BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.462 of 2020
Date of Instt. 22.12.2020
Date of Decision: 16.06.2023
Shri Sangharsh Kumar @ Sangharsh Roshan son of Shri Roshan Lal, resident of House no. 91/7A, Bhargav Nagar, Jalandhar.
...........Complainant
Versus
1. CPP Claims Management, D-139, Okhla Industrial Area, Phase-I, New Delhi 110020 through its Authorized Secretary.
2. Bajaj Finserve, SCF-25 and 26, Ground Floor, Urban Estate Phase-I, Jalandhar through its Authorized person.
3. Oppo Service Centre, Boshion Services Pvt. Ltd., 464-R, First Floor, Model Town, Jalandhar.
4. M/s Raja Mobile House, H.O. 501, New Model House, B.O. B-38,/3634, Tej Mohan Nagar, Basti Sheikh Road, Jalandhar.
5. HDFC Ergo General Insurance Co. 6th Floor, Leela Business Park, Andheri-Kurla Road, Andheri East Mumbai 400059 through its Managing Director.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Kanwaljit Singh, Adv. Counsel for the Complainant.
Sh. Lovkesh Gupta, Adv. Counsel for OP No.1.
Sh. Gurcharan Singh, Adv. Counsel for OP No.2.
Sh. Hemant Kalia, Adv. Counsel for OP No.3.
OP No.4 withdrawn.
Sh. Raman K. Sharma, Adv. Counsel for OP No.5.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the OP No.1 is the Insurer, OP No.2 is the Financer, OP No.3 is the Authorized Service Centre of OPPO Mobile Phone and OP No.4 is the dealer from whom, the complainant purchased the mobile phone. The OP No.1 has its insurance contract with the OP No.5. The complainant purchased Mobile Phone Make OPPO Reno 2F 8+128 GB IMEI No. 860527045096956 from the OP No.4 on 17.2.2020 vide Invoice No. B/19-20/2097 dated 17.2.2020 on payment of Rs.19,500.00. The company has Insurance tie up with the OP No.1, as such, the OP No.2 got insured the said mobile phone from the OP No.1 against its full value vide Insurance Policy No. IM847496 starting from 17.2.2020 till 15.2.2021 and the complainant paid a sum of Rs. 1,924.00 as Insurance premium. On 28.7.2020 at about 10.30 AM, the complainant was climbing down from the stairs and suffered an injury, whereby, the mobile phone kept by the complainant in his hands fell down and it was damaged. The complainant immediately approached the OP No.2, who advised the complainant to contact the OP No.1 through their Toll Free No. 1860-258-3030. The complainant contacted OP No.1 who advised the complainant to get the mobile repaired only from Oppo Service Centre and to get quotation. Accordingly, the complainant visited the office of the OP No.3 which quoted the charges as Rs.9,457.00. The complainant handed over the damaged mobile phone to the OP No.3 for repairs on 28.7.2020 itself. On 29.7.2020, the OP No.3 returned the mobile phone after repairs and also returned the damaged part of the mobile phone. The complainant paid Rs.9,457.00 in cash to the OP No.3. The complainant approached the OP No.2 for claim of the insured mobile phone which prepared the claim file. As per requirements of the opposite party No.1, the complainant submitted original bill of mobile phone, job work cum bill issued by the OP No.3, consumer claim form. A cancelled cheque was also demanded from the complainant, which the complainant supplied. Alongwith cancelled cheque, the complainant also tendered an affidavit showing that Sangharsh Kumar and Shangharsh Roshan were same persons. The complainant sent the documents through Courier on 8.8.2020 to the OP No.1 alongwith damaged part of the mobile, returned by the OP No.3 after repair of the mobile phone. OP No.1 also demanded an affidavit from the complainant with regard to his name as Sangharsh Roshan and Sangharsh Kumar, which the complainant sent through courier on 1.9.2020. The OP No.1 again demanded Statement of incident, which the complainant completed and sent on 1.9.2020. In this manner, the complainant completed all the conditions for getting the insurance claim. The OP No.1 had been putting off the complainant with fake objections and again demanded affidavit with regard to name of the complainant and also asked the complainant to fill in the time of occurrence in Statement of Claim. The complainant completed the formality and dispatched the same on 21.9.2020. Till date, the complainant has not received any intimation of claim amount from the OP No.1. The complainant approached the OP No.2, number of times for settlement of his claim, but the OP No.2 always put off the complainant on the pretext that it was the duty of OP No.1 to reimburse the claim amount and they had no concern with the same. The OPs have made a fool of the complainant by not reimbursing the claim amount to the complainant despite completion of all the formalities by him. The complainant paid a sum of Rs.9,457.00 for the repair of his mobile phone, which amount has not been reimbursed to the complainant. The act of the OPs in not disbursing the insurance claim is clear cut a deficiency and negligence in service and tantamount to unfair trade practice. The complainant has suffered a lot of mental tension, harassment, financial loss etc. and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a sum of Rs.9457/- alongwith interest @ 18% per annum from 29.07.2020 paid by the complainant to the OP No.3 as charges for repairs of the mobile phone. Further OPs be directed to pay damages to the tune of Rs.50,000/- alongwith interest @ 18% per annum from 29.07.2020 till its realization and cost of litigation also.