ORDER

01.07.2024

Sh. Sanjay Kumar, President

1. The factual matrix of the present case is that on 09.02.2016 complainant purchased an Apple I Phone 64 GB Gold Color from OP1 for Rs.51,000/- having IMEI no. 35092073668429 and complainant was advised by agent/officer of OP2 for availing insurance, therefore, complainant vide policy no.87286860 and coupon code no.62577741 dated 09.01.2016 availed the insurance of OP2.
2. It is stated that on 01.02.2016 at around 10.30pm the complainant was coming from his office and also talking through the said I phone having Airtel connection and mobile no.9910290400 to his friend Gaurav Jain then suddenly one bike rider stopped by slowing down the bike and quickly  snatched the I Phone. It is stated that due to lack of visibility during night complainant was unable to read the bike no and this incident took place at outside street no.3 Ansari Road, Daryaganj while complainant was walking towards street no.2.
3. It is stated that on 01.02.2016 around 11.30 PM the complainant lodged a complaint with police station Daryaganj and FIR no. 0058 of 2016 under section 356 r/w section 379/34 IPC was registered. It is further stated that on 02.02.2016 complainant moved an application to Airtel for reissue of sim card which was stolen with I phone and on the same day new sim card bearing no.8991000900805522037U was reissued to complainant and confirmed on 03.02.2016 vide email from Airtel. It is stated that on 16.02.2016 complainant applied online as per procedure of OP2 for the claim of stolen/lost mobile handset at website www.sykagadgetsecure.com and upon verification confirmation of insurance policy CIR no. was generated and as per requirement of OP2 documents submitted and subsequently claim no. CIR 1602028370 generated.
4. It is stated that surprisingly arbitrary act on the part of OP2 and OP1 that they forcibly reduced the insurance amount suo moto as per their conveyance and mandate the mandatory provision that without submitting a reduced under value claim they will not accept the claim of complainant and there is format prescribed wherein it has been disclosed that complainant cannot claim more than 38,250/- pertaining to I phone mobile despite it was brand new and unused but the complainant was compelled to give the consent for seeking claim limited to extent of Rs.38,250/- and there is no procedure disclosed by OPs wherein the complainant had lodged his resistance for the same.
5. It is stated that under compelling circumstances to have limited access towards the claim complainant forcibly submitted the claim to the extent of Rs.38,250/- as per direction of OP2 and it is clear case that OP1 and 2 are cheated the customer in a planned manner by misleading them. It is further stated that it is very surprising to note that OP2 has a customer care number 180030027090 duly registered  in Delhi but as concealded from the customers. It is stated that this act of OP2 is clear case of arbitrariness with the intention to harass and cheat the customer and even the process of submission of claim is so difficult and marathon task for customer.
6. It is stated that on 16.02.2016 the complainant submitted his claim form alongwith affidavit  as per their forcible format thereby agreeing for a claim of Rs.38,250/- and other documents as required by OP2. It is stated that to the shock of complainant OP2 cite one or other discrepancies in the documents and complainant was exhaust with the indignant, callous attitude and deficiency of service on the part of OP2 in accepting the claim and giving to complainant.
7. The complainant is seeking direction against OP2 to accept the claim of Rs.51,000/- with compensation of Rs.50,000/- for mental agony, stress and damage and loss of faith and also pay cost of Rs.50,000/-.
8. As per record OP1 served, however, failed to appear and also not filed WS. As per order dated 04.05.2017 proceeded ex parte.
9. WS filed on behalf of OP2 and taken preliminary objections that present complaint is not maintainable and rest upon falsehood, conjectures and untruthness. It is stated that the claim of the complainant is pending as proper  documents are not provided by the complainant. There are missing documents such as scanned copy of original bill, insurance  claim form filled and signed by complainant, registered email id is not provided on claim form, police complaint form does not mention place of loss of claim form, sim lost report with stamp and sign of service provider. It is further stated that present complaint is an abuse of process of Hon’ble Forum, therefore, liable to be dismissed.
10. It is stated that complainant’s relief is contrary to the terms of the deed of indemnity, subrogation dated 16.02.2016. It is stated that the claim is based on a bogus story of snatching of mobile phone. It is stated that OP2 never engaged in any deficiency of service, therefore, complaint is liable to be dismissed. It is stated that the claim of the complainant has not been rejected till date, therefore, no cause of action for filing of the present complaint. It is further stated that OP is only a service provider and the insurances provided by M/s The New India Assurances Co. Ltd. and in such case the claim if any must be  lodged against the insurance company. It is stated that complaint is liable to be dismissed.
11. On merit all the allegations are denied and contents of preliminary objections are reiterated. It is stated that complainant is not entitled to any relief.
12. As per record complainant has not filed rejoinder.
