Haryana

Yamunanagar

CC/271/2016

Bhushan S/o Gulshan Kumar - Complainant(s)

Versus

Imperia - Opp.Party(s)

Complainant Inperson

20 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                    Complaint No.271 of 2016.

                                                                                    Date of institution: 8.8.2016.

                                                                                     Date of decision:20. 9.2017.

 

Bhushan son of Sh.Gulshan Kumar, age 29 years resident of House No.149-A, Model Town, Yamuna Nagar.

                                                                                                            …Complainant.

                                    Versus

1.         Imperia 58 C near Raman Hotel Model Town, Yamuna Nagar through its partner/prop.

2.         Thukral Traders SCO No.34, sector-17, HUDA Jagadhri, near Pandit Automobiles, Distt. Yamuna Nagar through its authorized signatory.

3.         Apps Daily Solutions Pvt. Limited (Previously onwards Mobility Solutions Pvt. Ltd.) D-3137-39, Oberoi Garden Estates, Chandivali Farm Road, Andheri (E) Mumbai 400072 through its GM.

4.         The New India Assurance Co. Ltd. Branch Office, Bangalore.

5.         F1 Info Solutions Service Pvt. Ltd. SCO 274 1^st floor Sector-32-D near Nirman Cinema, Chandigarh through its authorized signatory.

                                                                                                    … Respondents.

BEFORE:       SH. SATPAL, PRESIDENT.

                       SH. S.C.SHARMA, MEMBER.      

                       SMT.VEENA RANI SHEOKAND, MEMBER.

 

Present:       Complainant in person.   

                    Ops No.1, 2,4 and 5 ex parte.

                    None for OP No.3.

 

ORDER  (SATPAL, PRESIDENT)

 

1.                     The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the respondents (herein after the respondents shall be referred as Ops).  

2.                     Brief facts of the present complaint are that the complainant had purchased the mobile iphone 6S from the Op No.1 on 16.10.2015 vide receipt No.97 for Rs.62,000/-.  At the time of purchase of the above said mobile, the OP No.1 advised the complainant to opt the Insurance scheme of OP No.3 Apps daily solutions pvt. Ltd. for one year from the date of purchase for its damage, breakage, theft and any kind of loss or damage etc.   The Op No.2 charged Rs.4000/- on behalf of Op No.3 and gave an insurance kit of above said policy No.67030246142400000008 SR No.4810308, Scratch code 9545bBmFCK relating to said iphone mobile set for a period of one year from the date of purchase i.e.19.10.2015 to 16.10.2016.  On 19.6.2016 at about 9.00pm, the screen of the mobile in question was broken when the complainant after taking meal in the restaurant come out one drunkard struck him and the screen and camera of the mobile was broken with power button on/off automatically.  On the very next day, the complainant contacted the Op No.3 at their toll free number regarding the damage/problem of the mobile in question.  They advised him to lodge a claim on their site, the complainant tried to his best to lodge the claim on their site but due to some technical defect the claim could not be lodged on 20.6.2016.  Then the complainant again contacted the OP No.3 telephonically and told all the story on which the Op No.3 noted down all the particulars and assured the complainant that they will register the claim online.  On 22.6.2016, the OP No.3 telephonically informed the complainant that his claim could not be registered and confirmed all the particulars and then they generated the intimation number on the next day i.e. 23.6.2016. The intimation number was approved and the OP No.3 advised the complainant to deposit the mobile set along with all documents with their service centre i.e. OP No.5 at Chandigarh within 7 days.  The complainant duly deposited the mobile set, on 28.6.2016 vide job sheet no.66367.  The Op No.5 made an estimate for replacement of the broken mobile to the tune of Rs.24,452/-.  After 15 days, the Op No.3 had rejected the claim on false and flimsy grounds that the complainant failed to inform the company within 48 hours.  As per IRDA instructions, the insurance company cannot reject the genuine claim on technical grounds.  There is no delay on the part of the complainant to inform the insurance company, it is due to technical fault at their site.  There is clear cut negligence and deficiency in service on the part of the Ops and prayed for acceptance of complaint by directing the insurance company to pay the insurance claim along with interest or to replace the damaged mobile with new one and also to pay Rs.25,000/- on account of mental agony, harassment as well as cost of proceedings. 

