Punjab

Ludhiana

CC/15/376

Dinesh Kumar - Complainant(s)

Versus

M/s Gupta Music Cafe - Opp.Party(s)

Alok Mohindra Adv.

26 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 376 of 10.06.2015

Date of Decision          :   26.09.2016

 

Dinesh Kumar, Advocate, Chamber No.230, 2^nd Floor, Lawyers Chamber Complex, District Courts, Ludhiana. 

….. Complainant

Versus 

 

1.M/s Gupta Music Café, Shop No.1, Hotel Le-Classic Tower, Mata Rani Road, Ludhiana, through its Proprietor Shri Vishal.

2.New India Assurance Co.Bangalore.

3.New India Assurance Co.Ltd, Mall Road, Ludhiana.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.Alok Mohindra, Advocate

For OP1                         :       Sh.D.K.Sareen, Advocate

For OP2 & OP3             :       Sh.M.S.Jassal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased a mobile phone bearing model No.A-310 of Micromax make with distinctive IMEI No.911375706343187 from OP1 on 9.10.2014 for consideration of Rs.12,100/- against invoice No.26940 dated 9.10.2014. OP1 represented at the time of sale of the mobile phone that the said mobile phone was duly insured with OP2 and amount of premium included in the sale price. Op1 further represented the complainant as if he had made an arrangement with OP2 qua insurance policy. OP1 issued policy No.670302/46/13/24/00000008 with validity period of 12 months from the date and  time of installation of mobile application. That installation took place at the time of purchase of the mobile phone and as such, policy alleged to be effective w.e.f.9.10.2014 itself. During the subsistence of the policy, someone picked the pocket of the complainant for taking the mobile phone out, when the complainant was going on foot near Clock Tower, Ludhiana. By the time, the complainant felt that his mobile phone has been stolen from his pocket by someone, the said person disappeared. Complainant could not locate that person inspite of his best efforts. Thereafter, the complainant lodged DDR No.11 with Unique ID 767300 dated 3.1.2015. Police could not trace out the person, who committed theft. That mobile phone remained untraced till date. As theft of the mobile phone committed during the subsistence of the policy and as such, keeping in view the act of Ops in not releasing the insurance amount, directions sought against Ops for calling upon them to pay Rs.12,100/-, the price of the mobile phone along with compensation of Rs.50,000/- for mental tension, agony and harassment. Deficiency in service on the part of Ops pleaded.

2.                Op1 submitted written statement by claiming that the complaint against him is not maintainable because he after sale of the product issued policy on instructions of OP2 and OP3 only, due to which, latter alone are liable to make the payment for the alleged loss suffered by the complainant. Factum of purchase of mobile phone in question by the complainant from OP1 and issue of insurance policy in question not denied through this written statement. No notice was sent to OP1 on 20.4.2015 and as such, question of sending reply does not arise. OP1 has never repudiated any claim of the complainant and as such, by denying each and every other allegations of the complaint, prayer made for dismissal of the complaint.

3.                In joint written statement filed by Op2 and OP3, it is pleaded interalia as if complaint not maintainable because the insurer is not liable for the loss, due to mysterious disappearance, missing or misplacement or if the handset left unattended at any point of time or for any unexplained loss. Admittedly, the complainant purchased the insurance policy in question for the mobile phone for the period from 9.10.2014 to 10.10.2015. After receipt of the claim along with other documents from the complainant, Ops got knowledge as if the complainant has not submitted the required documents immediately as per the terms and conditions of the insurance policy. So, in view of the exclusionary clauses of the insurance policy, the claim of the complainant was repudiated by the Ops on 3.5.2015. That repudiation letter was duly sent to the complainant. Repudiation of the claim alleged to be legal and valid as per exclusionary clauses of the policy and as such, it is claimed that there is no deficiency in service on the part of Ops.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C8 and thereafter, his counsel closed the evidence.

5.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.RA1 of Sh.Parmod Kumar, Proprietor of OP1 and then closed the evidence.

6.                Counsel for OP2 and OP3 tendered in evidence affidavit Ex.RA2 of Sh.R.M.Bhatnagar, Manager in Regional Office of New India Assurance Company Limited along with documents Ex.R1 to Ex.R3 and then closed the evidence.

7.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

8.                 From the pleadings of the parties, it is made out that the mobile phone in question purchased by the complainant from Op1 for Rs.12,100/- through invoice No.26940 dated 9.10.2014 Ex.C1=Ex.R1, which was duly insured with OP2 and OP3 and that is why the insurance policy cover note Ex.C2 was issued. The complainant lodged DDR with the police, copy of which has been produced on record as Ex.C3. After lodging  this DDR, the complainant lodged the claim with OP2 and OP3, but the same was repudiated vide letter Ex.R3 and that is why the complainant issued legal notice Ex.C5 through postal receipts                   Ex.C6 to Ex.C8. Ex.C4 is the proof of identity of the complainant as an Advocate. Repudiation of claim contended to be illegal because it is claimed that on account of loss of the insured product within the insurance period, Ops bound to make the payment.

9.                After going through repudiation letter Ex.R3, it is made out that the complainant did not submit the pre-requisite documents and that is why the claim was found to be falling under the exclusionary clauses of the policy. Which pre-requisite documents not submitted by the complainant, qua that Ex.R3 is silent and no other proof produced to show as to what documents were required to be submitted by the complainant. In view of that, contents of Ex.R3 are vague as to which, pre-requisite documents were not submitted. So, virtually rejection of claim on this ground does not assign due reasons. Even if that be the position, despite that it has to be ascertained as to whether the repudiation of claim for the second reason is justified or not?

