BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 141/2005 Filed on 29.04.2005<br /> Dated : 16.08.2008<br /> Complainant:<br /> <br /> Lt. Col(Rtd) N.J.Francis, Harmony, T.C III/767, Neelamkavil, Arappura Junction, Vattiyoorkavu, Thiruvananthapuram. <br /> <br /> (By adv. Mary Kunju John)<br /> Opposite parties:<br /> <br /> 1.Divisional Manager, National Insurance Company Ltd., Division No. XVII, 12, community Centre, 1st and 2nd Floor, East of Kailash, New Delhi – 110 065.<br /> <br /> (By adv. S. Rajeev)<br /> <br /> 2.A.K. Gavil & Associates, 2nd Floor, 114, Jor Bagh, New Delhi – 110 003 claim Administrator for the claim. <br /> <br /> 3.The Manager, M/s Quilon Radio Service, M.G. Road, Thiruvananthapuram. <br /> <br /> (By adv. K. Muralidharan Nair)<br /> <br /> This O.P having been heard on 30.07.2008, the Forum on 16.08.2008 delivered the following:<br /> <br /> <br /> <br /> ORDER<br /> <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> <br /> The facts leading to the filing of this complaint are that complainant had purchased a Nokia GSM Mobile hand set model Nokia 1100 from the Quilon Radio Service(3rd opposite party) at Rs. 6599/- and insured the same with the 1st opposite party National Insurance Company against theft. On 5th February 2004 complainant went to the office after leaving the hand set inside his Maruti Car KL-01-Y 2262 in a safe condition. The set was kept inside the side box in a hidden position and the car was locked and key was with the complainant. The car was parked in front of his office. When the complainant returned at 4 p.m it was surprised to see that the beeding from right front side of the car was removed and the door was kept open. When the complainant checked inside the car the hand set was found missing from the car. A complaint was lodged before the Vattiyoorkavu police station regarding the incident. A claim petition was also filed before the 1st opposite party. But the claim petition was returned by the 2nd opposite party on 02.01.2005 for curing of defects. Finally the claim was accepted as claim No. 351700/AKG and A/04/NW/46742/R on 21st February 2005. But the claim was approved for Rs. 1870/- on a condition that the approved amount will be adjusted towards the purchase of a new Nokia hand set from the local dealer. Complainant refused to accept the said amount and a notice was sent to the opposite parties for repayment of the entire amount. But there was no response from the opposite parties. Since the hand set was insured with the 1st opposite party against theft and the set was lost by theft within one month of the purchase complainant is entitled to get a new handset or money equivalent to the handset. Opposite parties refused to do so. So it is the deficiency in service from the side of opposite parties. Hence this complaint claiming cost of the handset of Rs. 6599/-, Rs. 25000/- towards compensation for loss of business, Rs. 25000/- towards compensation for mental agony and suffering and Rs. 40000/- towards compensation for deterioration of his status and position. <br /> 1st opposite party entered appearance and filed version contending that the petition is not maintainable either in law or on facts. It is true that complainant had purchased a Nokia handset from the 3rd opposite party at Rs. 6599/- and insured the same with the 1st opposite party. The averment in para 3 of the complaint that complainant's car parked near his office was forced open and his mobile hand set model Nokia 1100 kept inside was stolen is highly improbable and hence denied. The statement that the company had sanctioned an amount of Rs. 1870/- as compensation is false and hence denied. Document No. 5 attached to the complaint is false and hence denied. Company has never issued such a notice. Company could pay compensation to the insured only if he submitted his claim for indemnity in the appropriate way as stipulated in the Insurance Certificate. The terms and conditions and exclusions attached to the policy direct that claims for indemnity in case of theft of hand set shall be entertained only if accompanied by a copy of the FIR. Further if the handset is taken out from a locked up vehicle on making a forced entry, a copy of the bill for repairing the damage caused to the vehicle and the corresponding insurance claim if any should be submitted with the claim for indemnity. The petitioner has furnished neither the copy of the bill for repairing the car as a result of forcible entry. The petitioner has submitted a certificate issued by the S.I of Police stating that complainant has filed a petition complaining about the loss of his mobile phone and that enquiries made by the police in that regard could not recover the phone. It is clear from the certificate that the complainant intimated the police about the loss of his phone and not about its theft. Hence there is no deficiency in service from the side of the 1st opposite party. So 1st opposite party is not liable to pay any amount by way of compensation for the lost handset. Hence 1st opposite party prayed for dismissal of the complaint. <br /> 2nd opposite party did not appear inspite of notice and 2nd opposite party set exparte. 