BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.322 of 2016
Date of Instt. 25.07.2016
Date of Decision:18.10.2017
Hemlata age 28 years wife of Aashish Sarangal Daughter of Puran Chand resident of House No.6 Ward No.4 Dr. Ambedkar Colony Behrampur Road Dina Nagar Distt Gurdaspur through her attorney Jai Nandan son of Puran Chand resident of House No.6 Ward No.4 Dr. Ambedkar Colony Behrampur Road Dina Nagar, Distt. Gurdaspur.
..........Complainant
Versus
1. Chadha Mobile House Pvt. Ltd through its managing director Head Office Chadha Mobile House Phagwara Gate Near Bhagat Singh Chowk, Jalandhar.
2. Syska Gadget, 4th Floor, Sapphire Plaza, Plot No.80, S. No.232, New Airport Road, Near Symbiosis College, Sakore Nagar, Viman Nagar, Pune Maharastra-411014.
3. Service Centre IPICK SOLUTION INDIA PVT. LTD., Model Town, Jalandhar through its owner Manoj.
..….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. Rajesh Chopra, Adv Counsel for the complainant.
OP No.1 exparte.
Sh. Vishal Chaudhary, Adv Counsel for the OP No.2.
OP No.3 given up.
Order
Karnail Singh (President)
1. This complaint is presented by the complainant through her attorney Jai Nandan. The brief facts of the complaint are that the complainant has purchased Apple Iphone No.352091072609921 on 21.08.2015 from the OP No.1, for the consideration of Rs.46,001/- and the complainant got insured the said Apple Iphone on 21.08.2015 from the OP No.2 i.e. Insurance Company and complainant paid Rs.1999/- as premium of the insurance. On 16.02.2016, at about 07:40 pm, the complainant alongwith her brother, Jai Nandan, was going on Activa Scooter, Jai Nandan brother of the complainant was driving Activa Scooter and the complainant was sitting behind her brother on the Activa Scooter and the complainant kept the Apple Iphone in her pocket of jacket and an over speeding bike, which was driven by a boy struck his motocycle against the Activa Scooter and resultantly, the complainant and Jain Nandan, brother of the complainant fallen on the road and got injuries and the Apple Iphone of the complainant stopped working as the display of the mobile phone was broken in the said accident. The complainant claimed insurance of Apple Iphone from OP No.2 on 16.02.2016 online and OP No.2 told the complainant on phone to approach the OP No.1 and 3. Then the complainant on 17.02.2016, went to the office of OP No.1 and 3 for replacing/repairing the Apple Iphone but the OP No.1 and 3 refused to repair and replace the Apple Iphone and told the complainant that the Apple Iphone is damaged and the complainant can claim insurance from OP No.2.
2. The complainant filed a claim to the OP but the OP No.1 to 3 refused to replace the Apple Iphone and refused to pay the insurance claim of Rs.48,000/- to the complainant on 25.06.2016, whereby the cause of action accrued to the complainant for filing the complaint because the OP refused to replace the said mobile phone and as such, there is a negligence on the part of the OP and accordingly the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OP No.1 to 3 be directed to replace the new Apple Iphone in place of broken/damaged Iphone or in alternative refund the price of the mobile i.e. return Rs.48,000/- and OPs be further directed to pay the interest on the price of the mobile phone and also pay compensation of Rs.10,000/-.
