Andhra Pradesh

Chittoor-II at triputi

CC/73/2019

K.Hemadri, S/o. K.Rajarathanam alias Raja rao, - Complainant(s)

Versus

Bajaj Fin Service Ltd., Rep. by authorized signatory. - Opp.Party(s)

G.Guru Prasad

03 Jun 2022

ORDER

 

Filing date: 22.06.2019

Order date: 03.06.2022

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, CHITTOOR AT TIRUPATI

 

 

Present: Sri Achuta Partha Sarathy, President

         Sri Naga Sasidhara Reddy, Member

              Smt. T. Sneha Latha, Woman-Member

 

Friday, the Third (03^rd) day of June, 2022

 

C.C.No.73 of 2019

 

(Delivered by Smt. T. Sneha Latha, Woman-Member on behalf of the Bench)

 

Between:   K. Hemadri, S/o. K. Rajarathanam @ Raja Rao, Hindu, aged about 37 years, residing at D.No. 8-60, Leprosy Colony, Srinagar Area, Tirupati, Chittoor District.
….Complainant

And:

1. Bajaj Fin Service Ltd., rep. by its Authorized

Signatory, Pasuparthy Towers, D.No.19-8-112/5,

A.I.R. Bypass Road, Hathiramji Colony, Tirupati.

 

     2. CPP Assistance Service Pvt. Ltd., rep. by its authorized

         Signatory, Ground Floor, Wing – A, Tower – A, Golt view

         Corporate Towers, Golf Course Road, Sector – 42,

         Gurgaon, Haryana – 122 002.

 

3. HDFC Ergo Insurance Co. Ltd., rep. by its authorized

Signatory, 1^st Floor, D.No. 10-14-575/2, PMR Plaza,

V.V.Mahal Road, Tirupati.

                                     

….Opposite Parties

 

           This complaint coming before us for final hearing on 17.05.2022 in the presence of Sri.G.Guruprasad, Advocate on behalf of the complainant and Sri.Y. Upendra, Advocate on behalf of the opposite party No.1, Sri. C. Poorna Chandra, Advocate on behalf of the opposite party No.2 and Sri. S.M. Jhan, Advocate on behalf of the opposite party No.3, upon hearing and considering the material on record this case having stood over till this day for consideration, this commission delivered the following order:

O R D E R

01.             The complainant filed this complaint Under Section 12 & 14 of the Consumer Protection Act, 1986 praying for a direction to the opposite parties 1 to 3 jointly and severally to pay an amount of Rs. 36,900/- towards cost of the smart phone and also direct the opposite parties 1 to 3 to pay compensation of Rs.50,000/- for causing mental agony and deficiency of service and also to pay Rs.5,000/- towards legal expenses.    

02.            The brief case facts of the complainant as alleged in the complaint is as follows—  The complainant purchased Smart Cell Phone from Lot Mobile Pvt. Ltd., Tirupati on 20.03.2017 under invoice No.SI/TPT-2/3359 model No.C900F Samsung IME No. 356368081557812. The opposite party No.1 financed to the complainant to purchase the said smart cell phone with the instructions of opposite party No.1 and also precondition for sanction of Finance to the complainant. He has purchased CPP FONE Safe Classic Membership bearing No. 409552 for Rs. 2,409/- and the opposite party No.2 has provided protection for mobile phone against the accidental loss and theft. All the risks are protected under Group Policy i.e. HDFC taken by opposite party No.2 and the opposite party No.2 became a holder of the policy of HDFC. Opposite party No.2 is insured and the opposite party No.3 is insurer. The FONE safe protection starts from 20.03.2017 i.e. date of the purchase of the smart phone by the complainant and is valid for 12 months (20.03.2018). Opposite party No.3 insurer issued a policy No. 2999201606064200000 in favour of the complainant as a beneficiary. 