10.              After going through the contents of Ex.R3, it is made out that second ground for rejection of the claim is that the insurer did not take due care of his mobile handset and that is why the claim was repudiated by keeping in view the fact that the insured is liable for the loss due to mysterious disappearance, negligence on the part of user or on account of forgotten or of misplacement or of loss or due to handset left unattended. Terms of insurance policy contained in Ex.C2=Ex.R2 provides for no claim if the loss is due to mysterious disappearance, forgotten, missing or misplacement or if handset left unattended at any point of time or any unexplained loss. The loss in this case of the mobile phone virtually has remained unexplained and as such, repudiation of the claim due to mysterious disappearance is fully justified. After going through the produced copy of DDR Ex.C3, it is made out as if report of missing mobile phone lodged on 3.1.2015 by claiming that said disappearance was sudden. Though, complainant through complaint projected in so many words that someone committed theft of his mobile phone by picking his pocket, but in fact the same is not disclosed by contents of Ex.C3. Rather, through Ex.C3, disappearance of the mobile phone claimed without disclosing the circumstances, in which, the said disappearance of the mobile phone in       question took place. So in the earliest ever report lodged by the complainant      with the police, complainant himself claimed the mysterious disappearance of the mobile phone. Now the complainant with a view to wriggle out from the terms and conditions of the policy in question has put forth an afterthought version through complaint as well as through evidence or the served legal notice as if someone picked his pocket for taking out the mobile phone from the same. Why different story qua picking of pocket disclosed through complaint or through notice or in evidence qua that no explanation coming forth and if that be the position, then keeping in view the contents of Ex.C3, it has to be held that it is a case of mysterious disappearance of the insured mobile phone in question. Complainant failed to give due explanation of the circumstances leading to the mysterious disappearance and as such, certainly the case falls under the exclusion clauses appearing at page of Ex.C2. So repudiation of claim is justified.

11.              As per law laid down in case of National Insurance Co.Ltd. and another vs. D.P.Jain and others-2007(2)CLT-468(N.C.), if exclusionary clauses are not explained, then they are not binding upon the insured. In view of this, it is vehemently contended by the complainant that as exclusionary clauses not explained to the complainant and as such, his claim liable to be accepted. In the reported case, it was found that at the time of hearing of matter, learned counsel for the dealer claimed that as it was not necessary to explain the exclusionary clauses because only one standard cover is there. That is not pleaded in the case before us and as such, facts of the reported case are quite distinct than the case before us, particularly when the complainant being an Advocate by profession himself has produced the insurance cover note Ex.C2 knowing-fully well that exclusionary clauses in question contained therein. Production of this insurance cover note Ex.C2 by an educated person i.e. an Advocate, itself reflect as if the complainant was made aware of these exclusionary clauses and that is why plea not raised in the complaint or through notice that exclusionary clauses were not made known to the complainant. Rather, the complainant has taken a different stand of theft of mobile phone than that of the contents of DDR Ex.C3 qua mysterious disappearance of the mobile phone in question. A party who himself takes different stands at different times definitely suppressing the material facts and as such, due to suppression of material facts, benefit from the ratio of above cited case can’t be availed by the complainant.

12.              In case titled as United India Insurance Co.Ltd. vs. Kusum Gupta-2007(2)CPJ-320(Delhi State Consumer Disputes Redressal Commission, New Delhi), it was found that the complainant was illiterate and was not explained the terms of the exclusionary clauses. However, the complainant is literate in the case before us and as such, by keeping in view the above discussion in mind, the complainant is not entitled to benefit of ratio of this case.

13.              Ratio of case titled as Avneet G Singh vs. ICICI Lombard General Insurance Company Limited and others-2014(2)CLT-374(Chandigarh State Consumer Disputes Redressal Commission, U.T.Chandigarh) lays that when two interpretations are possible, from the contents of documents, then the interpretation favourable to the consumer is required to be taken into consideration. After going through para no.14 of the above cited case, it is made out that discharge summary of the complainant of that case disclosed as if she was not suffering from Dengue fever, but she treated for pregnancy related complications and that is why the above said observation was made by the Hon’ble State Commission. However, in the case before us, the document produced by the complainant himself as Ex.C3 proves that the insured mobile phone stood misplaced suddenly under mysterious disappearance circumstances and that is why report for theft due to picketing of the pocket                              was not lodged specifically by the complainant, by an Advocate by profession. So, facts of the reported case are distinct then those of the facts of the case before us. In case titled as M/s Jayaswals Neco Limited vs. M/s Rita Machines (India) Limited-2006(2)PLR-764(Punjab & Haryana High Court), it was found that stand taken by respondent in the written statement was an afterthought and introduced only for the purpose of raising plea and that is why, the averments made in the written statement were found evasive for holding that the respondent has not come out with clean and categorical stand. Same is the position in the case before us because afterthought version qua theft introduced subsequent to the lodging of DDR Ex.C3 just for creating a story. A person who suppresses the material facts by creating story not entitled to any relief because protection to the Consumer under the Consumer Protection Act, 1986 available only in case, the claim is genuine.

14.              Therefore, as a sequel of the above discussion, complaint dismissed by leaving the parties to bear their own costs. Copies of order be supplied to the parties free of costs as per rules.

15.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:26.09.2016

Gurpreet Sharma.