13. Complainant filed evidence by way of his affidavit and reiterated contents of complaint. Complainant relied on copy of homepage of website of OP2 Ex.CW1/1, copy of retail invoice of mobile phone Ex.CW1/2, copy of FIR Ex.CW1/3, copy of acknowledgment dated 02.02.2016 and confirmation email dated 03.02.2016 Ex.CW1/4, copy of claim form affidavit and other documents submitted online to OP2 Ex.CW1/5, copy of emails exchanged with OP2 Ex.CW1/6 and affidavit under section 65B of Indian Evidence Act Ex.CW1/7.
14. OP2 filed evidence by way of affidavit of Sh. Parmod Lakade. In the affidavit contents of WS reiterated. OP2 relied on copy of Board Resolution Ex.OP2/1 and copy of claim filed by complainant to insurance company Ex.OP2/2.
15. Written arguments filed by complainant.
16. We have heard Ms. Anuj Yadav counsel for complainant and Sh. Ashok Kumar Shukla counsel for OP2.
17. It is admitted case of the parties that complainant purchased Apple I Phone 64 gb gold colour from OP1 on 09.01.2016 for Rs.51,000/-. The complainant also availed insurance on the same day vide policy no.87286860 from OP2. According to complainant on 01.02.2016 in the night around 10.30 pm the Apple phone was snatched by one unknown bike rider at outside street no.3 Ansari Road, Darya Ganj, New Delhi. The complainant lodged FIR bearing no.58/2016 under section 356 r/w section 379/34. The complainant also filed application to airtel on 02.02.2016 informed the incident and got issued new SIM card. The complainant applied as per procedure online on 16.02.2016 a claim for stolen Apple mobile phone. The OP2 as per allegations reduced to claim amount to Rs.38,250/-. The complainant alleged that all the process was online and very difficult and marathon task for lodging of complaint. Complainant also alleged that OP2 forcefully taken an affidavit for agreeing the claim amount of Rs.38,250/-.
18. The OP2 admitted the fact that complainant had lodged a claim with regard to stolen Apple I phone. As per OP2 the complainant executed deed of indemnity subrogation dated 16.02.2016. According to OP it is a service provider and the insurance was provided by M/s The New India Assurance Co. Ltd.  The counsel for OP filed judgment of Sachin Sunil Koranne Vs. M/s Leehan Retail Pvt. Ltd. & Ors. RP No.157/2008 (NC). We have gone through the deed of indemnity and subrogation dated 16.02.2016. In this deed the name of  insurance  company is not mentioned, however complainant accepted the full and final  settlement claim of Rs.38,250/-.
19. As per brochure filed by OP2 it is a company M/s Leehan Retails Pvt. Ltd. who invented a gadget named Syska Gadget Secure and offer comprehensive solutions i.e insurance cover, antivirus and entertainment. It prescribed under hearing hassel free claim resolution. According to clauses mentioned therein if the theft claim is lodged within six months of registration than the depreciation is 25% of the invoice value. It further provides the detailed process of lodging the claim and requirement of documents. However the brochure does not provide that insurance company is M/s The New India Assurance Co. Ltd. with which any  customer taken the services of Syska Gadget Secure in reality having contract not with M/s Leehan Retail Pvt. Ltd. but with insurance company. The brochure has not defined this vital information with regard to the name of the insurance company. This is clear cut example of unfair trade practice by the OP2. Every customer remain in the impression that it is the Syska Gadget Secure or Leehan Retail Pvt. Ltd. is the responsible company for insurance claim. The complainant relied on judgment of M/s Sonell Clocks and Gift Ltd. Vs The New India Assurance Co. Ltd. Civil Appeal No.1217-1218 of 2017 decided on 21.08.2018 (Supreme Court) and M/s Industrial Promotion and Investment Corporation of Orissa Ltd. Vs. The New India Assurance Co. Ltd. & Anr. We have gone through both the judgments. Both the judgments are distinguishable in the  present facts and circumstances of the case. The case of M/s Sonell Clocks and Gift Ltd. (Supra) involves the interpretation of Standard Fire and Perils Policy and M/s Industrial Promotion and Investment Corporation of Orissa Ltd. (Supra) is in regard to  burglary and house breaking policy.
20. On the basis of above observation and discussion we do not held guilty of deficiency of service against OP2 as the brochure of Syska Gadget Secure clearly mention depreciation of 25% of invoice value which comes out to be Rs.38,250/- and agreed by the complainant as full and final settlement amount. However it is not admitted or denied by the complainant whether this amount has been received or not. In  case OP2 failed to pay the  Rs.38,250/- than directed to pay within one month from  the receipt of this order. The complainant established the unfair trade practice on the part of OP2 which is corroborated by the brochure filed on record by OP2 which failed to define and informed the customers that insurance agreement is not with M/s Leehan Retail Pvt. Ltd. or with Syska Gadget Secure but with some other insurance company like M/s The New India Assurance Co. Ltd. In these  special circumstances we impose cost of Rs.25,000/- upon OP2 which shall be paid within one month from the date of receipt  of this order. In case of default OP2 is directed to pay interest @ 9% per annum till realization. The complainant  is disposed off accordingly. File be consigned to  record  room.
21. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  01.07.2024.

    SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER