Complaint filed on: 19.06.2015
Complaint Disposed on:07.12.2016
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.101/2015
DATED THIS THE 7th DAY OF DECEMBER 2016
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT:
Ithihas Gowda
S/o H.B.Jayaram
Aged about 21 years,
Vijayapura Extension,
Chikamagalur City.
(By Sri/Smt. H.M.Sudhakar, Advocate)
V/s
OPPONENT:
1. M/s Sony India Private Limited,
A-31, Mohan Co-operative
Industrial Estate,
Mathura Road,
New Delhi – 110 044.
2. M/s Sangeetha Mobiles
Private Limited,
Sri Lak, M.G.Road,
Chikamagaluru – 577 101.
3. The Manager,
Oriental Insurance Co. Ltd.,
Branch Office,
Basavanahalli Main Road,
Chikamagaluru – 577 101.
(OP-1 – Ex-parte)
(OP-2 By Sri/Smt. S.N.Madhu,Advocate)
(OP-3 By Sri/Smt. N.Devendra Kumar, Advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP Nos. 1 to 3 alleging deficiency in service in not paying the claim amount towards the physical damage of the mobile handset. Hence, prays for direction against OP Nos. 1 to 3 to pay the claim amount towards physical damage along with compensation of Rs.50,000/- for deficiency in service.
2. The brief facts of the complaint is that:
The complainant had purchased one Sony Xperia Z1 Compact Black Mobile handset from OP No.2 on 05/07/2014 by paying Rs.34,295/-. The said handset is manufactured by OP No.1 and OP No.2 is the dealer and OP No.3 is the insurer of the mobile handset.
At the time of purchase of mobile handset OP No.1 issued invoice No.SI/XKM/1857 along with policy issued by OP No.3. The policy bears No.500400 / 42 / 14/05/00000155 and covers the risk for the period of one year from the date of purchase.
During the warranty period and policy is in force, the mobile handset of the complainant physically damaged due to which it was not working properly and due to non working of the mobile handset, the complainant suffered loss of communication for his day to day affairs. Immediately, he approached OP No.3 who is insurer of the mobile handset and applied for claim on the head of physical damage, but OP No.3 refused to settle the claim of the complainant without any valid reasons.
The complainant further alleges that as per the terms and conditions of the policy, the OP No.3 is bound to settle the claim of the complainant towards physical damage of the mobile handset. But OP No.3 in spite of repeated requests had not settled the claim. Subsequently, the complainant also approached the OP No.2 and complained with respect of refusal of the claim of the complainant by OP No.3 Even the OP No.2 also refused to settle the claim and stated that the said physical damage of the mobile handset does not cover in the policy of insurance. Subsequently, the complainant issued legal notice dated:24/04/2015 and called upon OP Nos. 1to 3 to settle the claim towards physical damage of the mobile handset. Even in spite of the receipt of the said legal notice, the OP Nos. 1 to 3 failed to comply the notice. Hence, OP Nos. 1 to 3 rendered a deficiency in service in not settling the claim under physical damage of the mobile handset. Hence, prays for direction against OP Nos. 1 to 3 to settle the claim along with compensation for deficiency in service.
3. After service of notice the OP No.1 not appeared before this Forum. Hence, OP No.1 placed Ex-parte. The OP Nos. 2 & 3 appeared through their counsel and filed version.
a) The OP No.2 in his version has contended that this OP is a private limited company dealing in sales of various kinds of mobile handset of various manufactures through its network of 310+ outlets situated across the country.
The complainant has purchased Sony Xperia 21 Compact Black Mobile set of OP No.1 on 05/07/2014 and at the time of sale of the product, the set was covered vide insurance policy issued by OP No.3/Company. This OP has clearly mentioned in the invoice issued by this OP that if there is any complaint, the procedure has to book a complaint through M/s Universal Insurance Brokers Services Pvt. Ltd. and receiving submission of the claim forms nor the acceptance or rejection of the claim is not within the purview of this OP. The complainant alleges that the mobile handset was physically damaged and it is not in working condition. Thereafter the complainant without intimating this OP had directly approached OP No.3 for getting relief and this OP is no knowledge that OP No.3 has not settled the claim of the complainant. The complainant also not mentioned the reason for rejection of the claim made by complainant from OP No.3. At the time of purchase of the mobile handset, they have promptly provided the service and there is no any damage or manufacturing defect in the mobile handset at the time of sale of mobile handset. Hence, submits no deficiency in service on the part of this OP and they are not liable to pay any compensation or to settle the claim of the complainant as alleged. Hence, prays for dismissal of the complaint.
b) The OP No.3 in his version has contended that they have issued policy bearing No.421100 /482014 /290 to OP No.2 which is valid from 01.02.2014 to 31.01.2016 and liability of this OP is subject to terms, conditions exceptions of the policy terms and conditions. It is true that the complainant has purchased mobile handset from OP No.2 by paying Rs.34,295/- on 05/07/2014.