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that at the outset it is clarified that the answering OP is not an insurance company. In fact, Mobile Phone of the Complainant was insured by OP No.5. The role of answering OP was limited to that of a mere facilitator. The answering OP qua facilitator got the Mobile Phone of Complainant insured by OP No.5 insurance company. As such, claims if any, were to be processed and settled by OP No.5 and not the answering OP. It is further averred that the mobile of the Complainant having been insured by OP No. 5 under Policy No. 2999202769521000036, all claims are to be initiated with the OP No.5. The Complainant availed ‘Fonesafe Classic T2 Plan’ membership of the answering OP by paying meager sum of Rs.1,924/- through OP No.2. By availing membership of answering OP, the Complainant was provided with benefits like F-Secure Device Security protecting device, Live TV & Movie Subscription, et cetera. The Complainant was also enrolled into add-on group insurance policy vide which insurance cover to Mobile Phone of Complainant was provided by OP No. 5. It is further averred that after having used the mobile for almost 4 months, the Complainant intimated answering OP regarding the alleged damage to mobile phone. The answering OP, immediately, asked the Complainant to furnish requisite documents under Policy Terms and Conditions. The OP No.5 was reportedly constrained to reject claim of the Complainant due to non-submission of Name Mismatch Affidavit in English language. Difference in name is a serious anomaly and a gross violation of KYC norms set by the Government to deter payments falling into wrong hands. The answering Opposite Party being a mere facilitator received documents from the Complainant and forwarded the same to the OP No.5 for settlement of claim. It is further averred that upon revelation of true and correct facts, the instant complaint deserves outright dismissal with exemplary costs as the same is frivolous, oppressive and devoid of merit. The Complainant has not approached the Commission with clean hands and has willfully concealed material facts to make out a case against the answering OP. The instant complaint is textbook example of frivolous and vexatious complaint envisaged under Law. Complaint like this is filled with ravenous motive causing unnecessary disruption in the operation of commerce in India. The Complainant is trying to manipulate and misuse the benevolent provisions of Consumer Protection Act to extract huge sums from the answering OP. On merits, the factum with regard to purchase of the mobile by the complainant from the OP No.2 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that complaint of the complainant is liable to be dismissed for mis-joinder of necessary parties. It is further averred that the complaint against answering OP filed by the complainant under Section 35 of the Consumer Protection Act, 2019 is false, frivolous and filed with malafide intention and based on wrong information and not maintainable and liable to be rejected with costs. The Complainant has not come with the clean hands and has suppressed the material facts from this Commission. The Complainant has no reason to file this complaint. The contents of the complaint are denied by the OP. For all these reasons, the complaint is not maintainable and liable to be rejected with costs. It is further averred that the complaint filed by this Complainant under Section 35 of the Consumer Protection Act, 2019 is not maintainable against this OP, as this OP is not a necessary party to the captioned complaint. It is further submitted that the OP is a financing company providing loans to all the needy persons, thus issuance of insurance policy or the acceptance/rejection of the insurance claim solely depends upon the insurance partner/company i.e. OP No: 1, 3 and 5 and not this OP and hence the OP should not be held accountable for any of the actions taken by the OP No: 1, 3 and 5 towards the insurance claim of this Complainant. It is only after the receipt of the complaint copy along with summons that this OP came to know about the damage caused to the Mobile Phone purchased by the complainant from the OP No: 5 i.e. dealer/manufacturer. Upon further enquiry from CPP assistance Services Private Limited ("Policy Holder"), this OP came to know that the insurance claim of the Complainant was rejected due to non-submission of correct name. As per the records with the OP No:1, 3 and 5, the complainant had intimated about the damage on 28.07.2020 and the documents were sent/ received for the claim registration on 10.08.2020 but the name appearing on the Cancelled Cheque was Shangharsh Kumar S/o Roshan Lal & name appearing on policy issued by the OP No: 1, 3 and 5 was Mr. Sangharsh Roshan. That the OP submits that due to the mismatch in the name, the affidavit was required by the complainant, since there was no response received by the complainant to the OP No: 1, 3 and 5, the decision to reject the claim was taken on 09.11.2020. The OP submits that the Certificate of Insurance has also been duly sent in the registered Email ID and Mobile No. on 11th April 2020 at 09:01 AM vide Contact number: 9888269950 and Email ID: sangharsh115@gmail.com. The OP submits that the COI has clearly mentioned about the reasons and conditions wherein the agreement can be cancelled, which is mentioned in page No: 6 under Point No: 3 clause named as Exclusions and under Point No:7. It is further averred that the Complainant with malafide intention has not disclosed all correct factual details in the Complaint as also with intention to get sympathy of this Commission, the Complainant has suppressed material facts from this Commission. It is therefore, humbly submitted that the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of any merits and liable to be dismissed in limine. The Complainant has not approached