Delhi

North East

CC/407/2015

Sandhya Garg - Complainant(s)

Versus

M/s Smile Talk - Opp.Party(s)

15 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 407/15

 

In the matter of:

 

	Smt. Sandhya Garg W/o Sh. Tarun Kumar R/o 1/328E-45, Mansarover Park Shahdara, Delhi.	Complainant
	Versus
1.             2.         3.	M/s Smile Talk H.No. 1/2391, Main Mandoli Road, Ram Nagar Extn. Shahdara, Delhi-32. B.O. 1/4370, Main Mandoli Road, Ram Nagar Extn. Shahdara, Delhi-32. Through its Prop/A.R.   National Insurance Company 3, Middleton Street, Prafulla Chandra Sen Sarani, Kolkata, West Bengal-700071 Through it’s A.R.   M/s Syska Gadget Secure 29, Akshay Complex off Dhole Patil Road Pune District Maharashtra, India-411001, Through its Manager	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

16.10.2015 14.05.2018 15.05.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that she had purchased a mobile phone Micromax AQ-5001, IMEI No. 911417752629214 on 14.07.2015 for a sum of Rs. 8,700/- vide bill No. 468/23392 from OP1 (retailer) and got the said mobile phone insured by OP3 (Insurer) through OP1 and for the purpose of insurance of the above mobile phone of the complainant, OP1 received an amount of Rs. 599/- on 14.07.2015 vide book No. 468 and bill No. 23393 and the OP1 mentioned the barcode of OP3 in the said bill as 27845388 and battery No. 46465954. It has been further submitted by the complainant that on 20.08.2015 at about 6:45 AM, the above mobile phone having SIM No. 8285988925 was stolen by some unknown boys from the son of the complainant near G.T. Road Flyover, Mansarovar Park, New Delhi. The son of the complainant immediately lodged FIR bearing No. 0398 dated 20.08.2015 with PS Mansarovar Park under section 379 IPC. Thereafter the complainant as claimed that she approached OP3 many times and told about the incident but OP3 denied any claim on one pretext or another. It has been stated by the complainant that since she is the consumer of the OPs and the OPs are service provider as well as insurer who have failed to provide compensatory claim to the complainant and as such there is deficiency in service on their part, they are liable to compensate the complainant upto Rs. 20,000/- for mental torture, harassment, loss of valuable time, work loss caused by the OPs jointly and severally on their part. It has been further submitted that since 20.08.2015 till date, the complainant is suffering loss and mental agony and it is all because of negligent and non cooperate attitude of all the OPs for which the OPs are liable jointly and severally to pay compensation @ Rs.100/- per date since 20.08.2015 till final realization of the complaint. The complainant had sent a legal notice dated 07.09.2015 to the OPs through speed post regarding the above problem but the OPs never replied to the said legal notice. The complainant has further submitted that OP2 and OP3 being the insurance service provider and company are jointly and severally liable to compensate the complainant for their deficiency in service. Lastly the complainant was constrained to file the present complaint praying for directions before this Forum that OPs be directed to compensate the complainant by giving the insurance claim for the aforesaid insured mobile phone which cost Rs. 8,700/- alongwith compensation of Rs. 20,000/- for mental agony and harassment caused by the OPs. Further the complainant has sought directions to OPs for giving a new mobile phone with other accessories and also grant of cost of Rs. 5,000/- as litigation expenses.

The complainant has attached a copy of FIR dated 20.08.2015 lodged with PS Mansarovar Park, Delhi regarding theft complaint of the said mobile phone, copy of retail invoice No. 23392 dated 14.07.2015 towards the purchase of Micromax mobile for a sum of Rs. 8,700/- from OP1, copy of Syska Gadget Secure bill No. 23393 dated 14.07.2015 issued by OP1 for an amount of Rs. 599/- and a copy of legal notice dated 07.09.2015 address to all the three OPs with postal receipts.

2. Notices were issued to the OPs on 21.11.2015 for appearance before this Forum on 18.12.2015 which were delivered to the OPs vide track report. However, none of the OPs appeared before this Forum despite service effected on 24.11.2015 and 26.11.2015 and as such, vide order dated 08.02.2016, all the OPs were proceeded against Ex-parte.
3. Ex-parte evidence by way of affidavit and written arguments were filed by the complainant on 02.03.2016 and 13.05.2016 respectively wherein she reiterated her grievance made in her complaint.
4. Complainant has filed an application on 04.12.2017 attaching copy of policy document of OP2 and also terms and conditions of OP2 supplied to the complainant in which OP2 admitted to providing services and arranging insurance cover with OP3 (NIC). The said policy document, in particular clause V mentions the duties of the insured in the event of laws specially sub clause A, C and E wherein it is stated that in the event of a loss the insured must notify his service provider as soon as possible to suspend service who will use technology to restrict the use. Further the insured has to file a police complaint in an appropriate jurisdiction and all documents showing the compliance must be submitted alongwith the claims. Further the insured must report the loss promptly to OP2 not later than 48 hours from the date of loss and in case the insured does not report the loss within the prescribed time he shall forfeit his claim. Moreover all the claim were to be submitted to OP2 through authorized representative for their approval and in case any claim is not submitted through the authorized representative for the approval of OP2, the same will not be honored and fulfilled. It is also specifically mentioned that for loss resulting from attempted theft vandalism or lost equipment, the insured must provide the OP2 with a detailed proof of loss statement, a police report, case number and / or copy of police report within 48 hours of the date of loss. However, from the perusal of the evidence submitted by the complainant, no intimation was given by the complainant to authorized representative of OP2 or submission of claim with OP2 was done by the complainant nor any claim form has been filed or exhibited.
5. We have heard the arguments addressed by the complainant and have also gone through the evidence submitted by her in support of her contentions.

We are of the considered view that the complainant did not take the requisite steps to lodge the claim with OP2 as per the prescribed norms / duties in the terms and conditions of the policy documents under which the product was insured by the OPs and in the event of non compliance of terms and conditions the claim could not be registered, honored and fulfilled by the OPs. The complainant did not place on record any proof of intimation in writing to OP3 about the theft case / insurance claim and has not been pro active in pursuing her own complaint with either of the OPs. Nonetheless even the OPs despite legal notice dated 07.09.2015 by the complainant did not take any note of her grievance and never appeared before this Forum to explain their conduct and as such are liable to compensate the loss suffered by the complainant on account of her insured mobile phone being stolen, for which the FIR was lodged on the same day with the concerned police station. Therefore in view of the absence of any rebuttal by the OPs but keeping in mind the inaction on the part of the complainant in not filing claim with the OP2 despite being aware with terms and conditions of the policy documents, we are inclined only to grant a compensation of Rs. 5,000/- towards litigation charges which the complainant has incurred by way of present complaint payable by all the OPs jointly and severally payable to the complainant within a period of 30 days from the date of receipt of copy of this order.

6.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on 15.05.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member