DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 137/2016  

QUORUM:

Order By: Shri S.S. Malhotra (President)

JUDGMENT

By this judgment the Commission shall dispose off the present complaint filed by the Complainant against OP w.r.t. deficiency of service by the OP in not reimbursing the claim w.r.t. theft of his mobile phone.

1. Brief facts as stated by the complainant in the complaint are that he purchased one Samsung Mobile Phone for a sum of Rs.8000/- on 15.07.2015 from OP1 and the said phone was insured with OP2, however on 08.02.2016 when complainant went to attend a marriage party, his phone was stolen and thereafter he made a complaint with concerned Police Station vide FIR No. 430/2014 (appears to be wrongly written) and information was also given to OP along with Photocopy of the Bill, Insurance Paper and Copy of FIR however the OP repudiated the claim and as such OP is guilty of deficiency in service and is liable for making the payment to the complainant and it is prayed that OPs be directed to pay Rs.11,750/- along with compensation of Rs.50,000/- and litigation charges of Rs.21,000/-.
2. The copy of the Bill for Rs.8000/- and copy of the Insurance from OP2 is placed on record.
3. The OP1 has filed its written statement taking preliminary objection that complaint is not maintainable as complainant has not come to Commission with clean hands and OP1 was only a retailer who sold the Mobile Phone and there is no deficiency in service on the part of OP1 as complainant has not come to Commission with clean hands. The Phone was insured by the Insurance Co. and as such answering OPs are not necessary party. Complaint of the complainant be dismissed.
4. As far as merits are concerned purchasing of Mobile Phone from OP1 and facts w.r.t. theft of the Mobile are stated to be matter of record by further stating that they do not relate to the OP1 and it is prayed that complaint of the complainant against OP1 be dismissed.
5. OP2 has also filed its reply taking preliminary objection that complaint is not maintainable and is based on falsehood, conjectures and unreal facts.  It is further stated that claim of the complainant was rejected on the ground that Mobile was lost and there is no forceful act involved as per the terms and conditions of the insurance policy, as complainant itself has stated has that he had put the Mobile Phone in his Pocket in marriage ceremony and this is a case of negligence of the complainant himself.  The terms and conditions were handed over to the complainant at the time of insurance along with booklet thereby mentioning the exclusionary clause w.r.t. the theft i.e. pick pocketing, ‘no forceful act involved’, ‘reasonable care not taken’, ‘negligence of the complainant’, ‘late reporting of the claim’, ‘wrong documentation’, and no unforeseen violent accident and since the complainant comes under the purview of ‘no forceful act was involved’, the claim of the complainant was not admissible as per the terms and conditions of the policy and even otherwise it is submitted that answering OP2 is only a service provider whereas insurance was provided by New India Insurance Co. Ltd. and in such case the claim must be lodged against the New India Insurance Co. Ltd. and since complainant has not impleaded the said company as a necessary party, Complaint against the OP2 is not maintainable on account of Mis-joinder and Non-joinder of parties and as such there is no cause of action against the answering OP2.     
6. On merits it is denied that alleged Mobile Phone was lost due to any act of the pick pocket and even otherwise no explanation is given as to how the phone was allegedly pick pocketed and in fact it is not the case of pick pocketing rather complainant has stated that he did not find his phone in his pocket and in all probability the phone might have fallen down therefore the present complaint case is not maintainable. It is also denied that any document such as photocopy of the bill or insurance paper or FIR Job sheet or any other reasonable document were sent by the complainant to the OP2 and since there is no deficiency in service on the part of OP2, the claim against OP2 be dismissed. 
7. The Complainant has filed Rejoinder to the written statement of both the OPs and has denied the contents of the written statement and reaffirmed and reiterated the contents of the complaint.
8. Complainant has filed its own evidence whereas OP1 has filed evidence of Sh. Yashpal Singh its Proprietor and OP2 has filed evidence of Sh. Pramod Lakade AR of the OP2.
9. The Commission has heard the arguments and perused the record.
10. The Complainant purchased the Mobile from OP1 and it was insured through OP2, and consideration of Rs.549/- was paid by the complainant to OP2 and further OP2 was to provide the services for the insurance of the Mobile Phone of the complainant are not disputed fact. FIR has been lodged and claim has not been reimbursed is also not disputed.
11. The only issue is that the Complainant submits that he got the Mobile Phone insured through OP2 and when the Phone was stolen the claim was not reimbursed which amounts to deficiency whereas OP2 submits that although he is a service provider for the purpose of insurance of the Mobile Phone yet the Mobile was insured not by him but by New India Insurance Co. Ltd. and as such complainant has to approach the New India Insurance Co. Ltd. and therefore they are not deficient in providing the services.  Once the OP2 admits that he had insured the Mobile of the complainant, then it cannot be expected that he is just receiving the premium and is not supposed to do any further act for the purpose of getting the indemnification from the Insurance Co. on behalf of the complainant.  It is the OP2 through whom the mobile phone was insured with insurance company and as per the agreement placed on record i.e. Form 4A and as per the Sysca Gadget Secure Blanket Cover for devices, it is nowhere mentioned that OP2 has insured the Mobile Phone from the New India Insurance Co. Ltd. There is no document filed on the record either by OP1 or OP2 which may suggest that complainant has been informed that his Mobile has been insured with the New India Insurance Co. Ltd., rather what the logo says that it is covered under theft and no terms and conditions are explained.  Even in the Form, 4A i.e. the claim form which is received by the Insurance Co. It is nowhere mentioned as to through which insurance Co. the mobile was insured, although it confirms the IMEI number of the mobile, address of the complainant and the fact w.r.t. the theft and claim amount of i.e. Rs.7200/- has been lodged but it is nowhere clear to the complainant as to through which insurance company the OP2 has insured the Mobile. In the considered opinion of the Commission once the information has been given by the complainant to OP2 that his mobile has been stolen, then OP2 who has to provide the services of insurance to the complainant, should have made necessary arrangement and taken the necessary steps for the purpose of the indemnification of the amount of the Phone to the complainant through the insurance company.  It cannot be presumed to be correct that OP2, apart from receiving the premium from complainant has to do nothing, rather it was expected that he would have got the necessary form filled up from the complainant, should have referred the claim to the Insurance Co. after completing all the required formalities and then should have pursued the same with the insurance company and then if the insurance Co. would have rejected then it should have been brought to the Notice of the complainant. Infact OP2 has provided no service to complainant despite having taken the premium rather has taken the objection that the claim is bad for mis-joinder and non-joinder of parties. Even if this contentions is accepted to some extent, then it was the OP2 who had to make the insurance Co. as  a party, as complainant does not have any direct, ‘service seeker-service provider’  relationship with the insurance Co. The complainant has not paid any consideration to the insurance company, directly and therefore, although there appears to be no deficiency on the part of OP1 apparently there is deficiency on the part of OP2 who has not provided any services to the complainant despite having the information that Mobile of the complainant has been stolen. The complaint case against OP1 therefore is dismissed and is allowed against OP2. Accordingly, the following order is passed:

• The OP2 is directed to pay a sum of Rs.7200/- to the complainant with interest @ 6% p.a. from the date of filing the complaint till realization along with consolidated compensation of Rs.4000/- including litigation charges. 

This judgment has to be complied with within 30 days from the date of receipt of the judgment and if not complied with, then OP2 would pay interest on all above amounts @ 9% p.a. till realization.   

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 13.05.2024.