03.         The complainant further submits that on 24.06.2017 at about 3:30PM while charging the smart phone in his house at that time some unknown persons entered the house and stolen the cell phone. Immediately the complainant intimated to opposite party No.1 and opposite party No.1 intimated the same to the opposite party No.2. The complainant also lodged a complaint to S.H.O. Alipiri P.S., Tirupati and that effect S.H.O. Alipiri P.S. Tirupati issued a Receipt No.337/2017. The complainant further averred that he informed regarding the theft of the mobile phone through E-mail to opposite party No.2 on 26.06.2017, 29.06.2017 and 02.07.2017. After that the opposite party No.2 gave a reply by way of E-mail to the complainant and asked the complainant to fill up the claim form through E-mail on 19.08.2017 to opposite party No.2. After that opposite party No.2 sent another mail to the complainant on 20.08.2017 asked for  required documents from the complainant like FIR, original Mobile Bill, Photo ID, cancellation cheque and that the complainant sent the same through registered post to opposite party No.2 on 05.09.2017 and opposite party No.2 received the same. The opposite party No.2 has neither complied nor replied the same. The complainant also averred that the opposite parties No.1 to 3 have not settled the claim. It amounts to deficiency of service and caused mental agony to the complainant. The complainant further averred that he was frustrated with the action of opposite parties and got issued a legal notice to opposite parties 1 to 3 calling upon them to settle the claim. The opposite party No.1 refused to take the legal notice and opposite parties 2 and 3 received the legal notice but neither complied nor replied the same. It amounts to deficiency of service on part of the opposite parties 1 to 3. Hence the complaint.

04.        The written version of the opposite party No.1 contents as follows:  Opposite party No.1 submitted that there is no company in the name of “Bajaj Fin Service Limited”. Further the name of the company is “Bajaj Finance Limited”. Bajaj Fin Service Limited is the holding company of Bajaj Finance Limited and both are separate entities. The complainant has availed various consumer durable loans from “Bajaj Finance Limited”. Opposite party No.1 denies and disputes all the contentions except those that are specifically admitted herein. The opposite party No.1 contended that the complainant had purchased a mobile phone from the dealer/manufacturer and also had availed a loan from the opposite party vide loan account No. 442DPF36837430 for an amount of Rs. 36,900/- dt: 27.03.2017 for monthly installments (EMI) to be paid Rs.3690/- for contract period of 10 months commencing from 02.05.2017. The opposite party No.1 averred that the complainant has paid three EMI’s in advance totaling Rs.11,070/- i.e. (Rs.3690x3)and the balance EMI for seven months to be paid 02^nd date of every month. The said loan as on date stands closed which is evident from the statement of account which is attached (Annexure-A). The opposite party No.1 also contended that the complainant was a chronic defaulter towards the payment of the monthly installments of the said loan. The complainant entered in to a settlement with opposite party No.1 and as per the details, the complainant paid an amount of Rs. -17,736/- in cash on 31.12.2018 and said loan account was closed. The opposite party No.1 also contended that complainant had also availed an insurance from the opposite party No.2 and 3 vide Loan account No. 442DFS36837809 for an amount of Rs. 2499/- dt: 27.03.2017 for a contract period of seven months with a monthly EMI of Rs.357/-. The certificate of insurance was duly dispatched to the complainant.

05.             The complainant after loss of his mobile informed to the opposite party No.1 and 2 through E-mail. The mobile phone of the complainant was lost and loss of product is not covered under the Fonesafe Classic as per the opposite party No.1 and 2. The opposite party No.1 further submits that the membership of the complainant was cancelled on 21.06.2017 and claim request was received by the complainant on 26.06.2017 which was not taken in to consideration as membership was already cancelled and claim request was for loss of mobile phone which is not covered under FoneSafe classic as per the terms and conditions of the certificate of insurance.

