BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.466 of 2015
Date of Instt. 02.11.2015
Date of Decision: 02.08.2017
Shanky Chawla aged about 29 years son of Sh. Suresh Chawla, R/o 77, Modern Colony, Jalandhar.
..........Complainant Versus
1. M/s DNA Mobile, 53, Anand Valley, Janakpur, Kolkatta, Through its Manager/Authorized Signatory (Mobile No.0336499633)
2. The New India Assurance Co. Ltd, 36, Govind Niwas, G.T. Road, Jalandhar, through its Mg. Director.
3. The Mg. Director, Apple India Pvt. Ltd, NO.24, 19th Concord Tower C, UB City Vittal Malaya Road, Bangalore, 560001.
4. M/s B2X Service Solutions India Pvt. Ltd., Business Bay Ground Floor, 182-R, Model Town, Jalandhar, Through its Manager/Official/Mg. Director.
5. Johny Prop., Mobile House, EK-231/1, Old Division No.3 Market, Phagwara Gate, Jalandhar through its Partner/Authorized Signatory.
….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh, (President)
Sh.Parminder Sharma (Member)
Present: Sh. Navjot Singh, Adv Counsel for complainant.
OP No.1 given up.
Sh. AK Arora, Adv Counsel for OP No.2.
Sh. RS Sarna, Adv Counsel for OP No.3.
Sh. Umesh Ohri, Adv Counsel for OP No.4.
OP No.5 exparte.
Order
Karnail Singh (President)
1. This complaint filed by complainant, wherein alleged that he purchased one mobile handset I-Phone-6 16 GB having IMEI No.359226065151522 vide invoice No.470 dated 23.04.2015 for Rs.48,500/- from the OP No.5. The above said mobile has been purchased by paying heavy consideration amount and at the time of purchasing the said mobile, the same was got insured as asked and offered to the complainant by OP No.5 and further OP No.5 assured that the OP No.1 has tie up with leading insurance co. i.e. OP No.2 and OP No.5 further assured the complainant that in case of any damage to the mobile, the claim of the same will be duly given and for that very purpose, the OP No.5 also took the liability to fulfill the claim in case of any damage to the mobile. On the above said promise, the complainant purchased and insured the above said mobile from the OP No.1, whose representative was also sitting at the shop/showroom of OP No.5. The said employee of the OP No.1 fulfilled all the formalities and after taking the payment amounting to Rs.2751/- from the complainant given the insurance cover note to the complainant vide policy reference No.536930900005530. It is pertinent to mention here that on insurance cover note on the background logo of the OP No.2 is clearly visible which clearly shows that some kind of tie up or arrangement with OP No.1. The copy of the bill and cover note of the insurance policy are attached. The said insurance policy has been taken by the complainant by paying an amount of Rs.2751/- and it covers the risk of fire, loss/damage due to accidental or liquid, burglary, snatching, theft and other forcible act and at that time, it was assured by OP No.1, 2 and 5 that anything covered in the insurance happens to the product, the same can be claimed from the OP No.1, 2 and 5.
2. That on 11.09.2015, the insured mobile got damaged and same was duly informed by the complainant within 24 hours to the OP No.1, 2 and 5 and the estimate of claim amount has been calculated to the tune of Rs.23,245/-, by the OP No.4 authorized service station of OP No.3. The copy of performa invoice given by OP No.4 is attached herewith. It is further important to mention here that another SMS as a reminder was duly sent by the complainant on 17.09.2015 and earlier SMS sent on 11.09.2015 was sent within 24 hours as required for the claim of the policy. That after the calculation of estimated cost and duly informing to the OP No.1, 2 and 5 within 24 hours about the damage caused to the insured mobile, the OP No.1, 2 and 5 were bound to make the payment of claim to the complainant, but unfortunately OP No.1, 2 and 5 keep on lingering the matter on one pretext or other and the said claim has been repudiated by OP No.1, 2 and 5 illegally and unlawfully amounting to deficiency of services on their part as there is no delay on the part of the complainant for informing about the damage of insured mobile. The reason stated by the OP No.1, 2 and 5 is absolutely false and frivolous and has been taken just to reject the rightful claim of the complainant and to cause unnecessary harassment. It is pertinent to mention here that call details showing the SMS sent to OP No.2 is attached. That by repudiating the insurance claim of the insured mobile by the OP No.1, 2 and 5 stating false reason amounts to deficiency in services and unfair trade practices on the part of the OP No.1, 2 and 5 and as such OP No.1, 2 and 5 are liable to make the payment of said claim along with interest @ 18% per annum and further stated that the OP No.3 and 4 have been made performa OPs, as the said mobile has been manufactured by OP No.3 and OP No. 4 is an authorized service centre of the OP No.3 and has given the performa invoice i.e. estimate amount/expenditure for repairing the said mobile and further submitted that a legal notice was served to the OP but all in vain and as such the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the claim amount of Rs.23,245/- with interest @ 18% per annum and further OP be directed to pay a compensation of Rs.50,000/- for mental tension and harassment and also be directed to pay litigation expenses.