3rd opposite party entered appearance and filed version contending that the averment in para 1&2 of the complaint are not disputed. The averment in para 3 of the complaint are not known to 3rd opposite party. Averment in para 4 of the complaint are not admitted. Averment in para 5 are within the exclusive knowledge of the 1st opposite party. Avernment in para 6&7 of the complaint are denied. There has been no deficiency in service on the part of 3rd opposite party. Insurance cover against theft is provided by the 1st opposite party in collaboration with the manufacturer M/s Nokia India Ltd. 3rd opposite party being a mere dealer has no role to play in the matter. The quantum of compensation claim is exorbitant and unreasonable. Hence 3rd opposite party prayed for dismissal of the complaint with compensatory cost to the 3rd opposite party. <br /> The points that would arise for consideration are:- <br /> (i)Whether the complainant is entitled for refund of the cost of handset?<br /> (ii)Whether there has been deficiency in service on the part of opposite parties?<br /> (iii)Reliefs and costs.<br /> To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and marked nine documents as Exts. P1 to P9. Opposite parties did not file affidavit but marked three documents as Exts. D1 to D3. <br /> Points (i) to (iii):- It has been the case of the complainant that on 08.01.2004 complainant had purchased a Nokia GSM Mobile hand set model Nokia 1100 at Rs. 6599/- from the Quilon Radio Service(3rd opposite party) and insured the same with the National Insurance Company (the 1st opposite party) against theft. It has also been the case of the complainant that on 5th February 2004 complainant went to the office after leaving the hand set inside his Maruti Car KL-01-Y 2262 in a safe condition duly locked and that when the complainant returned at 4 p.m it was surprised to see that the beeding from right front side of the car was removed and the door was kept open and when checked inside the car, the said handset was found missing from the car. A complaint was lodged before the Vattiyoorkavu police station regarding the incident. A claim petition was also lodged before the 1st opposite party. Finally the claim was approved for Rs. 1870/-, on a condition that the approved amount will be adjusted towards the purchase of a new Nokia handset from the local dealer. But the complainant refused to accept such amount and issued notice to 1st opposite party for repayment of the entire amount, but no response from the opposite parties. Ext. P1 is the invoice issued by the 3rd opposite party for Rs. 6599/- towards the purchase price of the said Nokia mobile phone. Ext. P2 is the copy of theft claim form dated 09.11.2004. As per Ext. P2, model of the hand set is Nokia 1100, invoice No. and date of purchase is 935489 dated 08.01.2004, amount is Rs. 6599/-, insurance certificate No. 197446, date and time of theft is 05.02.2004 at 4 p.m, place Arappura/Pangode Military Camp, FIR No. and date 78/PTA/B2/D4 dated 06.02.2004 at Vattiyoorkavu police station. Ext. P3 is the copy of FIR. As per Ext. P3 FIR No. is 35 dated 27.12.2004. Submission by the opposite party is that in order to avail the benefits under the insurance policy the complainant should have informed the local police station of the theft and got the FIR registered within 24 hours and that if the complainant had done so, the police would have investigated the matter immediately and tried to recover the mobile handset alleged to have been stolen. The case of the complainant has been resisted by the opposite party by submitting that complainant informed the police of the alleged theft only on 27.12.2004, that is about ten months after the theft took place. At this juncture, it is pertinent to point out that Ext. P3 FIR is seen registered as per the direction of the Additional Chief Judicial Magistrate, Thiruvananthapuram in CMP 7887/04 dated 27.12.2004. As per Ext. D3 certificate dated 15.11.2004 issued by the Inspector of Police, Vattiyoorkavu it is seen mentioned in it that a complaint is seen filed before the said police station by the complainant regarding the loss of his mobile phone and that enquiries were made in this regard and not recovered so far. Ext. D3 certificate is seen issued prior to the date of Ext. P3 FIR No. dated 27.12.2004.