06.        The written version of the opposite party No.2 contents as follows: 

                 Opposite party No.2 has not an insurance company. The mobile phone of the complainant was insured by M/s. HDFC ERGO General Insurance Company Limited i.e. opposite party No.3. The role of opposite party No.2 was limited to getting the mobile phone insured by an insurance company. Opposite party No.2 has diligently discharged the role by getting the mobile phone insured by opposite party No.3. Opposite party No.2 not a necessary party and complaint is bad for mis-joinder of party.The complainant voluntarily took membership from this opposite party No.2 on 20.03.2017 and was valid till 19.03.2018. It is pertinent to mention that the mobile phone of the complainant was financed by opposite party No.1. However on 21.06.2017 the opposite party No.1 instructed the opposite party No.2 to cancel the membership of the complainant and suspend all the benefits appended thereto. Opposite party No.2 is bound by the instructions of the opposite party No.3. Therefore, opposite party No.2 cancelled the membership of the complainant acting on the instructions of the opposite party No.3. It is submitted that the alleged incident of theft happened on 24.06.2017 i.e. subsequent to cancellation of membership as such claim of the complainant is invalid and cannot be entertained by the opposite party No.3.

07.        The written version of the opposite party No.3 contents as follows: 

                 The opposite party No.3 does not admit any of the allegations made in the complaint except those that are specifically admitted. It is true that the complainant had purchased Smart Cell Phone from Lot Mobile Pvt. Ltd., with the finance of opposite party No.1 and with the instructions of opposite party No.1 he purchased CPP FONE Safe Classic membership bearing No.409552 for Rs.2497/- from opposite party No.2 and opposite party No.2 provided protection against the accidental loss and theft of the Smart Cell Phone. Since the complainant is FONE Safe Classic Subscriber, all the risks are protected under the group policy i.e. HDFC taken by opposite party No.2 and the opposite party No.2 became a holder of the policy of HDFC. So opposite party No.2 is insured and the opposite party No. 3 is insurer. Under the CPP FONE Safe the loss coverage up to purchase of price of the complainant Smart Phone value of Rs.36,900/-. The FONE Safe protection starts from 20.03.2017 i.e. the date of purchase of smart phone by the complainant and is valid for 12 months. Opposite party No.3 issued a Policy No.2999201606064200000 in favour of the complainant as a beneficiary and the said policy starts from 20.03.2017 to 19.03.2018 covers only accidental damages (including liquid damage). The General Condition No.4 under the policy states that about the
Accidental damages.  The complainant was issued welcome kit which apart from the policy copy and conditions also included a guide to the FoneSafe Class advantage, which clearly states that the said policy only provides protection against accidental and liquid damage further the policy terms also gives an elaborate list of exclusion under the policy. The first exclusion reads as loss or theft of your equipment. The averments of the complainant is that the loss of the insured item was stolen, the policy condition is clear that theft is excluded under the coverage, hence the claim falls beyond the policy scope and is not admissible.

08.            The complainant filed his evidence affidavit as PW-I and Ex:A1 to A10 are marked. On behalf of the opposite party No.1 Sri. M. Aravind, S/o. M. Sudharshan, working as Legal Manager filed Chief Affidavit as RW-1 and Ex:B1 and B2 are marked. On behalf of opposite party No.2 Sri. Gagan Chawla, Director Finance filed his Evidence Affidavit as RW-2 and no documents were marked. On behalf of opposite party No.3 Sri. Aneesh Bhaskaran, S/o. Late M.V. Bhaskaran, working as Manager Legal Claims in Opposite Party Organization filed Chief Affidavit and Ex:B3 and B4 are marked. Both parties filed their written arguments and submitted oral submissions.

09.               Now the point for consideration is:

                   Whether there is any deficiency of service on part of the opposite parties 1 to 3 as alleged by the complainant? If so, to what extent, the complainant is entitled for the reliefs as prayed for?

 

POINT:

10.              The learned counsel for the complainant argued that, there is a clear deficiency of service on the part of the opposite party No.1, the financier of the mobile phone and with the instructions of the opposite party No.1 he purchased CPP FONE Safe Classic membership for Rs.2499/- and provide protection against the accidental loss and theft. Since the complainant is FONE Safe Classic Subscriber all the risks are protected under the group policy i.e. HDFC taken by opposite party No.2 and opposite party No.2 became a holder of the policy and he is insured and opposite party No.3 is insurer.

