DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 388 of 16.9.2019

                                      Decided on: 20.3.2024

Vinod Kumar Singla aged 57 years son of Sh.Satpal Singla Near Railway Crossings, Court Road, Barnala, District Patiala .

                                                                   …………...Complainant

                                      Versus

1. M/s EKO Electovision Dharampura Bazar, Patiala through its Authorized Person.
2. M/s Bajaj Allianz General Insurance Company Limited, GE Plaza, Airport Road, Yerwada, Pune-411006 through its Managing Director.

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Ms.Gagandeep Gosal, President

                                      Sh.G.S.Nagi,Member    

ARGUED BY

                                      None for the complainant.

                                      Sh.Sham Lal, counsel for OP No.1.

                                      Sh.Amit Gupta, counsel for OP No.2.                                    

 ORDER

                                      G.S.NAGI,MEMBER

1. The instant complaint is filed by Vinod Kumar Singla (hereinafter referred to as the complainant) against M/s EKO Electovision Dharampura Bazar and another (hereinafter referred to as the OP/s) under the Consumer Protection Act      (for short the Act).
2. It is averred in the complaint that complainant had purchased one refrigerator make LG FF t302RPZU bearing No.802NRNK225063 for a consideration of Rs.27,200/- from OP No.1 and got  insured with OP No.2 vide policy No.OG-19-1116-9930-00000001.The fridge was brought from Patiala to Barnala and was damaged while unloading at Barnala. Complainant lodged claim No.OC-19-1101-9930-00000481 with OP No.2.
3. It is averred that complainant lodged the claim with OP No.2 but it declined the claim vide letter dated 12.12.2018 on flimsy grounds. That complainant also sent copy of invoice dated 27.12.2018 but of no avail.That the complainant has thus suffering from harassment, mental agony due to deficiency in service and unfair trade pradtice on the part of the OPs. Hence this complaint with the prayer to accept the same by giving direction to the OPs to  the sum assured of Rs.27,200/- alongwith interest @12% per annum from 5.11.2018 to 4.9.2019(Rs.272/- per month); to pay compensation of Rs.10,000/- for causing mental agony, harassment and pain and also to pay Rs.5000/- as costs of litigation.
4. Upon notice, both the OPs appeared through their respective counsels and filed separate written replied having contested the complaint.
5. In the written statement filed by OP No.1, certain preliminary objections have been raised that this Hon’ble Forum(Now Commission) has no territorial jurisdiction to entertain the present complaint; that the complainant has not approached  this Hon’ble Forum with clean hands; that the complaint is bad for non-joinder and mis-joinder of necessary parties and that the complaint is vague in nature, as such the same is liable to be dismissed.
6. On merits, it is admitted that complainant purchased one Fridge in question  for Rs.27,200/- from OP No.1. It is alleged that the LG company extended the benefit of insurance to the complainant as per scheme available at the relevant time and the item was insured by OP No.2, as per terms and conditions of the policy and the same were binding on the complainant as well as OP No.2. That it is not known to OP No.1 that when the fridge in question was brought from Patiala to Barnala and when the same was damaged while unloading at Barnala and when the complainant lodged claim No.OG-19-1101-9930-00000481 with OP No.2.That OP No.1 is a proforma party and is nothing to do with the present complaint and that the dispute if any, is between the complainant and OP No.2.That OP No.1 has only sold the fridge in question to the complainant in good/proper and working condition and the same was also checked by the complainant  while taking delivery from OP No.1 and as such OP No.1 has no concern with the present complaint. All other averments made in the complaint have been denied. OP No.1 has prayed for dismissal of complaint filed against it with costs.
