Haryana

Kurukshetra

CC/236/2019

Sunny - Complainant(s)

Versus

Lucky Mobile - Opp.Party(s)

M.K.Sharma

13 Sep 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

            Complaint No.236 of 2019

Date of Instt.:10.06.2019

Date of Decision:13.09.2021

 

Sunny son of Sh.Pawan Kumar resident of house No.3626/4, Saudagran Mohalla, Thanesar, District Kurukshetra.

 

                                                                        …….Complainant.                                              Versus

 

1.Lucky Mobile, Aggarsain Chowk, Mohan Nagar, Kurukshetra, Haryana through its Proprietor.

2. HDFC Ergo  General Insurance Co.Limited, registered office at  Ramon House, H.T.Parekh Marg, 169, Backbay Reclamation, Mumbai – 400020, India through its Manager/authorized person.

                ….…Opposite parties.

 

                 Complaint under Section  12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Shri Issam Singh Sagwal, Member.                

                 

Present:     Sh.M.K.Sharma Advocate for the complainant.

                 OP No.1 ex parte.

                 Sh.Atul Mittal Advocate for the OP No.2.

.

ORDER

                  

                 This is a complaint under Section 35 of the Consumer Protection Act, 1986 moved by  Sunny    against Lucky Mobile etc. -the opposite parties.

2.             The brief facts of the complaint  are that the complainant purchased one Mobile Phone make i phone 8 + Colour Silver bearing IMEI No.356111091357249 from OP No.1 for a sum of Rs.69000/- with one year warranty vide bill No.592 dated 1.10.2018 through Bajaj Finance. The complainant has also purchased an insurance policy under accidental damage against the said phone from OP No.2 through OP No.1 vide policy No. IM1882911. It is further submitted that on 23.12.2018, when the complainant was going on his motor cycle, unfortunately some vehicle struck the motor cycle of the complainant at turn/chowk due to which he fell down and phone  had fallen down on the road. The said mobile phone has been damaged and received multiple cracks and bend.  The complainant gave intimation to the OP no.2 in writing regarding this accident and thereafter the complainant approached the Care Centre of the  said phone i.e. Unicorn Infosolution Pvt.Limited. Sector 35-B, Chandigarh and registered his complaint regarding  the phone.  The said Care  Centre submitted his delivery report and mentioned in his report that the said phone was checked and found accidental damage, screen back panel damaged. The device needs whole unit replacement under stock price. The said phone could not be repaired and estimate regarding the said phone has been given to the complainant as Rs.59200/- vide delivery report dated 3.01.2019.  The complainant applied for claim by filing up claim form and submitted to OP no.2 and the complainant  requested to OP No.2 many times  but in vain.  Neither the claim regarding the phone has been given to the complainant  nor the  mobile phone has been  replaced.  However, the phone is fully covered under the accidental damage under the policy for a period of one year from the date of its purchase. The complainant also sent a legal notice to the OPs on 10.5.2019 through Sh.M.K.Sharma Advocate but nothing has been done which amounts to deficiency in services on the part of the OP. Thus, the complainant has filed the present complaint alleging deficiency in services on the part of the Ops and prayed for payment of claim of Rs.69000/- alongwith the compensation for the mental agony and harassment caused to him and the litigation expenses.

 

3.             Notice of the complaint was given to OP No.1. OP No.1 failed to appear despite due service. Therefore, vide order dated 10.07.2019, OP No.1 was proceeded against ex-parte.

 

4.             OP No.2 appeared and filed its written statement disputing the claim of the complainant. OP No.2 has stated that  as per version of the complaint, there is a damage/manufacturing defect in the mobile phone , then manufacturer or dealer are responsible   for rendering service to the complainant in respect of the said damages.  It is submitted that the claim lodged by the complainant if paid would amount to rewriting of insurance contract.  The insurance policy between the insurer and insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by the insurance policy, the terms and agreement have to be strictly construed to determine the extent of liability of insurer. The insured cannot claim anything  more than what is covered by the insurance policy. That the instant complaint is liable to be dismissed at the outset as the respondent dispute and deny their liability to pay any amount and compensation to the complainant as alleged. It is stated that policy is a legal contract between the policy holder and insurance company and the parties to the said contract are bound by its terms and conditions. The terms of the policy are in the nature of  the contract and their interpretation has to be made in accordance with the strict construction of the contract.  The complainant has got no cause of action to file  and maintain the present complaint against the answering OP.  That the Commission at Kurukshetra has got no territorial jurisdiction to try and adjudicate the present complaint as the policy of insurance was issued from Noida where the OP is having its office.  The OP is having no branch at Kurukshetra as such the present complaint is not maintainable  before this Commission and this Commission has no territorial jurisdiction to  That the present complaint is after thought and malafide one as voluminous and detailed evidence is required to be recorded. Thus, it is submitted that there is no deficiency in services on the part of the OP-2 and prayed for dismissal of the present complaint.