11.       The learned counsel further argued that, on 24.06.2017 at about 3:30PM while complainant is charging the mobile, un-known persons entered into his house stole the mobile. The complainant also lodged a complaint to S.H.O. Alipiri Police Station to that effect. Alipiri Police Station issued a receipt No. 371/2017. The complainant counsel further argued that he informed regarding the theft of the Smart Phone through E-mail to opposite party No.2 on 26.06.2017, 29.06.2017 and also 02.07.2017 after that the opposite party No.2 gave a reply by way of E-mail  to the complainant and sent a claim form to the complainant and asked to fill-up the claim form through E-mail on 19.08.2017 and after that the opposite party No.2 sent another mail to the complainant on 20.08.2017 asked the complainant that the opposite party No.2 is required documents namely FIR, Original Mobile Bill, Photo ID, Cancellation cheque after that the complainant sent the same through registered post to opposite party No.2 on 05.08.2017 and opposite party No.2 received the same but opposite party No.2 has neither complied nor replied the same. The learned counsel further argued that opposite parties 1 to 3 not settle the claim and it amounts to deficiency of service and caused mental agony to the complainant.

12.          Opposite party No.1 counsel argued that, there is no Bajaj Fin Service Limited this complainant has availed various consumers durable loans from Bajaj Finance Limited. Bajaj Fin Service Limited is the holding company of Bajaj Finance Limited and both are separate entities. The learned counsel further argued that it is true the complainant has purchased a Mobile Phone from dealer/manufacturer and also had availed a loan from the opposite party No.1 for Rs. 36,900/- in the form of monthly installments (EMI) and paid       Rs. 3690/- for a contract period of ten months. The complainant has paid three EMI’s in advance the balance EMIs for seven months is to be paid on second date of every month. The complainant was a chronic defaulter towards payments of the installments. The complainant entered in to settlement with opposite party No.1 and paid Rs.17,736/- in cash on 31.12.2018 and the said loan account was closed and on 26.06.2017 the claim request was received by the complainant that is mobile stolen by unknown persons and the same was informed to the opposite party No.2 which was not taken in to consideration as membership was already cancelled on 21.06.2017 and claim request was for loss of mobile phone which is not covered under FONE Safe Classic as per the terms and conditions of the certificate of insurance. So the opposite party is not liable to pay any compensation to the complainant.

13.          The opposite party No.2 counsel did not argue orally before this Commission but his written arguments are taken into consideration as oral arguments. The counsel for the opposite party counsel admitted that the complainant voluntarily took membership on 20.03.2017 and valid till 19.03.2018. It is pertinent to mention that the mobile phone of complainant was financed by opposite party No.1. However on 21.06.2017, the opposite party No.1 instructed to opposite party No.2 to cancel the membership of the complainant and suspend all the benefits appended thereto. Opposite party No.2 is bound by the instructions of the opposite party No.3. The version of opposite party No.2 is confusing about following the instructions of opposite party No.1 and 3. Opposite party No.2 cancelled the membership of the complainant acting on the instructions of the opposite party No.3. Subsequently after cancellation of this membership complainant mailed to this opposite party No.2 about the theft of the mobile on 24.06.2017 as such claim of the complainant is invalid and cannot be entertained by the opposite party insurance.

14.          Opposite party No.3 counsel argued that this complainant voluntarily entered into the membership on 20.03.2017 and it is valid till 19.03.2018 pertinent to the mobile phone of the complainant was financed by opposite party No.1 and opposite party No.2 provided protection against the accidental loss of the smart phone and all the risks are protected under Group Policy by this opposite party. So opposite party No.2 is insured and this opposite party No.3 is insurer and further argued that the complainant lost his mobile on 24.06.2019 at 3:30PM while it is in charging in his house and unknown persons entered into his house and stolen the cell phone. The General Condition No.4 under the policy reads about the accidental (liquid damages) damages. The complainant was issued welcome kit which apart from the policy copy and conditions also included a guide to the FoneSafe Class advantage, which clearly states that the said policy only provides protection against accidental and liquid damage further the policy terms also gives an elaborate list of exclusion under the policy. The first exclusion reads as loss or theft of your equipment will not cover under the policy and that the complainant cannot not claim any damage from this opposite party No.3.

