemnify the Insured against the repair or replacement costs in respect of the Insured Asset caused by a Breakdown arising out of manufacturing defect and / or due to poor workmanship of the service personnel of the authorized workshop during the Policy Period, provided that the liability of the Company in respect of any one Insured Asset  in any one Policy Period will not individually or in the aggregate exceed the Sum Insured set against such items in the Schedule”.

The contents of Coverage proves that the company had undertaken to indemnify the complainant in the event of a break down of the insured asset.

7.         Eventhough none of the parties have produced the repudiation of claim by the complainant, so as to ascertain the cause of repudiation,   paragraph 11 of the version filed by the opposite party states the cause for repudiation.  Paragraph 11 reads as herein below:

“11. It is further submitted that Brand is offering commercial solution as this model is discontinued and spares are not available with brand. Since spare is not available the asset cannot be repaired and therefore brand offered commercial solution. Brand offered 4K Television (which is latest technology but non 3D) in replacement of existing 3D television. But since, the new televisions cost is higher, the brand demanded Rs.84708/- after discount, after applying depreciation as per terms and conditions complainant has to pay Rs.26,474/- and Insurance company will pay Rs.58,233/-.  But complainant is not ready to pay Rs.26,474/-“.

The OP1 has no further objection or cause for repudiation  of claim going by the pleading and the evidence adduced by way of proof affidavit.

8. From the pleadings and from the evidence adduced by way of proof affidavit by the opposite parties, it is clear that the opposite parties have admitted their liability to indemnify  the complainant but they insist that the complainant should opt for a settlement which was offered by the manufacturer of the  television. We went through the entire Ext.B1 terms and conditions carefully and meticulously. We could not find any term or condition that makes the complainant opt for a settlement or deal offered by the manufacturer for the Insurance Company to reimburse the complainant.
9. On a perusal of the “Basis of Claim Settlement” portion of Ext.B1 (Left hand side of in sheet 5 of Terms and Conditions)  we find the reason for the insurance company forcing the complainant to opt for the settlement offered by the manufacturer.  Since the damage has rendered the entire TV useless and can be considered a case of total loss, clause 2 of basis of claim settlement is reproduced below:

“The sum insured in respect of each insured asset must equal the original purchase price of the insured asset. In the event of a loss, the basis of loss settlement shall be as follows:

1. Xxxxxx
2. In the case of a total loss, the company shall indemnify the insured in respect of the restoration or replacement cost upto the sub-limit of the sum insured set against the insured asset in the schedule, subject to a depreciation of 10% per annum from the date of manufacture.
3. Xxxxxxx
4. Xxxxxx”

10.             The final part of Ext.B1 (right hand side on sheet 6)  is an extended warranty claim process rendered simple for easy comprehension. In this depiction also nothing is seen to show that the insurer had contemplated that the insured should  take recourse to a settlement offered by the manufacturer.
11. The insistence by the Insurance Company as to why the complainant should accede to the settlement offered by the manufacturer is very simple.

If the settlement is accepted the amount payable by the insurance company is only Rs.58,233/-.

In the alternative, if the insurance company is to go by the terms and conditions of Ext.B1, they will have to cough up  a higher amount after deduction of 10% of Rs.1,96,500/- as the TV suffered damages within 13 months of purchase.  Therefore, by resorting to denial, they intend to save over Rs.1,50,000/-

12. We therefore hold that the opposite party is bound to to indemnify the complainant in terms  of Ext.B1.

Issue No.3

13. In view of the findings in Issue Nos.1&2, we hold that  the  opposite party has resorted to unfair trade practice. The conduct of the opposite party in forcing the complainant to accept an offer made by the manufacturer is an unfair trade practice on their part. By not indemnifying  the complainant, the opposite parties have  resorted to   unjust enrichment.  

There is deficiency in service on the part of opposite parties.

            Issue Nos.4 & 5

14.        Having found that the opposite parties have resorted to unfair trade practice and there being deficiency in service on the part of opposite parties, we hold as follows:

1. Opposite parties are directed to  indemnify  the complainant  the cost of the television after reducing 10% of its purchase price and deductable. The complainant is entitled to an interest of  10% on the amount thus arrived from the date the claim was filed before the insurance company till date of actual payment.
2. The opposite parties are directed to pay an amount of Rs.25,000/- (Rupees Twenty five thousand only) for resorting to unfair trade practice.
3. The opposite parties are directed to pay an amount of Rs.25,000/-(Rupees Twenty five thousand only) as compensation for deficiency in service.
4. The opposite parties are directed to pay an amount  of Rs.15,000/- (Rupees Fifteen thousand only) as cost of the proceedings.
5. This order shall be complied within a period of 45 days from the date of receipt of this order failing which the opposite parties shall pay  an amount of Rs.250/- per month or part thereof by way of solatium to the complainant till date of final  payment.

            Pronounced in open court on this the 1^st  day of August,  2022.

        Sd/-

                                                                                                         Vinay Menon V

                                                      President

         Sd/-

    Vidya.A

                        Member     

                           Sd/-   

                                                                                               Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Photocopy of Extended Warranty Policy Schedule

Ext.A2 –  Photocopy of  Invoice bearing No.196 dated 25/4/2017

Ext.A3 –  Printout of email communication dated 20/3/2020

Ext.A4 –  Original invoice bearing No.D005264 dt.25/10/2018

Exhibits marked on the side of the opposite party

Ext.B1 –  Certified true copy of Extended Warranty Policy Schedule for OG-16-9999-996-

                 00000005 dated 19/5/2017

Exhibits  from third party

 Nil

Witness examined on the side of the complainant

Nil of the opposite party

NIL

Court Witness

Nil

Cost :  No cost  allowed

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.