before this Commission with clean hands and suppressed the material facts hence, the captioned complaint is liable to be dismissed. The complaint preferred by the Complainant is not maintainable against the OP both in fact and law. It is submitted that the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of any merits. The complaint is purposive, harassive and motivated in nature and is liable to be dismissed with exemplary costs. The instant complaint under objection is full of suppression of material facts and is liable to be rejected in limine. The complainant has no locus-standi to file the present complaint against the answering OP. On merits, the factum with regard to purchase of the mobile phone as well as insurance of the same is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the answering OP as there is no deficiency in service on its part. It is further averred that the complainant is stopped by his act and conduct to file the present complaint. The present complaint is bad for non-joinder of necessary parties. On merits, the factum with regard to purchase of the mobile by the complainant is admitted and it is also admitted that the OP No.3 is an authorized service centre of Oppo Mobiles and OP No.4 is dealer and it is also admitted that the OP No.3 repaired the mobile set and received Rs.9475/- as repair charges, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
5. Complaint against OP No.4 withdrawn by the complainant, vide his separate statement.
6. OP No.5 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant has filed and continued with the present complaint with an intention to waste the precious time of this Commission and also with a malafide intention to extract unjust money from the answering respondent. It is submitted that the claim of the complainant was closed on the ground that the complainant had failed to provide an essential document meaning thereby that the present complaint is pre-mature. However, on submission of the same, the answering respondent is ready to settle the claim of the complainant as per the terms and conditions of the policy and the said fact has also been communicated to the complainant. It is further averred that the complainant had purchased the mobile phone RENO2F8GBCPH1989 from OP No.4 on 17-02-2020 which was insured with the answering Insurance Company with effect from 17-02-2020 to 15-02-2021 strictly subject to the terms and conditions of the policy and the name of the insured was mentioned as Sangharsh Roshan. During the currency of the policy, the complainant lodged one complaint with regard to the damage to the handset and during the processing of the claim, it was observed that as per the submitted documents i.e. Consumer Claim Form, Tax Invoice and the Policy etc. name of the complainant is spelled as "Sangharsh Roshan" whereas as per the Aadhaar Card, Electronic Equipment-Claim Form name of the complainant is spelled as "Sangharsh Kumar", further as per the cheque submitted by the complainant, his name is spelt as ‘Shangharsh Kumar’. In view of this discrepancy the complainant was asked to clarify about the name of the insured. That difference in name is a serious anomaly and gross violation of KYC norms set by the Government to deter payments falling to wrong hands. It is further averred that the claim of the complainant was not denied by the answering respondent rather the same was closed due to non-submission of requisite documents. Had complainant failed to submit certificate towards mis-match of the name and claim was not repudiated but was closed on account of deficiency on the part of complainant himself. On submission of the same, the answering respondent is ready to settle the claim of the complainant as per the terms and conditions of the policy and the said fact has also been communicated to the complainant, but, the complainant has rejected the offer of settlement with the intention to extract to more money than what he is entitled to. It is further averred that the Insurance Company including this answering respondent is the custodian of public money and thus it is incumbent upon this answering respondent to ensure that the claims which are intimated are genuine and justified in all aspects, so as to avoid any misuse of public money. For this reason, the documents were sought in present claim and as such it was the duty of the complainant to provide all documents/clarifications to the satisfaction of the answering respondent, however, the complainant has failed to provide the relevant document. It is reiterated that the claim of the complainant was never rejected but was closed due to non-receipt of documents from the complainant. For this reason, the complaint lacks any cause of action and is liable to be dismissed. It is further averred that the complaint does not qualify the ingredients of a valid complaint, because there is not a single allegation which leads the answering respondent to either deficiency of service, hence, as such the present complaint deserves to be dismissed on this ground alone. It is further averred that the complainant has no cause of action to file the present complaint. It is further averred that the complainant is estopped from filing the present complaint by his own acts, conduct and omission. On merits, the factum with regard to purchase of the mobile is admitted and the facts regarding lodging of the claim by the complainant is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
7. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
8. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
9. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.
