Complainant Avdhesh Rana vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the opposite parties to settle and pay the claim to him and other relief to which he may be found entitled to in law and equity.

2.       The case of the complainant in brief is that he purchased a mobile handset Sony D6502Z2 from the opposite party no.1 for Rs.50,000/- on 20.05.2014 vide invoice no.604 and another amount of Rs.4275.25 has been charged by the opposite arty no.1 towards Vat and surcharge.  The opposite party no.1 also advised to him to purchase “Apps daily products” with free a risks insurance for mobile handset and charged an amount of Rs.2499/-. The insurance covers the risks of theft, burglary, physical damage including fluid damage for the new mobile handset. He installed and registered the Daily Ultimate Protection application on his brand new mobile purchased from the opposite party no.1, on the same day and insured it from the opposite party no.3 through their authorized representative/agent on 20.05.2014 vide policy bearing no.67030246132400000004 lying in the pack of “Apps daily products” was issued/confirmed online by the opposite party no.2 and the policy of insurance was effective from the date of purchase of mobile set  i.e. 20.05.2014 for 12 months only.  He has further pleaded that on 17.12.2014, his mobile was stolen by an unknown person and he tried to search the mobile phone and when he could not trace, he lodged a complaint before the Sanjh Centre Police Station Division no.1, Pathankot on 18.12.2014. On 19.12.2014, he approached to the opposite party no.1 and the representative/agent of the opposite parties no.2 and 3 obtained all the original documents from him and sent the same to the opposite party no.3. He also intimated the opposite parties on free no.1800 209 9060 regarding the theft of mobile set. He competed all the necessary requirements and lodges a claim online to the opposite party no.3 with the help of representative/agent. The representative of the opposite parties took the original papers for sending the same to the opposite party no.3 and assured that the claim will be settled within a short period. He requested a number of times to the opposite parties to settle and pay his claim but they are not entertaining him and are delaying the process of claim. He claims Rs.50,000/- the insured value of the mobile and the opposite parties are legally bound to settle and pay the claim to him, who has suffered mental agony and harassment. Hence this complaint.

3.       Upon notice, the opposite party no.1 appeared through its counsel and filed its written version taking the preliminary objections that the present complaint is not maintainable; the complainant has failed to set out any deficiency in service or unfair trade practice on the part of the opposite party; the present complaint is without any cause of action. The complainant has no fit case for deficiency in service or unfair trade practice as defined in the section 2 (1) (O) & ® of the Consumer Protection Acft,1986 and  the present complaint is not maintainable against the opposite party. The opposite party no.1 is only the dealer of new packed mobile sets neither the opposite party no.1 is anyway connected with the insurance of the mobile phones nor is the opposite party no.1 the insurer. On merits, it was submitted that the opposite party no.1 is only the dealer of new pack connected with the insurance of the mobile phones nor the opposite party no.1 is the insurer. The claim of the complainant is against the opposite party no.2 and 3 as such the complaint qua the opposite party no.1 is liable to be dismissed. It was further submitted that the question of lodging the claim with the opposite party no.1 does not arise as the same is to be lodged with the opposite party no.2 and 3. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.        Upon notice, the opposite party no.2 appeared through its counsel and filed its written version taking the preliminary objections that complaint filed by the complainant is not maintainable as the complainant has filed this complaint against the terms and conditions of the Insurance Policy. The claim of the complainant is not tenable because it falls under the EXCLUSION as per Terms and Conditions of the MOBILE HANDSET ALL RISKS INSURANCE POLICY. The claim of the complainant was repudiated on 02.06.2015 by the opposite party no.2 for TAMPERING OF DOCUMENTS which falls under Exclusion as per Terms and Conditions of the   MOBILE HANDSET ALL RISKS INSURANCE POLICY. There was Tampering in FORM 2A, the Format of Police complaint filed by the complainant before the police station incharge Div. no.2 Pathankot on 21.12.2014 and in police report is stated that during traveling it fell down which is not covered as per Terms and Conditions of the MOBILE HANDSET ALL RISKS INSURANCE POLICY and the complaint is without any cause of action, hence liable to be dismissed.  On merits, it was submitted that APPSDAILY SOLUTIONS PRIVATE LTD. has taken a policy no.67030246132400000008 from 01.02.2014 to 31.01.2015 from the opposite party no.2 and opposite party no.2 issued a policy. The risks covered under the policy are clearly mentioned in the policy. It was admitted that a claim was lodged by the complainant before the opposite party no.2 through opposite party no.3 alongwith all the requisite documents. The claim of the complainant was repudiated on 02.06.2015 by the opposite party no.2 for TAMPERING OF DOCUMENTS which falls under Exclusion ‘If the documents are found tampered; non-disclosure of material facts; fraud/misrepresentation as per Terms and Conditions of the MOBILE HANDSET ALL RISKS INSURANCE POLICY.  There was Tampering in Form 2A, the Format of Police complaint field by the complainant before police station incharge Div. no.2 Pathankot on 21.12.2014. The claim of the complainant was repudiated on 02.06.2015 by the opposite party no.2 and the intimation of the same was sent to complainant. There is no delay in settling the claim of the complainant and deficiency in service on the part of the opposite party no.2. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

