BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.263 of 2015
Date of Instt. 15.06.2015
Date of Decision :03.05.2016
Aditya Sharma aged about 28 years son of Rakesh Kumar, R/o 209, Defence Colony, Jalandhar.
..........Complainant
Versus
1. M/s Chadha Mobile House Pvt Ltd., Phagwara Gate, Near Bhagat Singh Chowk, Jalandhar through its authorized signatory/owner.
2. UB Insurance Associates (Apps Daily Claim Division), S-204, 205, Suraj Plaza, 196/8, 25th Cross, 8th Mall, Jaya Nagar, 3rd Floor, Banglore-560011.
3. New India Assurance Co.Ltd., Banglore through its authorized signatory.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Bhupinder Singh (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.Amit Beri Adv., counsel for the complainant.
Sh.AK Arora Adv., counsel for the OP No.3.
Opposite parties No.1 & 2 exparte.
Order
Bhupinder Singh (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that complainant purchased mobile set Samsung S-5 on 3.6.2014 for sum of Rs.39,500/- vide bill No.11175. He also got this mobile insured from OP No.3 through OPs No.1 & 2 on payment of Rs.2499/- as per invoice No.11176. The complainant gifted the mobile set to his real uncle Gopal Sharma, Veterinary Officer. The said mobile set was stolen on 13.1.2015 by some unknown person from Veterinary Hospital, Nangal Shama, Jalandhar. Report was lodged with the police at PP Pattara, Jalandhar vide written complaint by Gopal Sharma, Veterinary Officer. On the basis of which FIR dated 21.7.2014 was registered at PS Adampur. Claim was lodged with the OP No.3 vide claim form but the OP repudiated the claim of the complainant vide letter dated 15.7.2015. The OPs has wrongly repudiated the claim of the complainant. On such averments, the complainant has prayed for directing the OPs to refund the amount of the mobile handset to the complainant. He has also claimed compensation and litigation expenses.
2. Upon notice OP No.3 appeared through counsel and filed written statement pleading that complainant after purchase of mobile set, gifted the same to his uncle Gopal Sharma and it was stolen when it was in the custody of Gopal Sharma. Therefore, the complainant has got no insurable interest in the mobile set. As per terms and conditions of the insurance policy, the beneficiary under the policy is the purchaser. However, the user of the product can be direct family member Gopal Sharma uncle of the complainant to whom the complainant has gifted, Gopal Sharma is not a beneficiary under the policy of insurance. So, the claim lodged by the complainant is not maintainable. The OP No.3 has rightly repudiated the claim of the complainant. Without admitting any liability, the claim of the complainant is subject to exclusion clause of 5% on the value of the mobile set i.e. Rs.1975/- and depreciation to the tune of 45% i.e. Rs.17,775/- as per terms and conditions of the insurance policy. In case, it is held that claim is payable under the policy, the same could not be go beyond Rs.19,750/- as per exclusion clause and depreciation as per terms and conditions of the policy. OP No.3 denied other material averments of the complainant.
3. Notice of this complaint was given to the OP No.1 & 2 but nobody has turned-up despite service and as such they were proceeded against exparte.
4. In support of his complaint, complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C8 and closed his evidence.
5. On the other hand, learned counsel for opposite party No.3 has tendered affidavit Ex.OP3/A alongwith copies of documents Ex.OP3/1 to Ex.OP3/5 and closed the evidence.
6. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.
7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant purchased mobile set Samsung S-5 on 3.6.2014 for sum of Rs.39,500/- vide invoice Ex.C1. He also got this mobile insured from OP No.3 through OPs No.1 & 2 on payment of Rs.2499/- as per detail invoice Ex.C2. The complainant gifted the mobile set to his real uncle Gopal Sharma, Veterinary Officer. The said mobile set was stolen on 13.1.2015 by some unknown person from Veterinary Hospital, Nangal Shama, Jalandhar. Resultantly, report was lodged with the police at PP Pattara, Jalandhar vide written complaint by Gopal Sharma, Veterinary Officer. On the basis of which FIR dated 21.7.2014 Ex.C3 was registered at PS Adampur. Claim was lodged with the OP No.3 vide claim form Ex.OP3/3 but the OP repudiated the claim of the complainant vide letter dated 15.7.2015 Ex.OP3/5 on the ground that as per police certificate, the mobile set was stolen from hospital table which fall under exclusion clause of the terms and conditions of the policy. Learned counsel for the complainant submitted that the mobile set was stolen from the hospital when it was in the custody of Gopal Sharma, Veterinary Officer. Moreover, no terms and conditions have been supplied to the complainant. The OPs has wrongly repudiated the claim of the complainant. The learned counsel for the complainant submitted that all this amounts to deficiency in service on the part of the OPs qua the complainant.