3. The complainant withdraw the complaint against OP No.1, vide his separate statement dated 28.11.2016 and further notice was served to OP No.5 but despite service OP No.5 did not come present and ultimately OP No.5 was proceeded against exparte.
4. As per own version of the complainant as alleged in para No.8 of the complaint that OP No.3 and 4 are performa OPs though they were served and appeared but they being a performa OPs and no claim is demanded from them and now there remains only contesting OP No.2, who appeared through his counsel and filed reply, whereby contesting the complaint by taking preliminary objections that the complainant is not the consumer of OP No.2. OP No.2 through its Divisional Office, Jalandhar has been unnecessarily made party to the present complaint. The Divisional Office-1 at Jalandhar of the OP has not issued any policy of insurance in favour of the complainant in respect of the mobile set in question nor the OP no.2 has authorized to OP No.1 to issue policy of insurance on behalf of the OP No.2. The OP No.2 has moved an application dated 25.01.2016 for supplying of particulars of insurance in respect of the mobile handset of the complainant but no reply whatsoever has been filed by the complainant to the said application till today. The answering OP has not been able to lay its hands on the alleged insurance policy issued by the answering OP in favour of OP No.1 with a authority to insure the mobile handset of the complainant. In view of the facts explained above, the complaint filed by the complainant against the answering OP is liable to be dismissed with special and exemplary costs. On merits, all the averments as made in the complaint are categorically denied and further alleged that there is no tie up arrangement of OP No.1 with the answering OP for insurance of the mobile handset and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
5. Though, the OP No.3 and 4 also filed a written reply but as they are performa OPs as alleged by the complainant himself in Para No.8 of the complaint. Therefore the reply of the OP No.3 and 4 is not required to discuss here.
6. In order to prove his case, complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Ex.C1 to Ex.C8 and closed the evidence.
7. Similarly, counsel for the OP No.2 tendered into evidence affidavit of Smt. Poonam Sharma, Deputy Manager Ex.OA and closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. In precisely, the case set up by the complainant is only that he purchased a mobile handset I-Phone-6 16 GB on 23.04.2015 for a sum of Rs.48,500/-, from the OP No.5 and at the time of purchase, the representative of the OP No.1 was also sitting at the shop/showroom of the OP No.5 and the said representative of the OP No.1 fulfilled all the formalities and after taking the payment amounting to Rs.2751/-, insured the mobile set and gave the insurance cover note to the complainant, vide policy reference No.536 9309 0000 5530 and as such the mobile of the complainant was insured with the OP No.2 i.e. The New India Assurance Co. Ltd, which was got insured through OP No.1 at the shop of OP No.5. The insurance issued by the OP No.1 was given to the complainant with the assurance that it will cover all damages to the mobile set but unfortunately the mobile of the complainant was got damaged on 11.09.2015 and accordingly he lodged a claim regarding that for amounting to Rs.23,245/-, which was got assessed from OP No.4 and submitted to the OP No.2 but despite reminders dated 11.09.2015 and 17.09.2015, the claim of the complainant was not finalized rather the same was repudiated illegally without any solid ground and as such the instant compliant filed for recovery of the claim amount of Rs.23,245/- with compensation and litigation expenses.
10. In this complaint, the OP No.5 was proceeded against exparte, whereas the complainant himself withdraws his complaint against OP No.1 and as per version of the complainant, OP No.3 and 4 are performa OPs and as such in this complaint, the contesting OP is only OP No.2, who filed a reply and categorically denied that the OP No.2 never issued any policy of insurance in favour of the complainant in respect of mobile set rather the OP No.2 filed an application on 25.01.2016, whereby demanded the better particulars of the insurance policy but no reply nor any particulars of the insurance policy was provided to the OP No.2 and as such if the mobile set is not insured with the OP No.2, then there is no liability fastened to the OP No.2 and therefore, the complaint of the complainant may be dismissed qua OP No.2.
11. For reaching to right conclusion, we have no option except to scrutinize the documents i.e. the alleged insurance policy produced on file by the complainant which is Ex.C2, from the face of this document, it is clearly established that it is not an insurance policy because it does not disclose the name of any insurance company nor it is signed by any officer/official of the insurance company of OP No.2. So, if it is not insurance policy, then OP No.2 cannot be involved to make any payment of the claim of the complainant rather the option with the complainant is only to ask the OP No.1, who allegedly issued the said insurance policy to indemnify the complainant for misrepresentation by issuing a false and frivolous insurance policy but for the best known reason, the complainant himself given up the OP No.1, vide his separate statement and further the claim of the insurance policy cannot be fastened upon the OP No.5, who is the dealer of the mobile set. So with these observation, we do not find any force in the submission made by learned counsel for the complainant and therefore the complaint is dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
02.08.2017 Member President