<br /> Submission by the counsel appearing for the complainant is that the complainant informed the police about the loss of his mobile phone on 06.02.2004. Submission by the opposite party in his version is that petitioner has furnished neither the copy of the FIR nor the copy of the bill for repairing the damage caused to the vehicle as a result of forcible entry as required by the terms and conditions attached to the policy. The terms and conditions is marked as Ext. D2. Ext. P3 FIR is seen registered as per order in cmp/7887/04 on 27.12.2004. Whereas complainant submitted he had informed the police about the loss on 06.02.2004. But no FIR dated 06.02.2004 is seen produced by the complainant. In this context we have to peruse the decision dated 13.07.2005 by Punjab State Consumer Disputes Redressal Commission in Appeal No. 789 of 2005 between United India Insurance Co. Ltd. And Anil Sehgal wherein it has been held that victim's duty is only to inform the police regarding the alleged crime. It is upto the police authorities whether to record DDR or FIR. In actual recording of a DDR or FIR no role is played by the victim excepting to inform the true facts to the police, either orally or in writing. In the instant case the fact to be proved was the loss of the mobile or stealing thereof. DDR/FIR is a type of evidence to substantiate the factum of the loss of a mobile or stealing thereof. Can it be said if there is no FIR, at all, the question of stealing/loss of a mobile set or that of anything else cannot be proved by other evidence. Main thrust of argument advanced by the counsel appearing of the complainant was to the effect that complainant had informed the loss of mobile phone to the Vattiyoorkavu police on 06.02.2004 and when requested for the copy of FIR, complainant was supplied with the copy of the GD entry and thereafter the complainant filed a petition under Sec. 156(3) of CRPC and got the FIR registered by the Poojappura police on 27.12.2004. Ext. P4 is the copy of terms and conditions seen issued by the 3rd opposite party. Ext. P5 is the letter seen issued by the 1st opposite party to the complainant. As per Ext. P5, opposite party approved the claim of the complainant for Rs. 1870/-. But complainant did not accept it on 19.11.2004. Claiming the entire amount of Rs. 6599/- together with compensation complainant sent an advocate notice to the 1st and 2nd opposite parties by Ext. P6. Ext. P7 is the letter issued by 1st and 2nd opposite party to the complainant requesting him to submit the original FIR or attested copy of FIR by the police and its translation in Hindi or English. Ext. P8 is the acknolwedgement card. Ext. P9 is bill dated 26.02.2004 issued by Thozhuvancode Amma Workshop in connection with repair charge of KL 01 Y 2262. Ext. D1 is the policy copy of Nokia Mobile phone. Opposite parties never filed proof affidavit to substantiate the pleadings in the version. Moreover as per Ext. P5 the said claim is approved by opposite party for Rs. 1870/-. Further, on 28.03.2006, opposite party submitted that they were ready to settle the matter for Rs. 4638/-, but the complainant was not amenable for settlement. On going through the complaint, proof affidavit, Exts. P1 to P9, version, Exts. D1 to D3, hearing the arguments advanced by complainant and opposite party and decisions of the appellate commission we are of the considered view that complainant has succeeded in establishing the complaint. Deficiency in service is proved. Complainant is entitled for refund of the cost of the handset. <br /> In the result, complaint is allowed. 1st and 2nd opposite parties shall jointly and severally refund an amount of Rs. 6599/- to the complainant. Opposite parties 1 & 2 shall also pay a sum of Rs. 1000/- towards compensation and Rs. 1000/- towards cost of the complaint. The said amounts shall carry interest at the rate of 12% if not paid within two months from the date of this order. <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 16th August 2008.<br /> <br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER<br /> O.P.No. 141/2005<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Francis <br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Original Invoice No. 935487 dated 08.01.2004 for Rs. 6599/-. <br /> P2 - Photocopy of Theft claim Form dated 09.11.2004.<br /> P3 - Photocopy of FIR No. 351 dated 27.12.2004 from the Police Sub Inspector, Poojappura Police Station, Tvpm.<br /> P4 - Photocopy of Dealer Stamp <br /> P5 - Original letter dated 21.02.2005 with claim No. 351700/AKG&A/04/Nov/46742/R from National Insurance Co. <br /> P6 - Photocopy of advocate notice dated 19.04.2004 to the opposite parties.<br /> P7 - Original letter dated 21.01.2005 with claim No. 351700/AKG&A/ 46742 from National Insurance Co.<br /> P8 - Original acknowledgement card addressed to the 1st opposite party.<br /> P9 - Original receipt of Rs. 470/- dated 26.02.2004 for repairing charge. <br /> III OPPOSITE PARTIES' WITNESS :<br /> NIL<br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> D1 - Photocopy of Insurance Certificate dated 24.10.2003 issued by National Insurance Company.<br /> D2 - Terms and conditions(original) of National Insurance Company dated 13.05.2005.<br /> D3 - Original Certificate dated 15.11.2004 issued by S.I of Police, Vattiyoorkavu, Tvpm.<br /> <br /> <br /> PRESIDENT