BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.72 of 2017.
Date of Instt.:17.03 .2017.
Date of Decision: 15.11 .2017.
Kapil Kumar son of Sh.Pawan Kumar, resident of H.No.32, Ward No.8, Pardeshi Wali Gali, DSP Road, Fatehabad, Tehsil and District Fatehabad.
..Complainant
Versus
1.M/s Khurana Mobile Gallary, Shop no.103, Palika Bazar, Fatehabad, Tehsil and District Fatehabad, through its Owner Gaurav Kumar.
2.The Oriental Insurance Company Ltd., Branch Fatehabad, through its Branch Manager.
..Respondents/OPs`
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh.Vikash Khatak, Adv. for the complainant.
Sh.U.K.Gera, Adv. for the OP No.2.
OP No.1 already ex-parte.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OPs with the averments that he purchased a mobile model Samsung J-7 Prime (Gold) for a total consideration of Rs.19,400/- from Op No.1 vide Bill No.16297 dated 13.09.2016. At that time the complainant also obtained an insurance policy from the OPs and he also made a payment of Rs.184.30 as premium to Op No.2. It is further submitted that on 16.10.2016 the said mobile was misplaced or stolen on the old DSP road, Fatehabad. Therefore a DD entry was got recorded by the complainant in the Police Station City Fatehabad on 06.11.2016 vide report No.033. Thereafter, the complainant submitted a claim before OP No.2 for making payment as per the insurance policy. However the said insurance claim has not been paid to the complainant till date. It is further submitted that the complainant is entitled for insurance claim amounting to Rs.19,400/- from the OPs along-with compensation on account of mental agony and physical harassment suffered by him. Hence, this present complaint.
2. On notice Op No.2 appeared and resisted the complaint by filing a written version wherein various preliminary objections with regard to cause of action, locus-standi, maintainability, non-joinder of necessary parties etc. have been raised.
3. On merits, it is submitted by Op No.2 that as per the terms and conditions of the policy in case of theft or lost, FIR is required with untraceable report. Missing report is not acceptable whereas in the present case only missing report has been made by the complainant before the City Police, Fatehabad and no FIR in the matter have been got registered. Therefore as per terms and conditions of the policy the complainant is not entitled for any insurance claim and as such the present complaint is liable to be dismissed.
4. OP No.1 despite proper service did not appear and as such he was proceeded exparte.
5. In evidence the complainant tendered his affidavit as Annexure CW1/A along-with documents as Annexure C1 to Annexure C7. On the other hand on behalf of Op No.2 Sushil Kumar, Divisional Manager tendered his affidavit as Annexure R1. The OP No.2 also tendered in evidence documents as Annexure R2 to Annexure R6.
6. The learned counsel for the complainant in his arguments reiterated the submissions made in the complaint and further contended that claim of the complainant falls within the purview of the policy and he is entitled for claim along-with compensation whereas the claim has been repudiated by the OPs wrongly and illegally. It is also further contended by the learned counsel for the complainant that in the claim form it has been stated by the complainant that either the mobile in question was misplaced or it has been stolen by anybody. Therefore the case of the complainant is fully covered by the insurance policy.
7. On the other hand the learned counsel for the Op no.2 reiterated the submissions made in the written version and further contended that the action of Op No.2 in repudiating the claim of the complainant is perfectly in accordance with the terms and condition of the policy and sustainable in the eyes of law.
8. We have duly considered the pleadings of both the parties, have examined the arguments advanced by learned counsel for the parties and have also appreciated the evidence produced on record of the case. We are of the considered opinion that the complainant has not been able to prove any deficiency on the part of OPs in repudiating the claim. From perusal of DD entry No.033 dated 06.11.2016 it is revealed that the complainant made a statement before the police that the mobile in question was misplaced on 16.10.2016 on the old DSP Road, Fatehabad. From the above statement no criminal case was made out and as such a DD Entry regarding the misplacement of mobile was recorded by the concerned police. Therefore is it a case of misplacement of mobile and the same is not covered by the condition No.3 of policy’s terms and conditions which is reproduced is as under:-
(3). In case of lost or theft only FIR is required with non-traceable report. Missing report is not acceptable.
9. It is a settled proposition of law that terms and conditions of policy constitutes a contract between the parties and both the parties are bound by the terms and conditions of the policy. Reliance is placed on the judgment rendered by Hon’ble Supreme Court in case titled as Suraj Mal Ram Biwas Oil Mills Vs. United India Insurance Company IV(2010) CPJ 38(SC) and Aman Kapoor Vs. National Insurance Company decided on 17.04.2017 by National Commission.
10. In the present cases the case of the complainant does not fall within the purview of the terms and conditions of the policy as such he is not entitled for the insurance claim.
11. In view of the aforesaid discussion the present complaint is hereby dismissed with no order as to costs. A copy of this order be furnished to both the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.17.11.2017
(Ansuya Bishnoi) (R.S.Panghal) (Raghbir Singh)
Member Member President
DCDRF, Fatehabad
