Haryana

Kurukshetra

CC/184/2019

Rajbir - Complainant(s)

Versus

Bajaj Finance Ltd - Opp.Party(s)

Mukesh Kumar

06 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA

 

                                                                    Complaint No.:    184 of 2019.

                                                                   Date of institution:         14.05.2019.

                                                                   Date of decision: 06.07.2022

 

Rajbir s/o Shri Niranjan Singh, r/o village and post office Kirmach, Tehsil Thanesar, District Kurukshetra.

                                                                                                …Complainant.

                                                   Versus

 

1. Bajaj Finance Limited, Branch Office at Sector-17, Kurukshetra, through its Branch Manager.
2. HDFC Ergo General Insurance Company Limited, Corporate Office 6^th Floor, Leela Business Park, Andheri-Kurla Road, Andheri (East), Mumabi-400059.

 

                                                                                      ...Respondents.

CORAM:   NEELAM KASHYAP, PRESIDENT.    

                   NEELAM, MEMBER.

                   ISSAM SINGH SAGWAL, MEMBER.           

 

Present:       Shri Mukesh Sharma, Advocate for the complainant.

                   Shri Shekhar Kapoor, Advocate for Opposite Party No.1.

                   Shri Atul Mittal, Advocate for Opposite Party No.2.

 

ORDER:

 

1.                This is a complaint under Section 12 of the Consumer Protection Act, 1986.

2.                It is alleged in the complaint that the complainant purchased one Oppo F-3 mobile phone from Balaji Communication, Kurukshetra for a total sum of Rs.20,000/- vide invoice No.S-21 dated 03.07.2017. For the purchase of said phone, he took Rs.13650/- on finance from OP No.1 and said phone was insured by OP No.1 from OP No.2. The complainant had paid seven installments of Rs.1999/- each, total Rs.13993/-. On 16.4.2018, said mobile was damaged and intimation in this regard was given to OPs No.1 & 2 on 17.04.2018. He provided all the requisite documents with OP No.1 and they assured that they will provide the replacement of the same, but they did not do so. Vide claim application dated 16.5.2018 the OPs neither replaced the mobile nor decided the claim. Having no another alternate, he served a legal notice dated 09.4.2019 upon OPs directed to replace the mobile or to release its cost price, but they failed to redress his grievance, which is an act of deficiency in service on the part of OPs, due to which, he suffered great mental agony, hardship and financial loss, constraining them to file the present complaint against the OPs.

3.                Upon notice of complaint, OPs appeared and filed their respective written statements.

4.                OP No.1 in its written statement raising preliminary objections regarding non-maintainability; jurisdiction; locus-standi and cause of action. It is further submitted that the complainant has not submitted the documents as required as per the claim process within the time limit and even OP No.2 sent a reminder message to the complainant. The OP No.2 has no role in approval or rejection of the claim, as the OP is only financer and the business of insurance. It is admitted that the complainant purchased the mobile and took loan for Rs.19990/- and paid Rs.5997/- in 10 months.

5.                The OP No.2 in its written statement raising preliminary objections regarding non-maintainability; jurisdiction; locus-standi and cause of action. It admitted providing the insurance policy to the mobile in question of the complainant. There was manufacturing defect in the mobile, so the dealer of said mobile was responsible. The terms of the policy are in the nature of the contract and their interpretation has to be made in accordance with the strict construction of the contract. There is no deficiency in service on the part of OPs and prayed for dismissal the present complaint.

6.                In support to support his case, complainant tendered affidavit Ex.CW1/A along with documents Ex.C-1 to Ex.C-16 and closed the evidence.

7.                On the other hand, OP No.1 tendered affidavit Ex.RW1/A along with documents Ex.R-1 & Ex.R-3 and closed its evidence. OP No.2 tendered document Ex.R-1 and closed its evidence.

8.                We have heard the learned counsel of the parties and carefully gone through the case file.

9.                Learned counsel for the complainant argued that the complainant purchased one Oppo F-3 mobile phone from Balaji Communication, Kurukshetra and took Rs.13650/- on finance from OP No.1 and said phone was insured by OP No.1 from OP No.2. On 16.4.2018, said mobile was damaged and intimation in this regard was given to OPs No.1 & 2 on 17.04.2018. He provided all the requisite documents with OP No.1 and they assured that they will provide the replacement of the same, but they did not do so.

10.              The learned counsel for OP No.1 argued that the complainant has not submitted the documents as required as per the claim process within the time limit and even OP No.2 sent a reminder message to the complainant. The OP No.2 has no role in approval or rejection of the claim, as the OP is only financer and the business of insurance. It is admitted that the complainant purchased the mobile and took loan for Rs.19990/- and paid Rs.5997/- in 10 months.