7. In the written statement filed by OP No.2 it has also preliminary objections that insurance policy is a contract and both the parties are uder obligation to obey/fulfill all the terms and conditions of the same in the strict sense of the words written therein.That the complainant has filed frivolous complaint against the OP in order to extract illegal money; that OP is governed by IRDA Regulations, Rules and Procedure prescribed thereon and strictly following the guidelines issued by the authorities. It is averred that no individual can take independent decisions and the same are taken based on documentary evidence, statements and investigation report etc.That company also take advise from the professional for adjudicating the claims of its customer and thus the claim are thoroughly checked/verified by the professionals of the OP i.e. insurance company.That insurance policy exists in the name of M/s LG Electronics India Pvt. Ltd. which has not been made party to the case in hand. It is pleaded that said company has purchased one Special Contingency policy bearing No.OG-19-1116-9930-00000001 w.e.f.20.4.2018 to 19.4.2019 which is strictly subject to the terms and conditions and exclusions of the policy.That there is no privity of contract between the complainant . It is admitted that complainant intimated one claim with regard to the damage to the fridge in question on 19.11.2019 and while processing the said claim it was found that the loss has occurred on account of unloading of the fridge but the said claim is beyond the purview of the policy as per the warranty clause of the insurance policy i.e. “ This insurance cover is restricted to the address mentioned in the invoice or where the product shipped to the premises”. That there is also found dent on the refrigerator which is excluded as per exception 1 (d) of the policy.As such the claim falls outside the scope of the insurance policy and the claim of the complainant was repudiated vide letter dated 12.12.2018 and as such the complaint is liable to be dismissed.
8. On merits, the OP has reiterated the facts raised in the preliminary objections the contents of which are not repeated for the sake of brevity. After denying all other averments of the complainant, this OP also prayed for dismissal of complaint with costs.
9. In support of his complaint, complainant has tendered in evidence Ex.C1 his own affidavit alongwith documents, Ex.C2 copy of invoice, Ex.C3 copy of terms and conditions of insurance policy,Ex.C4 copy of claim form,Ex.C5 copy of mandate form for electronic transfer of claim payment, Ex.C6 copy of notice dated 27.12.2018, Ex.C7 copy of letter dated 12.12.2018, Ex.C8 copy of mail to the OP, Ex.C9 postal receipt,Ex.C10 copy of Aadhar card and closed evidence.
10. The ld. counsel for OP No.1 has tendered in evidence Ex.OPA affidavit of Sh.Jasbir Singh, Prop and closed the evidence.
11. The ld. counsel for OP No.2 has tendered in evidence Ex.OPB affidavit of Saurav Khullar alongwith documents, Ex.OP1 copy of policy alongwith terms and conditions, Ex.OP2 copy of claim form, Ex.OP3 copy of letter dated 12.12.2018 and closed evidence.
12. At the time of arguments, none appeared on behalf of the complainant. We have heard the ld. counsel for the OPs and have also gone through the record of the case, carefully.
13. It is the admitted case of the parties that the complainant has purchased the refrigerator in question vide invoice No.25515 dated 5.11.2018 from OP No.1 for a consideration of Rs.27200/- copy of which is Ex.C2. The refrigerator was insured for a period of one year from the date of purchase vide master policy No.OG-19-1116-9930-00000001 with registration No.90041414216266 as per Ex.C3. When the said refrigerator was transported from Patiala to Barnala the same got damaged at the time of unloading at Barnala on the intervening night of 5-6-11.2018.A claim was then lodged with OP No.2 against the said insurance policy, the copy of the claim form is Ex.C4 alongwith a copy of mandate form for electronic transfer of claim as per Ex.C5. The copy of invoice was submitted to the OPs on 27.12.2018 as per letter,Ex.C6. The claim of the complainant was then rejected by OP No.2 on the grounds that “ the insurance cover restricted  to the address mentioned in the invoice or where the product shipped to the premises” and the claim falls outside the scope of the policy. As such the complainant has alleged deficiency in service and unfair trade practice on the part of the OPs and has prayed for the refund of the cost of the refrigerator alongwith compensation.
14. OP No.1 in its written reply has admitted the sale of the refrigerator as well as the benefit of the insurance to the complainant which was admissible on the sale of the LG Products without any additional cost and has stated that it is only a performa party and dispute if any lies between the complainant and OP No.2.