3.                     Upon notice, Sh.Manish Dobhal, Sales officer appeared on behalf of the Op No.3 on 14.9.2016.  However, No.1,2,4 & 5 failed to appear despite service and as such they were proceeded against ex parte vide our order dated 14.9.2016.

4.                     The Op No.3, while filing the written statement, took some preliminary objections that the first representation in respect of the Product of the Ops made to the complainant was vide the kit which was provided by the retailer.  The said kit which is sold in a sealed state, contains the terms and conditions of the product of Op No.3 along with insurance policy terms and conditions which prescribe the insurance policy claim procedure give a clear idea of all the process involved in raising and settling a claim.  On the cover of the kit, it is clearly specified that the insurance is a free feature being bundled along with the product of the OP No.3.  The procedure mentioned therein is to be followed in lodging the claim in case of damage, theft or burglary of the mobile phone insured by the sold product.  It is a necessary precondition of the contract between the complainant and the New India Assurance Co. Ltd. whose insurance offering is bundled with the product of the OP and the decision of the insurance company i.e. (NIA) in respect of admissibility of the claim shall be final and is binding on both the complainant and OP.  Thereafter, the complainant is attempting to use the machinery of this Hon’ble Court to breach the terms and contract between the parties by fact fully filing a vague complaint.  In the present case the complainant’s mobile was physically damaged on 21.7.2016 and following sequence of incidence happened as per the ready records of the Op No.3.  (A). on 22.7.2016, a claim for physical damage was registered with claim intimation id is AD-D-220716-197735907 with Op No.3.  (B).  The complainant was guided to submit the following documents:-

1.         Forms 1C & 2C,

2.         Form 3 C with customer bank details along with cancelled cheque.

3.         Original purchase invoice.

4.         Self attested copy of customers ID proof.

5.         Photographs of damaged handset clearly showing extent of damage.

6.         Repair estimate copy having IMEI number of handset.

7.         Claim approval mail.

8.         IMEI number photo.

 

C.        on 25.7.2016, the OP No.3 customer care Executive has sent claim of Form mail to the complainant for submitting the required documents.  (D). Till date the complainant has not submitted any of the above said documents for processing claim of the damaged mobile to Op No.3 nor insurance company.  The complainant had intimated the damage through the intimation Id AD-D-220716-19773907 on 22.7.2016 and thereafter the complainant was required to submit necessary documents which the complainant has never submitted and there was no communication from the complainant end till date nor he submitted any required documents.  On merits, reiterated the stand taken in the preliminary objections.  There is no deficiency in service on the part of the answering Op and prayed for dismissal of complaint with costs. 

4.                     To prove his case the complainant tendered into evidence his own affidavit as annexure C.A, documents such as proof to try to lodge the claim as annexure C.1, copy of quotation for replacement as annexure C.2, copy of claim intimation as annexure C.3, copy of form 1C, copy of invoice as annexure C.5, copy of rejection letter as annexure C.6 and copy of service report as annexure C.7 and closed his evidence.

5.                     On the other hand the OP No.3 failed to adduce any evidence despite several opportunity, hence, the evidence of the OP No.3 was closed by court order vide order dated 13.1.2017.

6.                     We have heard the learned counsel for the complainant and gone through the pleadings as well as documents placed on the file very carefully.  It is not disputed that the complainant had purchased one mobile set on 16.10.2015 amounting to Rs.62000/-. It is also not disputed that mobile in question was insured with Op No.3 vide policy No.670302461424000000008, SR No.4810308 for one year w.e.f. 19.10.2015 to 16.10.2016.

7.                     The only grievance of the complainant is that during the insurance period, the mobile in question had damaged on 19.6.2016 at about 9.00 P.M.   The complainant had tried his best to lodge the claim online but due to technical problem in the site of the Op No.3, the complainant could not lodge the claim on 20.6.2016 to 22.6.2016.  Lastly, on 23.6.2016 OP No.3 advised the complainant to deposit the set with OP No.5 but the OP No.3 repudiated the claim of the complainant on false and frivolous grounds that the complainant failed to intimate the insurance company within 48 hours.  However, the complainant tried to his best to lodge the claim online but due to technical problem in the site of OP-company claim could not be lodged.  Copy of screen shot of the site dated 20.6.20116 is Annexure C.1.   The version of the OP No.3 is that the complainant had lodged the claim on 22.7.2016 and failed to submit the documents.  This stand taken by the Op No.3 & 4 is not tenable in the eyes of law because from the perusal of the document Annexure C.3 which is repudiation letter, it is crystal clear that the OP No.3 repudiated the claim of the complainant only on the ground that the complainant has failed to inform the company within 48 hours.  The version of the OP No.3 is not believable that the complainant had informed the OP-company on 22.7.2016.  How it can be possible when the OP-company had rejected the claim on 11.7.2016 (annexure C.3).  As such, the stand of the OP No.3 is itself contradictory.