11.              The learned counsel for OP No.2 argued that there was manufacturing defect in the mobile, so the dealer of said mobile was responsible. There is no deficiency in service on the part of OPs and prayed for dismissal the present complaint.

12.              There is no dispute that the complainant purchased one Oppo F-3 mobile phone from Balaji Communication, Kurukshetra for a total sum of Rs.20,000/- vide invoice Ex.C-5 and got financed the same from OP No.1 vide documents Ex.R-2 & Ex.R-3. There is also no dispute that the said phone was insured by OP No.1 from OP No.2 vide insurance policy/cover Ex.R-1.

13.              The grievance of the complainant is that on 16.04.2018, the said mobile was damaged and intimation in this regard was given to OPs No.1 & 2 on 17.04.2018 by submitting all the required documents, but they neither replaced the mobile nor decided his claim, which is an act of deficiency in service on the part of OPs. On the other hand, learned counsel for the OPs has simply contended that the complainant failed to provide the requite documents with OP No.2, hence, claim could not be settled. But it is pertinent to mention here that the OPs failed to produce any documentary evidence on the case file, vide which, it can be gathered that which document(s) was/were not supplied by the complainant to them nor they produced any letter or reminder in this regard sent to the complainant to provide the same. Merely contending that the complainant had not provided the documents, without disclosing the particulars of that documents, even to the complainant, the OPs were not justified to reject the claim of the complainant on this very ground. So, this contention of the OPs has no force, hence, rejected.

14.              In the insurance policy Ex.R1 submitted by OP No.2, it is mentioned that “You will be covered under the above mentioned group insurance policy for a sum insured of up to the maximum of the Equipment purchase value for accidental damage (including liquid damage) of the smart phone or tablet or laptop during the policy period”. Since the mobile phone of complainant was damaged on 16.04.2018 during the existence of that insurance policy, therefore, as per above clause, the same covered under the policy in question, as such, OP No.2 was duty bound to pay the claim amount to the complainant, as per terms of the policy in question, but it did not do so, which amounts to gross deficiency in service on its part. 

15.              Now the question which arises for consideration is what should be the quantum of indemnification? In this regard, the relevant clause of insurance policy Ex.R1 reads as under:-

“Please note that in case of any claim under the policy, you will be paid the depreciated value of your Equipment which will be calculated after adjustment of compulsory deductible as per the rates specified below and applying depreciation on the invoice value at the rates as specified below based on the age of Equipment on the date of Incident.

Description rates:

                   Up to 6 months               -        10% 

                   6 months to 12 months  -        20%

                   18 months to 24 months           -        40%

 

16.              In the case in hand, the complainant purchased the mobile in question on 03.07.2017 and the same was damaged on 16.04.2018 i.e. after about nine months from its purchase, so it falls within 20% depreciation of the invoice value. The complainant purchased the mobile for a sum of Rs.20,000/- vide invoice Ex.C-5 and after deducting 20% depreciation amount from it i.e. Rs.4000/-, the balance comes to Rs.16,000/- (20,000-4,000), as such, OP No.2 is liable to pay Rs.16,000/- to the complainant for the damage of the mobile phone, along with compensation and litigations expenses for their act of negligence in services. So far as, the complaint filed against OP No.1 is concerned; it may be stated here that neither any specific allegations have been leveled by the complainant against OP No.1, nor it has been proved, therefore, complaint qua OP No.1, is liable to be dismissed.  

17.              In view of our above discussion, we partly accept the present complaint against OP No.2 and dismiss the same against OP No.1. We direct OP No.2 to pay Rs.16,000/-to the complainant, subject to deposition of old mobile phone with accessories, by the complainant with OP No.2. We further direct OP No.2 to pay compensation amount and litigation expenses to the tune of Rs.5,000/- to the complainant, for mental agony and physical harassment caused to him. OP No.2 is further directed to make the compliance of this order within a period of 45 days from the date of preparation of certified copy of this order, failing which, the total award amount of Rs.16,000/- shall carry interest @6% simple per annum, from the date of this order, till its actual realization, and the complainant shall also be at liberty to initiate proceedings u/s 25/27 of the Act, against OP No.2. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost, as per Rules. File be indexed and consigned to record-room, after due compliance.

Announced in open Commission:

Dated:06.07.2022.

    

                                                                                        (Neelam Kashyap)               

(Neelam)                    (Issam Singh Sagwal)                   President,

Member.                    Member.                                                  DCDRC, Kurukshetra.           
 

 

 

Typed by: Sham Kalra, Stenographer.