15. The OP No.2 has argued that the insurance policy,Ex.OP1 was between M/s LG Electronic India Pvt. Ltd. and Special Contingency and there was no privity of contract between the complainant and OP and as the complaint against OP is not maintainable. The ld. counsel further argued that the insurance policy is existed in the name of LG Electronics who has not been made a party in the case and as such OP No.2 is not liable to pay any amount of claim to the complainant.Ld. counsel further argued that loss or damage to the property by or arising from scratches, cracking and/or denting is excluded from the scope of the insurance as per Clause 1(d) of the policy.It is further argued that when the refrigerator was inspected it was found to have dents and as such the damage is excluded as per clause 1(d) of the policy. The ld. counsel has further claimed that damage to the refrigerator has  occurred at the time of unloading and the claim ldoged by the complainant is beyond the purview of the policy i.e. as per conditions this policy is restricted to the address mentioned in the invoice or where the product is shipped to the premises” and has further claimed that the policy covers the equipment post installation and any damage before the installation is not covered under the policy. The ld. counsel has further argued that the liability of OPNo.2 is restricted to 70% only and remaining 30% has to be borne by Cholomandlam Insurance who has not been made a necessary party on the complaint and has prayed for the dismissal of the complaint.
16. A perusal of the sale invoice dated 5.11.2018 indicates the party details which include the address of the party (i.e. the complainant) which is Court Road, near Railway Crossings, Barnala. It is also a fact that the refrigerator was damaged on the intervening night of 5/6-11.2018 when the same was being unloaded at the premises of the complainant in Barnala which is the same address as mentioned in the sale invoice. As such the argument of OP No.2 for rejection of the claim vide letter, Ex.C7 on the grounds that the insurance cover is restricted to the address mentioned in the invoice or where the product is shipped to the premises is not justified as the product was shipped to Barnala at the address mentioned in the sale invoice. The other argument of OP No.2 that scratches , cracking or denting is not covered and is excluded as per clause 1(d) of the policy is also unjustified as the damage to the refrigerator was caused only due to the unloading of the refrigerator and falling of the same. These were not minor scratches or dents and infact the refrigerator was damaged extensively due to the fall. The other argument of OP No.2 that the policy covers the loss to the equipment “Post Installation” and not at the time of unloading is not covered under any clause of the policy of the OP is also not justified as the material is most likely to get damaged during transportation, loading/unloading and not after installation.
17. The plea of OP No.2 that the policy in question has been issued by OP No.2 and liability of OP No.2 alongwith Cholamandlam in the ratio of 70x30% is neither a part of the policy nor has been explained to the complainant at the time of purchase of the policy. Since this clause is not a part of the policy, as such this argument of the OP is unjustified.
18. OPs No.1&2 have further taken the plea that damage to the refrigerator has occurred at Barnala and as such this Commission has no jurisdiction to try the complaint. However, as the refrigerator was purchased by the complainant from OP No.1 at Patiala as such this Commission has got the jurisdiction to try the case.
19. In view of the aforesaid discussion, we are of the opinion that rejection of the claim by the OPs is not justified and has been rejected on flimsy grounds.We accordingly party allow the complaint and direct the OPs to settle the claim of the complainant by way of refunding the amount of Rs.27,200/-alongwith interest @6% per annum from the date of purchase of the refrigerator or to replace the refrigerator with new one of the same model. Compliance of the order be made by the OPs Jointly & Severally within a period of 45 days from the date of receipt of certified copy of this order. The OPs are also directed to pay Rs.5000/- as compensation to  the complainant within the prescribed period.  
20.           The instant complaint could not be disposed of within stipulated period for want of Quorum from long time.
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                                              G.S.Nagi                       Gagandeep Gosal

                                              Member                          President