10. The complainant has proved on record that he purchased mobile phone make OPPO Reno 2F 8+128 GB from OP No.4 on 17.02.2020, vide Invoice Ex.C-1. This fact has been admitted also that he purchased the mobile phone on 17.02.2020. The complainant has alleged that the OP No.1 has a insurance contract with OP No.5 and OP No.2 got insured mobile phone from OP No.1 against full value, vide insurance policy No.IM847496 valid from 17.02.2020 till 15.02.2021. The copy of insurance policy has been proved as Ex.C-2. The complainant has further alleged that on 28.07.2020 at 10:30 AM, the phone of the complainant got damaged accidentally as the mobile phone fell down from the stairs when he was climbing down from the stairs. The same was got repaired and the complainant paid Rs.9457/- vide Ex.C-3. It is not disputed that he lodged the claim, which has not allegedly been settled by the OP No.1. It has been alleged by the complainant that he had sent all the documents alongwith the affidavits to the OP No.1, as were demanded by them from time to time, but despite that his insurance claim has not been settled.
11. The OP No.1 on the other hand has alleged that the complaint qua him is not maintainable as he is just a facilitator and it has been admitted by OP No.1 that they had received the documents from the complainant which were forwarded to the OP No.5 for settlement of the claim, whereas OP No.5 has alleged that since there was a variation in the name of the complainant in the Invoice, Claim Form, Aadhar Card, Electronic Equipment Claim Form, therefore the complainant was asked to clarify the anomaly, but the complainant failed to do so, therefore the claim could not be settled, but they are ready to settle the claim, once the matter is clarified.
12. Perusal of the documents produced and proved by the complainant shows that the complainant has furnished affidavits Ex.C-4 to Ex.C-6 affirming on oath that Sangharsh Kumar and Shangharsh Roshan are the names of one and the same person. The complainant has proved on record the Consumer Claim Form Ex.C-7. He has also produced on record the format for statement of incident Ex.C-8 and Ex.C-9. The receipts of courier Ex.C-10 to Ex.C-12 showing that all the documents were sent to the OP No.1 through courier. This fact has been admitted by the OP No.1 also that they had received the documents from the complainant. The insurance policy has been proved by the complainant as well as OP No.2 as Ex.C-2/OP-2/3. This clearly shows that the CPP Assistant Services have informed the complainant about his membership details-cum-sale performa. The OP No.1 CPP Claims Management cannot be said to be the mere facilitator. It has been proved that they themselves had issued the Welcome Letter to the complainant and they have also issued the membership number and each and every detail to the complainant vide the documents Ex.C-2/OP No.2/3. No document has been filed by the OP No.1 or OP No.5 to show that there was any separate insurance policy with the OP No.5. These things clearly prove that the OP No.1 has direct contact with the OP No.5 and got the mobile of the complainant insured through OP No.5. The OP No.5 has not produced on record any document to show that they have ever demanded the affidavit vide any letter written to the complainant or through CPP i.e. OP No.1 seeking the clarification rather the complainant has filed and submitted the affidavits clarifying the anomaly regarding his name. All the documents were supplied to the OP No.1 and it was the duty of the OP No.1 to get the claim settled, but merely sending the documents to the OP No.5 is not sufficient, this is deficiency in service and unfair trade practice on the part of the OP No.1 and OP No.5. Thus, the complainant is entitled for the relief.
13. In view of the above detailed discussion, the complaint of the complainant is partly allowed qua OP No.1 and OP No.5 and dismissed against OPs No.2 and 3. The complaint against OP No.4 has already been withdrawn by the complainant. The OP No.1 and OP No.5 are directed to pay a sum of Rs.9457/- i.e. repair charges paid to OP No.3 by the complainant, alongwith interest @ 6% per annum from 29.07.2020 till its realization. Further OP No.1 and OP No.5 are directed to pay a compensation including litigation expenses of Rs.8000/- for causing mental tension and harassment to the complainant. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
14. 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 Jaswant Singh Dhillon Dr. Harveen Bhardwaj
16.06.2023 Member President