15.         Ex:A1 is photo copy of Invoice/Credit bill for Rs.36,900/- bearing No.SI/TPT2/3359 issued by Lot Mobile Pvt. Ltd., in favour of the complainant dt: 20.03.2017. Ex:A2 is photo copy of Insurance Policy issued by the HDFC ERGO in favour of the complainant. Ex:A3 is photo copy of the FONE Safe (CPP) Membership No.IM0409552 issued by opposite party No.2 in favour of the complainant dt: 23.03.2017. Ex:A4 is receipt bearing No. 337/2017 issued by the SHO, Alipiri PS in favour of the complainant regarding to the theft of the smart phone dt: 25.06.2017.  Ex:A5 is FoneSafe Claim Form sent by the opposite party No.2 to the complainant through E-Mail dt: 19.08.2017. Ex:A6 is opposite party No.2 asked the complainant to send required documents for settlement of claim through E-Mail. Ex:A7 is the complainant sent a registered postal cover to the opposite party No.2 along with documents, dt: 05.09.2017. Ex:A8  is Postal Authorities issued acknowledgment of opposite party No.2 dt: 05.12.2017. Ex:A9 is legal notice issued by the complainant to the opposite parties No.1 to 3 along with postal receipts dt: 07.01.2019. Ex:A10 is returned postal cover of opposite party No.1 dt: 10.01.2019 along with acknowledgment due dt: 11.01.2019.

16.          On behalf of the opposite party No.1 Ex:B1 is true copy of BAJAJ FINSERV Statement of Loan Account bearing Account No. 442DPF36837430 along with Loan Financial Summary as on 03.09.2019. Ex:B2 is the true copy of the certificate of Insurance (FoneSafe (CPP) Membership No. IM0409552) dt: 23.03.2017. On behalf of the opposite party No.3 Ex:B3 and Ex:B4 are photo copies of FoneSafe Classic advantage CPP guide along with Most Important Terms and Conditions (MITC) for complainant’s CPP FoneSafe Classic Membership (Purchased and financed through Bajaj Finserv Limited(‘BFL’)).

17.           In respect of deficiency of service it seems that opposite party No.1 and opposite party No.2 has no right to cancel the membership without the consent of the complainant as membership starts from 20.03.2017 to 19.03.2018 then how it is going to be cancel on 21.06.2017 without the consent of the complainant. An opportunity is not afforded before cancellation and reasons for cancellation are not stated. This opposite party No.1 and opposite party No.2 are jointly and severally liable for cancellation of the membership without the consent of the complainant. According to CPP FONE Safe membership cancellation every right is reserved to the member not to the provider. Every right to cancel the membership at any time during the period of agreement is there for the member. It clearly shows that the CPP membership cannot be cancelled without the consent of the member. Without consent how opposite party No.1 and opposite party No.2  can unilaterally cancel the membership and before cancellation of membership it is mandatory to give notice to the member stating for what reason member’s membership is cancelled. So there is clear deficiency of service on part of the opposite party No.1 and opposite party No.2 as opposite party No.2 clearly stated that in his written arguments and written version as with the instructions of opposite party No.1 only this opposite party No.2 cancelled the membership. So both are jointly and severally liable to pay Rs.20,000/- towards deficiency of service.

18.         Regarding opposite party No.3 deficiency of service it shows that there is no deficiency of service on part of the opposite party No.3 as it is a group insurance in that group insurance policy which clearly states that the said policy only provides protection against accidental and liquid damage. Further the policy terms also gives an elaborate list of exclusion under the policy. The first exclusion reads as loss or theft of member’s equipment. So opposite party No.3 is not liable to pay any of the damages to the complainant. The complaint is dismissed against the opposite party No.3.

19.         In view of the above circumstances, the material available on record, this Commission is of considered opinion that the complaint can be partly allowed.