5.             The complainant in support of his case has filed affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-9 and closed his evidence.

6.             On the other hand, OP No.2 in support of its case tendered documents Ex.R-1 to Ex.R-8 and closed its evidence.

7.             We have heard the learned counsel for the parties and gone through the case file very carefully.

8.             The learned counsel for the complainant has argued that on 23.12.2019 the complainant was going on his motor cycle and some vehicle struck the motor cycle as a result of which he fell down and phone of the complainant  was  also damaged in this accident and received multiple cracks and bend. He took the mobile to the Service Centre, who prepared the estimate of Rs.59200/-. The complainant lodged the claim with the OP but the OP has failed to pay the claim to the complainant or to replace the mobile in question, therefore, there is deficiency in services on the part of the Ops.

9.             On the other hand, learned counsel for OP No.2  has argued that the complainant has not got lodged DDR or FIR regarding the accident in question and if there was an accident, then the complainant ought to have file a claim petition before the Motor Accident Claims  Tribunal and as such the OP No.2 is not liable to pay the compensation in this case because no accident is proved. It is further argued that the complainant has no cause of action to file the present complaint. It is argued that  the instant complaint is liable to be dismissed at the outset as the respondent dispute and deny their liability to pay any amount and compensation to the complainant as alleged. It is stated that policy is a legal contract between the policy holder and insurance company and the parties to the said contract are bound by its terms and conditions. The terms of the policy are in the nature of  the contract and their interpretation has to be made in accordance with the strict construction of the contract. It is further argued that the policy in question was issued from Noida office of OP and the OP is having no branch office at Kurukshetra, therefore, this Commission has got no jurisdiction to decide the present complaint  and prayed for dismissal of the present complaint.

10.            After hearing the learned counsel for the parties, we are of the view that there is no dispute as to the facts that the complainant purchased the i phone for Rs.69000/- and it was badly damaged on 23.12.2018 just after one month and a few days of its purchase.  The Care Centre prepared the estimate of Rs.59200/- for its repairs. The argument of the OP  that no FIR/DDR was lodged is devoid of any merit because no injury or damage was caused to the third party.  The complainant has also not suffered any injury in this incident.  The phone of the complainant is fully insured with the OP No.2 as on the date of incident. So far as maintainability of the complaint before this Commission is concerned, the phone was purchased by the complainant from OP No.1 at Kurukshetra and the Policy in question was issued by the OP through OP No.1 at Kurukshetra. Further damages to the phone were caused at Kurukshetra and as such cause of action in part also arose at Kurukshetra,  therefore, this Commission has got every jurisdiction to entertain and decide the present complaint. The damages to the mobile were caused here at Kurukshetra and the OP No.2 denied to pay the claim, therefore, the complainant has  cause of action to file the present complaint. The argument of the learned counsel for the OP that  both the  parties are bound by the terms and conditions of the agreement of the policy is also devoid of any merit because the complainant has not violated any term or conditions of the policy agreement and  on damages to his phone, he has sought claim amount of the insurance  so agreed between the parties. Therefore, OP No.2 is bound to compensate the complainant. As the phone has been badly damaged, therefore, the OP No.2 is liable to pay the cost of the mobile i.e. Rs.69000/- to the complainant alongwith compensation for the mental harassment and agony caused to him. Thus, there is deficiency in services on the part of the OP.

 

11.            As a result of our above discussion, we accept the present complaint and direct the OP No.2 to pay the sum of Rs.69000/- i.e. cost of the mobile to the complainant within a period of 30 days from the date of preparation of the certified copy of this order, failing which the OP No.2 shall pay interest @ 6% per annum on the amount of Rs.69000/-  from the date of this order till its actual realization.  The complainant shall also be entitled for a sum of Rs.5000/- on account of mental harassment and pain caused to the complainant and for the litigation expenses. The complainant shall  hand over the mobile phone in question to the OP No.2. The complaint qua OP No.1 stands dismissed. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open Commission:

Dt.:13.09.2021.                                                   (Neelam Kashyap)

                                                                             President.

 

 

        (Issam Singh Sagwal),        

                 Member.