8. Whereas, the case of the OP No.3 is that complainant after purchase of mobile set gifted the same to his uncle Gopal Sharma and it was stolen when it was in the custody of Gopal Sharma. Therefore, the complainant has got no insurable interest in the mobile set. Further as per terms and conditions of the insurance policy, the beneficiary under the policy is the purchaser. However, the user of the product can be direct family member Gopal Sharma uncle of the complainant to whom the complainant has gifted to Gopal Sharma is not a beneficiary under the policy of insurance. So, the claim lodged by the complainant is not maintainable. Learned counsel for the OP No.3 submitted that OP No.3 has rightly repudiated the claim of the complainant. OP No.3 further submitted that without admitting any liability, the claim of the complainant is subject to excess clause of 5% on the value of the mobile set i.e. Rs.1975/- and depreciation to the tune of 45% i.e. Rs.17,775/- as per terms and conditions of the insurance policy. In case, it is held that claim is payable under the policy, the same could not go beyond Rs.19,750/- as per excess clause and depreciation as per terms and conditions of the policy. The learned counsel for the OP No.3 submitted that there is no deficiency in service on the part of the OP No.3 qua the complainant.
9. From the entire above discussion, we have come to the conclusion that complainant purchased mobile set Samsung S-5 from OP No.1 on 3.6.2014 for sum of Rs.39,500/- vide invoice Ex.C1 and he got his mobile insured from OP No.3 through OPs No.1 & 2 on payment of Rs.2499/- as detail invoice Ex.C2. The complainant gifted the mobile set to his real uncle Gopal Sharma, Veterinary Officer. The counsel for the complainant stated at bar that the family of the complainant is joint family. The said mobile set was stolen on 13.1.2015 by some unknown person from Civil Hospital Animal, Nangal Shama, Jalandhar. Report was lodged with the police at PP Pattara, Jalandhar vide written complaint by Gopal Sharma, Veterinary Officer. On the basis of which FIR dated 21.7.2014 Ex.C3 was registered at PS Adampur. Claim was lodged by the complainant with the OP No.3 vide claim form Ex.OP3/3 but the OP repudiated the claim of the complainant vide the letter dated 15.7.2015 Ex.OP3/5 on the ground that as per police report, the mobile set was stolen from hospital table. So proper care was not taken by the user and as such it fall under exclusion clause of the terms and conditions of the policy. Moreover, the mobile set was stolen from the hospital when it was in the custody of Gopal Sharma, Veterinary Officer. Learned counsel for the complainant submitted that no terms and conditions have been supplied by the OP to the complainant. The OP could not produce any evidence to prove that the terms and conditions of the policy were supplied to the complainant. The mobile set was gifted for use only by the complainant to his uncle who is residing in the same family as it was a joint family. The complainant remained the owner of the mobile set in question. The mobile set was stolen by some unknown person and in this regard FIR Ex.C3 got registered by Gopal Sharma and OP was also informed immediately. The mobile set could not be traced out by the police and as such, OP No.3 with whom the said mobile set was duly insured is liable to pay the amount of the mobile set to the complainant. OP has wrongly repudiated the claim of the complainant. The plea of the OP that as per exclusion clause of the terms and conditions of the policy 5% of the value of mobile set i.e. Rs.1975/- and depreciation to the tune of 45% i.e. Rs.17,775/- as per terms and conditions of the police are to be deducted. Here we do not agree with the contention of OP No.3 because no terms and conditions of the police have been supplied by the OP. As such, these excess clause or exclusion clause are not applicable/binding upon the complainant. OP No.3 is liable to pay the entire amount of the mobile set to the complainant.
10. Resultantly, we allow the complaint with cost and OP No.3 is directed to pay the amount of the mobile set i.e. Rs.39500/- i.e. insured price of the mobile set to the complainant within one month from the date of receipt of copy of this order failing which OP No.3 shall be liable to pay interest @Rs.9% per annum from the date of filing of the complaint till the payment is made to the complainant. The OP No.3 is also directed to pay Rs.2000/- as cost of litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Bhupinder Singh
03.05.2016 Member Member President
