BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
C.C.No.122 of 2016.
Date of Instt.:25.04.2016.
Date of Order: 25.07.2017
Ram Kumar son of Purkha Ram, resident of village Matana, Tehsil and District Fatehabad.
..Complainant.
Versus
1. Khurana Mobile Gallery 103, Palika Bazar, Fatehabad-125050 (Haryana) 98131-74154/90500-12000
2. UB Insurance Associates, (App Daily Claims Division), S 204 and 205 Suraj Plaza, 196/8, 25th cross 8th Main, Jayanagar 3rd Block, Banglore 560011, Karnataka.
3.The New India Insurance Company Limited Regional Office-claim Hub, 2-B, Unity Building Annex, Mission Road, Banglore.
..Respondents/OPs.
Complaint under Section 12 of the Consumer Protection Act, 1986
Before: Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member
Smt.Anusuya, Member.
Present: Sh.Zile Singh, counsel for the complainant.
Sh.N.D. Mittal, counsel for the respondent/OP No.3.
OPs No.1 and 2 already ex-parte.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986.
2. In brief, the complainant had purchased Mobile Mark SONY of Model XPERIA-M, IMEI No. 352709061910964 and 352709061910972 from OP No.1 for a total consideration of Rs.11,500/- vide bill/invoice No.6517 dated 22.07.2014. The OP No.1 assured to the complainant that the warranty of the mobile is one year. At the time of selling the mobile to the complainant, OP No.1 also told the complainant that OP No.2 insurance company is insuring the mobile. It was also assured to him that in case of any physical/fault damage, fire and allied perils and theft etc. of the said mobile, the opposite parties would be liable to compensate the complainant in every manner. After receiving consent, OP No.1 insured the mobile of complainant on making the payment of insurance premium of Rs.1100/- through OP No.2. It is further averred that on 02.12.2014 aforesaid mobile got misplaced in Fatehabad, when the complainant was on daily walk. Therefore, complainant moved an application bearing DD No.26/MA, Book No./receipt No.108/32 on 04.12.2014 in the Police Suvidha Kendra, Fatehabad (Mini Secretariat Fatehabad). It is further averred that thereafter, the complainant gave intimation regarding misplacement of the mobile to Op no.1 and OP No.2 on the customer care and visited the office of OP No.1 several times and contacted the customer care number of the insurance company and requested to make the payment /costs of the mobile, but the respondents delayed the matter on one pretext or the other and at last OPs refused to do so. Therefore, there is deficiency in services on the part of the opposite parties and the complainant is entitled to compensation of Rs.30,000/- from the opposite parties on account of mental agony, and humiliation undergone by the complainant and financial loss suffered by the complainant. Hence, this complaint.
3. Opposite party No.1 did not appear despite service of notice, therefore, the OP No.1 was proceeded ex-parte on 09.08.2016. OP No.2 sent its reply dated 20.07.2016 through registered post wherein he submitted that OP No.2 is just a service provider facilitating on claimed documentation to be submitted to Insurance Company and prayed for exemption from any liability. Thereafter, none Appeared on behalf of Op No.2, so he was also proceeded ex-parte on dated 11.05.2017. On 09.01.2017 OP No.3 appeared through his counsel and filed reply to the instant complaint. In its reply the OP No.3 submitted that the mobile in question was insured by the OP No.2 and 3 who have their office in Banglore, Karnataka, So, the Consumer Forum in Banglore has jurisdiction to try and decided the present dispute and this Forum at Fatehabad has no territorial jurisdiction to try and decide the present complaint. It is also averred that the complaint does not reveal any cause of action nor explain how the answering OP was negligent in performing its duties. Insurance is a contract and both the insurer and insured are bound by the terms and conditions of Insurance Policy. As per exclusion clause of terms and conditions of the policy, the insurer is not liable for loss to mysterious disappearance, forgotten, missing or misplaced or loss or if handset is left unattended at any point to time or any unexplained loss’. In the instant case as per the first hand version in DDR the said mobile was stated to be missing on 02.12.2014 in the town of Fatehabad. The claim was not payable as per this exclusion clause and as such the claim of the complainant was not payable and has been repudiated. OP No.3 has prayed that in view of above facts the instant complaint may kindly be dismissed with costs.
4. The complainant in his evidence has tendered his affidavit as Annexure C-1 and documents as Annexure C-2 to C-6 and thereafter closed his evidence. OP No.3 also closed his evidence after tendering in evidence affidavit R-1 and documents as Ex.R2 to Ex.R3.
5. We have heard learned counsel for complainant and have gone through the case file carefully. The counsel for the complainant in his arguments reiterated the submission made in the complainant and further contended that the claim of the complainant falls within the purview of the policy and he is entitled for claim along with compensation whereas the claim has been repudiated by the OPs wrongly and illegally. On the other hand the counsel for OP No.3 reiterated the submission made in the written version and further submitted that the action of OP No.3 in repudiating the claim is perfectly in order and sustainable in the eyes of law. In support of his contention the counsel relied upon the judgments titled as Suraj Mal Ram Niwas Oil Mills Vs. United India Insurance Company IV(2010) CPJ 38(SC) and Aman Kapoor Vs. National Insurance Company decided on 17.04.2017 by National Commission.
6. After hearing the arguments put forth by counsel for the parties and examining the facts of the present case we are of the considered view that the complainant has not been able to prove any deficiency on the part of the OPs in repudiating his claim. A perusal of Daily Diary entry dated 04.12.2014 of Police Suvidha Kendra reveals that the mobile in dispute was misplaced. In the complaint also the complainant has submitted that the mobile in question was misplaced on 02.12.2014 in the town of Fatehabad when he was on daily walk. Therefore, it is a case of missing of the mobile and the same is not covered by the terms and conditions of the policy. As per Exclusion Clause of the policy the insurer is not liable for loss due to missing or misplacement of the handset. It is a settled proposition of law that terms and conditions of the policy constitutes a contract between the parties and both the parties are bound by the terms and conditions of the policy. In the present case the repudiation of the claim of the complainant by the OP No.3 is perfectly in accordance with the terms and conditions of the insurance policy. Therefore, we do not find any deficiency on the part of OP No.3 in repudiating the claim of the complainant. The law cases relied upon by the counsel for OP No.3 is perfectly applicable in the case.
In view of the discussion as made above the present complaint is devoid of any merit and as such the same is hereby dismissed without costs. Copy of the present order be supplied to the parties free of costs. File be consigned in the record room after due compliance.
Announced in open Forum:
Dt.25.07.2017.
(Ansuya Bishnoi) (R.S.Panghal) (Raghbir Singh)
Member Member President,
District Consumer Disputes
Redressal Forum, Fatehabad.