5.           Notice of the complaint was issued to the opposite party no.3 was not received back. Case called several times during the day but none had come present on its behalf. Therefore, it was proceeded against exparte vide order dated 23.11.2015.

6.        Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 along with the other documents exhibited as Ex. C2 to Ex.C11 and closed the evidence.

7.        On the other hand, counsel for the opposite party no.1 tendered into evidence affidavit of Sh.Sunil Gupta, Prop. M/s.Gupta Electrostat Centre Ex.OP-1/1 and closed the evidence.

8.         Sh.Shiv Lal Branch Manager of opposite party no.2 tendered into evidence his own affidavit Ex.OP-2/1, alongwith other documents Ex.OP-2/2 and Ex.OP-2/3 and closed the evidence.

9.          We have duly heard the learned counsels for both the sides in the back-drop of the statutory merit of the evidence/ documents as duly produced by the contesting litigants in order to judiciously adjudicate the present complaint under the applicable C P Act’ 1986.

10.    We find that the complainant Avdesh Rana had admittedly comprehensively insured (Ex.C4) his Sony Mobile Handset with the OP2 insurers through their OP3 agent associates (Ex.C3 & C5) having purchased the same from the OP1 vendor vide invoice # 604 of 20.05.2014 (Ex.C2) for Rs.50,000/- plus collaterals etc. However, the insured hand-set was allegedly stolen (affidavit Ex.C1) on 17.12.2014 and the related DDR # 2719 dated 18.12.2014 (Ex.C6) was duly filed with the Sanjh Centre PS Div. 01, Pathankot. Subsequently, the complainant filed the impugned insurance claim (Ex.C7, C8, C9, C10 & C11) on 22.12.2014; that was somehow repudiated by the OP2,3 insurers (Affidavit Ex.OP2,3/1) on 02.06.2015 for having allegedly ‘tampered with the document Form 2A (Police Format)’.

We find that the OP2,3 insurers have repudiated the impugned claim under the ‘Exclusion’ clause (Ex.OP2,3/3) of the related Policy (Ex.OP2,3/2) reading as: ‘If the documents are found tampered; non-disclosure of material facts, fraud/ misrepresentation.’  However, the OP insurers have neither produced the Police Complaint Format 2A nor the DDR (Police Receipt Report) to indicate and prove the alleged ‘tampering’ etc attracting the ‘exclusion’ clause. The OP insurers have also failed to produce even any other collaterally cogent but acceptable evidence to prove ‘tampering’ of documents etc and in its absence the said allegation shall amount to one ‘bald’ statement, only. Somehow, the complainant has produced both these documents: DDR Police Report dated 18.12.2014 as Ex.C6 and Police Complaint Form 2A dated 21/22.12.2014 as Ex.C9 but duly attested by PS Div 1 on 08.01.2015. The incident of ‘losses’ in both the documents having been narrated at different points of time shall not be exactly the same especially when put forth by a lay man little expecting that his ‘simple’ statement shall be ‘hard-boiled’ to force ‘repudiation’.

11.     Moreover, we are of the confirmed opinion that the complainant simply wanted to convey that his mobile ‘hand-set’ was lost during ‘travelling’. Had he known that it (hand-set) was felling down or was being stolen by somebody, he would never have let it happened. And, when the very police authorities have attested/ accepted both the documents sans ‘demur’ there remains no further ‘suspicion’ on the claimed theft ‘loss’ of the mobile hand-set.

12.       In the light of the all above, we find that the OP insurers have arbitrarily repudiated the impugned insurance claim that otherwise has been legally valid for a favorable settlement. Thus, we partly allow the present complaint and hereby ORDER the OP insurers to pay the impugned insurance claim in full (strictly in terms of the applicable insurance policy) to the complainant besides to pay him Rs.3,000/- as compensation and Rs.2,000/- as cost of litigation within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA from the date of orders till actual payment.  

13.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record. 

          (Naveen Puri)

                                                                             President   

Announced:                                                     (Jagdeep Kaur)

May 04, 2016                                                        Member

*MK*