Delhi

West Delhi

CC/16/241

Sourabh - Complainant(s)

Versus

Croma - Opp.Party(s)

28 Sep 2018

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

                            GOVERNMENT OF NCT OF DELHI

  150-151, Community Centre C-Block, Janak Puri, New Delhi – 110058

 

                                                                                                              Date of institution: 29.03.2016

Complaint Case. No.241/16                                                                  Date of order: 28.09.2018

IN  MATTER OF

Sourabh Harit, WZ-686, Raj Nagar-1, Palam Colony, New Delhi-110045                                                                                                                                                                    Complainant

VERSUS

Croma Plot no-4, Soul City Mall, C/O Radisson Blue Hotel, Dwarka Sector-13, Delhi-78                                                                                                                                 Opposite party-1

Financial Heights (Gizmo help claims division), 607, Kirti Shikhar, District Centre, Janakpuri, New Delhi-110058

                                                                                                                           Opposite party- 2

The New India Assurance Co. Ltd., Parliament Street, Above Bank of Tokyo, Connaught Place, New Delhi-110001                                                                                     Opposite party- 3

 

ORDER

PUNEET LAMBA, MEMBER

               Brief relevant facts as stated by Mr. Sourabh Harit herein after referred as the  complainant are that he  purchased one mobile handset of make and model “Samsung Galaxy note 3 neo” from Croma herein after referred as the opposite party no.1 for sale consideration of Rs.21,724/-on 24.02.2015. He on the same day insured the mobile handset through financial height (Gizmo help) herein after referred as the opposite party no.2 from the shop of OP-1 on payment of insurance amount of Rs.1999/- for one year. The mobile handset was stolen on 06.12.2015 from the  pocket of the complainant. The insurance company was informed on the same day and all documents as required by the insurance company are submitted and it was told by it that after seven days he will be informed telephonically about the status of the claim. The complainant several time approached the OP -2 but it told him to wait for the email from insurance company. Thereafter on 29.12.2015 the claim was rejected by the insurance company that is OP-3 on the ground “Non payable due to date exclusion 7.1 Loss, Such as: Lost, forgotten and misplaced left unattended missing fallen and any loss under mysterious circumstances’’ of the policy”. The sales person of opposite party no.1  assured the complainant at time of taking the insurance that if any problem would arise regarding to the phone that would be redressed. But the OP-1 despite assurance failed to redress the grievance of the complainant. The complainant several times communicated telephonically with the OPs but to no effect. Hence the present complaint for directions to the OPs to refund the cost of the mobile handset  and compensation for mental agony pain and harassment.       

         Notice of the complaint was sent to the opposite parties. The OPs-1 and 3 filed reply to the complaint. The OP-1 alleged that the complaint is misconceived false frivolous and baseless. It further asserted that there is no cause of action against OP-1 and prayed for the dismissal of the complaint. The OP-1 on merit asserted that they are reputed company and mere intermediary that neither it provided any insurance to the complainant  nor acts as reseller of the insurance company. The OP-1 further asserted that OP-3 is the insurance provider and op-2 is the agent of coacher infotech Pvt. Ltd. who is the reseller of the OP-3. It was further asserted that the coaher infotech Pvt. Ltd. sells insurance of OP-3 from the premises from OP-1.

               The OP-1 asserted that the complaint was lodged on online portal by the complainant and no proper FIR was lodged by the complainant. It was further alleged that OP-3 rejected the claim of the complainant which was prerogative of OP-3 and is only processed by OP-3 as per terms and conditions and  there is no role of OP-1 in the same. It is further asserted that the complainant was completely made aware about the terms and conditions of the insurance policy. Hence prayed for the dismissal of the complaint. The OP-2 failed to appear despite notice and was proceeded ex-parte vide order dated 10.08.2016. The OP-3 filed reply to the complaint taking preliminary objections that complete set of requisite documents not submitted by the complainant. The claim of the complainant was rejected as per the FIR under the exclusion clause-III of terms and conditions of policy and prayed for the dismissal of the complaint.       

               When the parties were asked to lead evidence by way of affidavit, the complainant tendered in evidence his affidavit dated 01.02.2017 narrating facts of the complaint.  He relied upon copy of duplicate invoices issued by the OP-1 showing price of mobile handset and payment of insurance, online complaint to Delhi police, claim form and several emails. The OP-1 filed affidavit of Shri Rajiv Ranjan assistant store manager testifying the facts stated in the reply.   The OP-3 filed affidavit of Shri Devesh Yadav Divisional Manager stating on oath the facts of the reply. Despite several opportunities granted to the parties they failed  to  file written arguments. therefore, the forum was left with no option accept to pass order.    

                        From bare perusal of the documents placed on record by the complainant it reveals that the complainant purchased one mobile handset Samsung galaxy note 3 neo for sum of Rs. 21,724/- from the OP-1 and insured the mobile handset by paying Rs. 1,999/- to OP-1. The OP-1 admitted that the so called agent of insurance company named coacher infotech Pvt. Ltd. is selling insurance from the premises of OP-1 and they have no role in the same. But OP-1 can not wriggle out of the liability merely by stating that the insurance company was operating from their premises and they have nothing to do with selling of insurance. The invoice issued by the OP-1 reveals otherwise which shows that the amount of insurance was taken by OP-1. The OP-3 has rejected the claim on the exclusion clause of terms and conditions of the policy but no where specifically stated that the terms and  condition  of the policy are given to the complainant at time of selling the policy. It is worthwhile to mention that in case titled IV (2014) CPJ 14A (CN) HAR. Oriental Insurance Co. Ltd.  Vs Vivek Rekhan, the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause.  The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant.  Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced. The version of the OP-3 that necessary documents are supplied is also not supported by any document facts.     

Keeping in view and reasons stated above, we are of the opinion that the repudiation of the claim of complainant by O.P-3 was highly unjustified, unwarranted and unfounded, therefore, it amounted to deficiency in service. Needless to say that there sufficient material on record to show that  OP-1 in collusion with OP-2 sold the insurance policy to the complainant and is also liable for deficiency in service. Hence we are of considered view that there is deficiency in service on part of the OPs and are jointly and severally liable.   

  We, therefore, award against OPs a sum of Rs.17,379/- depreciate amount of the mobile handset as the complainant had already used the handset for  approximately nine months with interest @ 6% from the date institution of the complaint till payment, we further award of Rs.1999/- insurance amount and Rs. 1,000/- compensation towards harassment mental agony loss of time which will also include cost of litigation.  Ordered accordingly.

Order pronounced on :  28.09.2018

• Compliance of the order be made within 30 days after receipt of the order.
• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be  consigned to record.

 

(PUNEET LAMBA)                                                                                      (K.S. MOHI)                            MEMBER                                                                                                       PRESIDENT