3. Notice of the complaint was given to the OPs but attorney of the complainant got withdrawn a complaint against OP No.3 by giving a separate statement in the Forum. OP No.1 despite service, failed to appear and ultimately OP No.1 was proceeded against exparte, whereas OP No.2 appeared through his counsel and filed written reply and contested the complaint by taking preliminary objection that the present complaint is not maintainable in the present form and further alleged that the present complaint is time barred and no cause of action was ever accrued to the complainant to file the present complaint and even the complainant has suppressed the material facts from the Forum. In realty, as per information available with the answering OP, the complainant has purchased the mobile and got his handset insured with the answering OP and after approximately 6 months with the negligence of the complainant, the handset was fell down and damaged and the screen of the handset was cracked and handset was stopped working. It is further submitted that as per the terms of the policy of the answering OP, when the damage is caused by the negligence of the complainant, then it was not covered under the insurance policy. It is also necessary to mention here that authorized agent of the answering OP told the complainant that only those claims will be paid by the answering OP, which falls under the terms and conditions of the answering OP. In the present complaint, the complainant negligently and intentionally disclosed the wrong facts. The complainant disclosed that the customer was driving Activa Scooter and she had worn a jacket and handset was in her jacket and from front side, one bike dashed to her Activa and due to which Activa was got unbalanced and she fell down and the handset also fell down from his pocket and handset got damaged. When the answering OP enquired about the accident, then came to know that the customer was not driving Activa rather brother of the complainant was driving Activa and she was sitting behind her brother and the driver was not having any driving license and the complainant is having the driving license of LMV and not having the license of two wheeler and this was the main reason for rejection of the claim of the complainant. On merits, it is admitted that the complainant has purchased a mobile phone and got it insured from the answering OP but the remaining allegations as made by the complainant are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
4. In order to prove the case of the complainant, the attorney of the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex.C1 to Ex.C4 and some photostat copy of the documents Mark-A to Mark-D and then closed the evidence of the complainant.
5. In order to rebut the evidence of the complainant, counsel for the OP No.2 tendered into evidence affidavit Ex.OP/A and closed the evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. After analyzing the over all factors, it reveals that the complainant has categorically established that he purchased a mobile phone from OP No.1 on 21.08.2015, for a sum of Rs.46001/- and the said mobile phone was got insured by making a payment of Rs.1999/- as premium of the insurance from OP No.2. The factum in regard to purchase of the mobile is very much established from the invoice Ex.C3, no doubt the complainant has not brought on the file any appropriate insurance policy but placed on the file only one card Ex.C4 alleging that it is insurance policy issued by the OP No.2, but this factum has been admitted by the insurance company i.e. OP No.2 in its reply. So, there is no doubt rather the factum in regard to purchase an insurance of the mobile by the complainant after making a payment of premium of Rs.1999/- is admitted fact by the insurance company i.e. OP No.2.
8. It is also established on the file by the complainant that the said mobile was lying in the pocket of the complainant while she was traveling on Activa Scooter alongwith her brother, who was driving the Activa Scooter and all of sudden, one motorcycle came from opposite side, dashed with the Activa Scooter of the complainant and whereby the complainant and her brother fell down and they got injuries on their persons and mobile was also damaged due to that accident and thereafter, she filed a claim to OP No.2, but the same was rejected by the OP, vide letter Mark-B. The plea taken by the OP for rejection of the insurance claim of the complainant is only that the damage caused to the mobile phone is due to negligence of the complainant and whenever any damages caused to negligence of the customer, then the said product is not covered under the insurance policy as per the terms and conditions, the negligence of the complainant is alleged by the OP, simply on the ground that the Activa Scooter was driven by the brother of the complainant at the time of accident and he was not having a driving license and due to this reason, the claim of the complainant is repudiated but this plea of the OP is not acceptable because the brother of the complainant is having a valid driving license and photostat copy of the driving license is produced on the file Mark-D, but the said driving license of the brother of the complainant is intentionally and deliberately ignored by the OP just to defeat the right of the complainant to get the insured amount of the damaged mobile. So, with these observations, we come to conclusion that the claim of the complainant is illegally rejected by the OP No.2, the complainant is claiming the replacement of the Apple Iphone or return of the price of the mobile i.e. Rs.48,000/-, but we think that the complainant got insurance of the said mobile and as such, the complainant is only entitled to get the insured amount of the said mobile, no doubt, the insured amount is not given in the insurance card Mark C4 but it is presumed that the insurance amount of the mobile is equal to the price of the mobile and original price of the mobile except the taxes whatsoever paid by the complainant, is Rs.42067/- as per invoice Ex.C2. So, accordingly, we find that the complainant is entitled for that amount with litigation expenses as claimed in the prayer clause.
9. In view of the above detailed discussion, the complaint of the complainant is partly accepted qua OP No.2/Insurance Company and accordingly, OP No.2 is directed to pay the insured amount of Rs.42067/-alongwith interest @ 9% per annum from the date of filing the complaint, till realization and OP No.2 is further directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. The complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
18.10.2017 Member President