20.        In the result, the complainant is partly allowed. The opposite parties 1 and 2 are directed to pay Rs.20,000/- (Rupees twenty thousand only) for the deficiency of service. They are jointly and severally liable. The amount shall be paid within forty five (45) days from the date of this order. Complaint against opposite party No.3 is dismissed. Both parties shall bear their own costs.

             The delay in the disposal of the complaint occurred due to the vacancy in the posts of President and Members and as there was no quorum.

            As per the President:-  Perused the record and the decision. I fully agree with the decision of the learned woman member who thoroughly discussed all the factual and legal aspects.

            Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by us in the Open Commission this the 03^rd day of June, 2022.

           Sd/-                                  Sd/-                                            Sd/-

(Smt.T.Sneha Latha)    (Sri. N.Sasidhara Reddy)       (Sri. Achuta Parthasarathy)

  Woman Member                     Member                                    President

 

APPENDIX OF EVIDENCE

 

witnesses examined on behalf of complainant

 

PW-1: Sri K. Hemadri, S/o. K. Rajarathanam @ Raja Rao (Chief Affidavit filed).

 

witnesses examined on behalf of opposite parties

 

RW-1: Sri M. Aravind, S/o. M. Sudharshan

                                             (Chief Affidavit filed by the Opposite Party No.1).

RW-2: Sri Gagan Chawla, Director Finance.

                                             (Evidence Affidavit filed by the Opposite Party No.2).

RW-3: Sri Aneesh Bhaskaran, S/o. Late M.V. Bhaskaran

                                             (Chief Affidavit filed by the Opposite Party No.3).

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

 

Exhibits (Ex.A)	Description of Documents
	Photo copy of Invoice/Credit Bill for Rs.36,900/- bearing No.SI/TPT2/3359 issued by Lot Mobile Pvt. Ltd., in favour of the complainant (Original Invoice sent to Opp. Party No.2 as he required). Dt: 20.03.2017.
	Photo copy of Insurance Policy issued by the HDFC ERGO in favour of the complainant (Served Copy).
	Photo copy of Fone Safe (CPP) Membership No.IM0409552 issued by Opp.Party No.2 in favour of the Complainant (Served Copy). Dt: 23.03.2017.
	Receipt Book bearing No. 337/2017 issued by the SHO, Alipiri PS in favour of the complainant regarding to the theft of the smart phone (Original submitted to the O.P.No.2). Dt: 25.06.2017.
	FoneSafe Claim Form sent by the Opp. Party No.2 to the Complainant through E-Mail. Dt: 19.08.2017.
	Opposite Party No.2 asked the Complainant send a required documents for settlement of claim through E-Mail.
	The Complainant sent a Registered Postal Cover to the Opp.Party No.2 along with documents. Dt: 05.09.2017.
	Postal Authorities issued Acknowledgement of Opp. Party No.2. Dt: 05.12.2017.
	Legal Notice issued by the complainant to the Opp.Parties No.1 to 3 along with postal receipts. Dt: 07.01.2019.
	Returned Postal Cover of Opp.Party No.1, Dt: 10.01.2019 along with Ack. Due. Dt: 11.01.2019.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES

 

Exhibits (Ex.B)	Description of Documents
	True copy of BAJAJ FINSERV Statement of Loan Account bearing Account No. 442DPF36837430 along with Loan Financial Summary as on 03.09.2019 (Loan Transaction Details between 27.03.2017 to 03.09.2019).
	True copy of the Certificate of Insurance (FoneSafe (CPP) Membership No.IM0409552). Dt: 23.03.2017.
3 and 4.	Photo copy of FoneSafe Classic advantage CPP guide along with Most important Terms & Conditions(MITC) for your CPP FoneSafe Classic Membership(Purchased and financed through Bajaj Finserv Limited(‘BFL’)).

 

 

                                        Sd/-

                                                                                                           President

 

 

Copies to:  1) The Complainant, 

                 2) The Opposite parties 1 to 3.

 

 

*Shaik. Rehana Begum.