Delhi

North East

CC/217/2016

SHRI ZAKIR KHAN - Complainant(s)

Versus

KHUSHNUMA COMMUNICATION - Opp.Party(s)

04 Sep 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 217/16

 

In the matter of:

		Shri Zakir Khan S/o Shri Sabir Khan R/o:- H. No. 842, Street no. 15 Block- E-2, Nehru Vihar, Mustafabad North East, Delhi-110094		Complainant
		Versus
	1                 2	Syska Gadget Secure Leehan Retails Pvt. Ltd. Through its Manager / Director 4th Floor, Sapphire Plaza Plot No. 80, S.No. 232 New Airport Rd Near Symbiosis College Sakore Nagar, Viman Nagar Pune Maharashtra-411014   Khushnuma Communication F-607, Main Wazirabad Road Khajuri Khas, Delhi-110094		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		22.08.2016 04.09.2020 04.09.2020

Mr. Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, case of the complainant is that he has purchased an Zolo Q 900S Plus Mobile phone bearing IMEI no. 911372250615565 and 911372250615573 from OP2 for a sum of Rs. 8,100/- inclusive of VAT on 27.08.2015 vide book no. 07 / serial no. 349 and on recommendation of OP2 to get the subject mobile phone insured from OP1, the complainant took the mobile insurance plan of Syska Gadget Secure (OP1) vide coupon no. / scratch card no. 17420635 and SGI card no. 599-76062185 was issued by OP1 to the complainant for period of one year for protection against physical damage and theft for which the complainant paid an additional amount to OP2. The subject mobile phone got damaged on 07.04.2016 when it accidently got dropped by the complainant while taking it out from his pocket. The complainant immediately contacted the OP2 to avail of the physical damage claim and submitted all the requisite documents viz ID proof, original bill and policy card with OP2 and followed up the matter with OP2 on several occasion by personal visit and telephone calls but only given false assurance and finally on 30.05.2016, when the complainant’s brother called up the help line no of OP1 he was informed that his claim was rejected due to delayed intimation reported after 48 hrs. of the date of damage whereas the complainant had actually adopted the right recourse and had duly informed both OPs about the damage on the same day that it occurred. The complainant feeling aggrieved at the wrongful rejection of his claim got a legal notice dated 31.05.2016 issued through is counsel to both OPs demanding process of his damage claim by way of repair of his mobile phone but the same went unheeded too by both OPs. Therefore alleging deficiency in service on the part of OPs for having failed to honor the terms and conditions of the insurance policy which made them liable to get the subject mobile repair in the event of damage as being fully secured on the date of damage, thereby causing him mental and physical harassment, the complainant filed the present complaint against OPs praying for issuance of direction to OP1 to repair the subject mobile free of cost under the damage insurance claim policy and both OPs to pay compensation of Rs. 50,000/-to the complainant for mental and physical harassment and loss of reputation.
2. Complainant has attached copy of retail invoice of the purchase of the subject mobile phone issued by OP2 and copy of scratch card / coupon issued by OP1 and copy of legal notice dated 31.05.2016 issued by complainant’s counsel to OPs alongwith dispatch postal receipt.
3. Notice was issued to the OPs on 06.09.2016. None appeared on behalf of OP1 & OP2 despite service effected on both on 21.09.2016 and 27.09.2016 respectively and therefore both OPs were proceeded against ex-parte vide order dated 15.11.2016.
4. Ex-parte evidence by way of affidavit and written arguments were filed by the complainant in hearing held on 16.12.2016 and 01.05.2017 respectively and the matter was reserved for order on 26.05.2017 by the erstwhile bench but was not passed. In reopening of the case before the present bench on 16.07.2018, the complainant despite fresh notice failed to appear for four successive hearing till August 2019 and entered appearance in November 2019 when the counsel for OP1 also appeared and on submission made by him to get the mobile phone repaired, the complainant was directed to produce the subject mobile phone before this Forum for physical inspection by the technical engineer of OP1 on the next date of hearing.
5.  We have heard the argument addressed by the complainant through video conferencing and have examined the documents placed on record. Barring the purchase invoice and print out of gadget secure plan, the complainant has not placed on record any document by way of any proof of payment or consideration paid to OP2 towards mobile insurance or any correspondence pertaining to damage claim. Even on merits, the complainant has utterly failed to prove and establish the role of OP2 in the complaint barring filing a stray page of print out of mobile insurance coupon no. 54236945 issued by OP.  No terms and conditions or policy certificate or a cover note which bears the name of OP2 or its scratch card depicting the card no. with bar code has been placed on record by the complainant. Complainant has also failed to place on record any proof of submission of documents with OP2 pertaining to damage claim or any acknowledgement of receipt thereof or the allegedly damage mobile before this Forum. When the complainant was asked to produce the subject mobile phone for examination by this Forum, he submitted that it is no longer in his possession and has been discarded. In view of the subject case property not being in existence or in possession of the complainant, the present complaint is not maintainable and moreover, in our view, even on merits, the complainant has failed to prove his own averments. The Hon'ble National Commission in Pushpa Bhutani Vs HUDA, Hissar (2006) 3 CPR 239 held that a complaint cannot be allowed if complainant is unable to prove his averments and also held in Shahenn Khan Vs Oriental Insurance Co. Ltd. (2006) 3 CPR 15 (NC) that best evidence should not be withheld from Forum while dealing with a claim of deficiency in service regarding settlement of insurance claim.
6.  We therefore do not find any merits in the present complaint and following the principle laid down by Hon'ble National Commission in Pushpa Bhutani Vs. HUDA, Hisar (2006) 3 CPR 239 (NC) and Shahenn Khan Vs. Oriental Insurance Co. Ltd. (2006) 3 CPR 15 (NC), dismiss the present complaint as the complainant has been unable to prove his own averments and has withheld his best evidence from the Forum and even was not in possession of the case property which could or may have supported his allegations against the OPs.
7.  Let a copy of this order be sent to each party free of cost as per Regulation 21 (1) of the Consumer Protection Regulations, 2005.
8.   File be consigned to record room.
9.   Announced on  04.09.2020

 

(Arun Kumar Arya)      President

(Sonica Mehrotra)  Member