                        Now the other question which arises before us for consideration is whether the complainant had informed the OP-company in time or not?

            We have perused the documents annexure C.1 which is “screen shot” of the site of OP No.3 wherein it is clearly mentioned that ‘cannot be registered, please try after some time or claim exists for this’. Meaning thereby that the complainant tried his best to lodge the claim online but due to technical fault, complainant was unable to lodge the claim.  From the perusal of the documents, (annexure C.6) which is status report of the claim of mobile set of the complainant, it is clear that the OP had admitted that the claim was under process, which proves that the complainant had informed the company well in time.  From the perusal of the documents annexure C.7 which is job sheet of service station, in the column of ‘Diagnosis Details’, it has been mentioned is as under:-

            -           Display having multiple cracks.

            -           Camera lense broken. No mp.data

            -           Replacement after approval and vmip. 

From the perusal of the job sheet of damaged mobile set, it is clear that the mobile set in question was totally damaged and replacement was recommended after approval. 

                        Now, the next question which arises before us, is as to what amount the complainant is entitled for his damaged mobile set?  It is not disputed that the complainant had purchased the mobile set on 16.10.2015 and the same was insured with Op No.3 through Op No.2 from 19.10.2015 to 16.10.2016.  It is also not disputed that aforesaid mobile was damaged on 19.6.2016 i.e. after a period of 240 days of insurance. The terms and conditions of the insurance policy with regard to total damaged mobile set are reproduced as under:-

            Compulsory Excess (deductible).

5% OF THE ADMISSIBLE CLAIM AMOUNT OR RS.500/- WHICHEVER IS MORE.

For damage: TOTAL LOSS BASIS:

If the repair cost exceeds ‘maximum liability limit’ OR if the handset is ‘Beyond Economical Repair(BER)’ Insurance company at their discretion settle such claim on Total Loss/Constructive Total Loss (BER) Basis as follows:

Depreciation:

For 0-90 days	15%
91-180 days	25%
181 days & above	45%

 

                        From the perusal of above terms and conditions of the Insurance Policy, it is crystal clear that the complainant’s damaged mobile set falls in the category of depreciation @45% as the mobile set of the complainant was damaged after 240 days of insurance policy.  Hence, the complainant is entitled for 55% cost of the mobile set and the genuine claim of the complainant cannot be repudiated.  This advise was also given by IRDA to all the insurance companies vide circular Ref.-IRDA/HLTL/Misc/CIR/216/09/2011, dated 20.9.2011, some part of the letter is reproduced as under:-

            “The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc.  However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.

            The insurer’s decision to reject a claim shall be based on sound logic and valid grounds.  It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims.  Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.

            Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and condition. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurer should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time”.

                        It is pertinent to mention here that the Ops did not bother to contest the complaint and remained ex-parte and in the absence of any cogent evidence on behalf of Ops we have no option except to accept the version of the complainant and allow the complaint of the complainant.

                        Resultantly, we partly allow the complaint of the complainant and direct the Ops No.3 & 4 to comply with the following directions jointly and severally within 30 days from the date of preparation of this order;

1. To pay 55% amount of Rs.62,000/- (price of mobile set).
2. To pay Rs.2200/- as litigation charges.

In case the Ops No.3 & 4 fail to comply with the order of this Forum within the above said stipulated period they shall pay interest @6% p.a. from the date of filing of the complaint till its realization.  Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court:20.9.2017

                                                                                                (SATPAL)

                                                                                           PRESIDENT.

 

(VEENA RANI SHEOKAND)                    (S.C.SHARMA)

MEMBER.                                                     MEMBER.