The OP No.3 further contended that the complainant has not explained how the physical damage caused to the mobile handset. The policy issued by this OP is not covers physical damage of the mobile handset which caused due to incorrect storage, poor care & Maintenance, careless use, incorrect installation, incorrect setup etc.
It is not true that the policy warranty is covers physical damage caused to the mobile handset. They have not violated any terms and conditions of the policy and there is no any deficiency in service in not settling the claim of the complainant and they are not liable to pay any claim towards the damage of mobile handset and compensation to the complainant as prayed in the complaint. Hence, prays for dismissal of the complaint.
4. The complainant filed affidavit and marked the documents as Ex.P1 to P5. The OP No.3 also filed affidavit. The OP No.2 marked the documents as Ex.R1 to R4.
5. Heard the arguments:
6. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is deficiency in service on the part of OPs.
2. Whether complainant entitled for any relief & what Order?
7. Our findings on the above points are as follows:-
- Point No.1: Negative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
8. On going through the pleadings, affidavits and documents produced by both complainant and OP No.2 there is no dispute that the complainant has purchased Sony Xperia mobile handset on 05/07/2014 from OP No.2 by paying Rs.34,295/- and there is also no dispute that at the time of purchase of the mobile handset the OP No.3 issued policy covering the risk of damage, theft fire accident, etc to the mobile handset.
9. The complainant in his affidavit sworn that after purchase of the mobile handset, the handset was physically damaged due to which it was not working properly and complainant is unable to use the said mobile handset for his day to day communications. Immediately he approached OP No.3 and claimed for compensation under physical damage. But OP No.3 not settled the claim. Subsequently he claimed compensation from OP Nos. 1 & 2 who is seller and manufacturer of the mobile handset. Even they have not settled the claim. Hence, alleges deficiency in service and prays for settlement of the claim towards physical damages along with compensation.
10. On going through the documents produced by the complainant, the complainant has not explained anywhere in the document that how the physical damage was caused to the mobile handset and it is important to notice that after issuance of the legal notice as per Ex.P2, the OP No.1 replied to the said legal notice as per Ex.P5 and stated that they have inspected the mobile handset through their Engineer and the phone found to be physically damaged due to external cause and the said Engineer has given an opinion that the said physical damage was caused due to mishandling or lack of care. Hence, the mobile handset was physically damaged and further the OP No.1 also offered the complainant to exchange the said mobile handset with a new one by paying 50% discount on the new handset. But the complainant has not accepted the offer provided by OP No.1 and filed this complaint. But complainant in no way neither in his complaint nor in his affidavit has narrated the reason for physical damage. We also noticed the policy terms and conditions that under exclusion clause the physical damage due to incorrect storage, poor care and lack of maintenance, careless use, incorrect installation, incorrect set-up and negligence is not covered under the warranty of physical damage. Hence, we found there is no any deficiency in service on the part of OP Nos. 1 to 3 in not settling the claim made by complainant.
11. We observe that the complainant has purchased the mobile handset on 05/07/2014 and subsequently issued a legal notice after lapse of one year i.e. on 24/04/2015. The complainant has sufficiently used the mobile handset and damaged the handset without taking proper care. The complainant also produced the said handset before this Forum. On perusal of the said handset, the screen of the mobile handset was damaged due to may be fall to the ground. Hence, it is clear that due to the negligence on the part of complainant himself the mobile handset was physically damaged. Therefore, the claim under physical damage as per the policy terms and conditions is not applicable. Hence, the complainant is liable to be dismissed as the complainant has not made out any grounds to claim the benefits under the policy. As such for the above said reasons, we answer the above points accordingly and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is hereby dismissed. No order as to costs.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by him, transcript corrected by me and then pronounced in Open Court on this the 7th day of December 2016).
(RAVISHANKAR)
President
(B.U.GEETHA) (H. MANJULA)
Member Member
ANNEXURES
Documents produced on behalf of the complainant:
Ex. P1 - Cash Invoice for having purchase of mobile handset from OP 2
Ex.P2 - Office copy of the legal notice
Ex.P3&4 - Two postal ack. Due
Ex.P5 - Reply issued by OP No.1 to the legal notice.
Documents produced on behalf of the OPs:
Ex. R1 - Copy of the policy issued in the name of Sangeetha
Mobiles Pvt. Ltd., Bangalore
Ex. R2 - Reply to the legal notice issued by OP
Ex. R3 - Un-served postal cover
Ex. R3(a) - Cover opened and original reply notice
Ex. P4 - Authorization letter
Dated:07.12.2016 President
District Consumer Forum,
Chikmagalur.
Tss
