Haryana

Fatehabad

CC/429/2019

Raj Kumar - Complainant(s)

Versus

Luna Mobile - Opp.Party(s)

G.S Pannu

10 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION FATEHABAD.                      

Complaint No.429 of 2019.

Date of Instt.:15.10.2019.

Date of Decision: 10.01.2024.

Raj Kumar son of Moman Ram resident of House No.262, Ward No.1, Churi Factory Wali Gali, village Hijrawan Khurd, Tehsil & District Fatehabad.

...Complainant

     Versus

1.Luna Mobiles Bigher Chowk, GT Road, Durga Mandir, Fatehabda Tehsil & District Fatehabad through its authorized person/proprietor.

2.CPP Assistance Service Pvt. Ltd. Ground Floor, Wing A,Golf View  Corporate Tower-A, Golf Course Road-42, Gurugram 120002, Haryana through its Managing Director/authorized signatory.

3.M/s ICICI Lombard General Insurance Company Limited having Office address at 401-402, 4^th Floor, Interface 11, New Link road, Malad (West) Mumbai.

 

..Opposite Parties.

CORAM:   Sh.Rajbir Singh, President.                                                            Dr.K.S.Nirania, Member                                                                  Smt.Harisha Mehta, Member

Complaint U/S 12 of Consumer Protection Act, 1986

Present:                 Sh.G.S.Pannu, Advocate for complainant.                                      Sh.Rajender Goel, Advocate for Op No.2.                                         Sh.U.K.Gera, Advocate for Op No.3.                                                  OP No.1 exparte VOD 26.11.2019.                   

ORDER

Smt.Harisha Mehta, Member

1.                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (in short Act) against the opposite parties (in short Ops) with the averments that he had purchased a mobile Vivo V11 Pro bearing IMEI No.866297044984354 for a sum of Rs.25,900/- from opposite party no.1 vide Invoice No.1328 dated 22.12.2018; that the product in question was insured with OP No.2  with membership No.IM2254844 by making the payment of Rs.2574/- as insurance premium to Op No.1; that insurance was issued for one year having validity upto 21.12.2019; that the phone in question got damaged during the currency of the policy, therefore, he approached the Ops; that the Op No.2 issued job sheet AINHR 0113190400115  but despite that neither the phone was repaired nor new mobile was provided to him. The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice on their part. In evidence, the complainant has tendered affidavit Ex.C1 and documents Annexure C1 to Annexure C5.

2.                On notice, Op No.1 did not appear before this Commission despite service therefore Op No.1 was proceeded against exaprte vide order dated 26.11.2019.

3.                OP No.2 in its reply has submitted that the complainant reported the alleged loss/incident on 22.04.2019 i.e. one day before the actual alleged date of loss/incident as the actual loss has occurred on 23.04.2019, therefore, the present complaint is not maintainable. It has been further submitted that the mobile in question was insured with M/s ICICI Lombard General Insurance Company, therefore, the claim if any, is to be made by the Op No.3/ICICI Lombard General Insurance Company. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

4.                Op No.4 appeared and filed its written statement wherein several preliminary objections such as cause of action, maintainability, estoppal and complaint is false and frivolous etc. have been taken. It has been further submitted that the policy cover was subject to the due observance and fulfillment of the terms, exceptions, conditions and endorsement of the policy but the claim was closed/repudiated on not providing of bills by the complainant, therefore, there is no deficiency in service and unfair trade practice on the part of the replying Op. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the appearing Ops have placed on file affidavits Ex.RW2/A, Ex.RW3/A.

5.                We have heard oral final arguments from both sides besides going through the material available on the case file carefully. In our considered opinion, the same were almost repetitions of averments of pleadings of both sides on record.

6.                Fact regarding purchasing of hand set from OP No.1 (Annexure C31) duly insured by OP No.3 is not disputed. The complainant has come with the plea that the mobile phone got damaged during the subsistence of insurance period, which was valid for one year i.e. but the Ops did not indemnify the loss suffered by him.  It is also established on the case file that the mobile was received at service centre on 23.04.2019 (Annexure C3). In this very document it has also been mentioned that the handset is fully damaged.

7.                          As per Annexure C1, the handset was purchased on 22.12.2018 and it got damaged and regarding this claim was lodged during the subsistence of the policy.   Learned counsel for the Op No.3 has raised a plea that the claim was repudiated on the ground that the complainant had failed to provide the bill, therefore, the claim was rightly repudiated. This ground does not appear to be plausible because in general at the time of issuance of policy, the bill has been submitted/collected, therefore, this plea is nothing but to avoid the genuine claim of the complainant.

8.                          It is worthwhile to mention here that insurance is a contract, represented by a policy, in which an individual or entity receives financial protection or reimbursement against losses of the insured articles/ property/vehicle/ health etc. from an insurance company. The grievance of the complainant is that the mobile phone was fully damaged and in support this contention learned counsel for the complainant has drawn the attention of this Commission towards the job sheet (Annexure C3) issued by the service centre. It appears that the insurance company is trying to avoid the genuine claim of the complainant due to the reasons best known to it.   It is pertinent to submit here that the mandate of the Act is to protect the consumers from the hands of service providers and in this case, it appears that the insurance company, being the service provider, is not only violating the provisions of Act but also violating its own policy. Hence, the act of the OP No.3 in not indemnifying the claim of the complainant is not justified and it amounts to deficiency in service on its part.  In our considered opinion, Ops No.1 & 2 have no role to play in this case as it is the insurer, which is to indemnify the loss of the damaged mobile. Hence, the claim of the complainant against Ops No.1 & 2 is not found justified and hence rejected.  

9.                          Keeping in view the above facts and circumstances, present complaint is hereby allowed against Op No.3 only with a direction to refund a sum of Rs.25990/- to the complainant (Annexure C1) subject to depositing of damaged handset alongwith its components with it within a period of 15 days and thereafter, the Op no.3 would refund the amount thereof within 45 days from the date of receiving of the handset from the complainant. We further allow Rs.10,000/- (Rs.Ten Thousand) in lump sum, towards mental harassment and agony suffered by the complainant and also towards litigation expenses and this amount also to be paid by Op No.3. The order be complied within the given time from today failing which awarded amount would carry interest @ 9 % per annum from the date of filing of this complaint till its realization.

10.                        In default of compliance of this order, proceedings against respondents shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. This order be also uploaded forthwith on website of this Commission, as per rules, for perusal of parties herein. File be consigned to the record room after due compliance.     

Announced in open Commission.                                                           Dated:10.01.2024

                                                                                                                  

         

 

          (K.S.Nirania)                  (Harisha Mehta)                 (Rajbir Singh)                       Member                              Member                              President