Delhi

North

CC/210/2016

DALIP RASTOGI - Complainant(s)

Versus

M/S. GURU KRIPA ENTERPRISES AND Ors. - Opp.Party(s)

13 Jun 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

CC No.: 210/2016

 

Dalip Rastogi

S/o Late Sh. J.N. Rastogi

X-14, Civil Wing,

Tis Hazari Courts,

New Delhi-110054            .                                                           …                     Complainant

 

                                                          Vs

 

M/s Guru Kripa Enterprises,

F-14/16, Model Town-II

New Delhi-110009

Through its proprietor                                                                 …            Opposite Party No.1

 

The New India Assurance Co. Ltd.,

12/1, Jeevan Raksha Building,

Asaf Ali Road, New Delhi.                                                             …            Opposite Party No.2

                 

UB Insurance Associates,

T-305, #216/13, 4^th Floor,

Suraj Tower, 27^th Cross,

3^rd, Jayanagar, Bangalore 560011

Through its M.D./ Directors/ Manager                                       …            Opposite Party No.3

 

 

ORDER/

13/06/2023

 

Ashwani Kumar Mehta, Member:

 

(1)      The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that the Complainant purchased a new Samsung Mobile (Model No. A-7), having IMEI No. 359926061123875, worth Rs.24,500/- (Twenty Four Thousand Five Hundred Only) vide Invoice No.S15/1265 on 30.08.2015 from OP-1. While selling the mobile, the OP-1 also sold one app/software namely “AppsDaily mobile protection” against payment of Rs.2,000/-. The “AppsDaily mobile protection” protect the mobile device from all threats i.e. Handset with all risk insurance (theft, burglary, physical damage including fluid damage), Antivirus, Back-up, Anti-Theft etc. The pictures of outer cover/box of the AppsDaily mobile protection is Ex.CW-1/2.

2.       The said mobile phone was stolen on 11.04.2016 at about 12:30 hrs between Mori Gate Round About and Mori Gate Red light. Online police complaint and FIR bearing no. KG.000095 dated 11.04.2016 u/s 379 IPC -P.S. e-police station was lodged by the Complainant. Thereafter, an Intimation of theft was given to OP-2 vide intimation number AD_T_110416_3028834 online in the evening of 11.04.2016. Besides, as per the requirements of the OPs for filing the claim, a copy of Form A/covering letter was generated through online by the complainant and the claim was submitted alongwith all the original documents were submitted to OP-2 on 25.04.2016 through Speed Post but the OP-2 repudiated the claim being not-admissible. Thereafter, the Complainant tried many times to speak to the OP-2 over telephone but all the calls were un-responded and thereafter complainant approached the OP-1 and showed him the non-admissible claim status given by the insurance company. OP-1 assured that due to some technical reasons, the claim might have been held not admissible by the insurance company and he will surely get the claim approved. The Complainant kept on visiting the OP-1 and also tried to talk on phone with the OP-3 but no avail. The complainant has alleged that the OP-2 has illegally rejected the claim of the Complainant being not admissible without assigning any reasons thereto. Therefore, the instant complaint has been filed praying for directions to the OPs to:-

 

(a)      Approve the claim of theft of the mobile phone of the complainant   lodged vide intimation numbered AD_T_110416_3028834;

(b)     Pay Rs.50,000/- alongwith interest @ 12% per annum as compensation for causing mental pain, agony and harassment to the Complainant in addition to shedding expenses in visiting the OPs repeatedly;

                        (c)       pay Rs.11,000/- towards cost of litigation.

 

3.       Accordingly, notices were issued to the OPs and in response to the Notice issued, the OP-2 has filed reply to the complaint but the OPs-1 & 3  chose not to appear/respond despite service and  have been proceeded Ex-parte. Therefore, the allegations made by the Complainant against OPs – 1 & 3 have remained un-rebutted. However, the OP-2 in the  reply filed, has stated that the Complainant has not come with clean hands before this Commission because as per the terms and conditions of the policy, the Complainant is not entitled to get any relief and the present complaint is not maintainable and liable to be dismissed. It is admitted by OP-2 that the Complainant got insured his mobile through “AppsDaily mobile protection” under master policy no.67030246132400000008 subject to the terms & conditions of the policy and on receipt of the claim of loss of above said mobile, it was scrutinized and found that the claim of complainant is not tenable due to the following provisions the terms & conditions of the policy:-

 

“Loss of mobile handset due to theft from vehicle unless the doors/windows and other opening are securely locked and properly fastened.”

“Caused by incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect set-up and neglect.”

         

4.       The OP-2 has also contended that contents of FIR filed by the complainant reveals that mobile was taken out from the car window. In view of the above, the claim was rightly repudiated and duly informed to the complainant. In this regard, the complainant, while filing evidence, has submitted that this reason given by OP-2 is for the sake of reason inasmuch as admittedly the mobile phone was insured against theft and as per the definition of theft as defined under Section 378 I.P.C., the theft means “intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking is said to commit theft.”

 

5.       Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OP and it has been observed that:-

1. It is not disputed that the Complainant got his mobile phone insured from the OP-2 subject to certain terms & conditions which are sacrosanct for examination of the complaint.
2. It is mentioned in the FIR of theft of said mobile phone that “mobile was taken out from the window of Complainant’s car” which is in contravention of the terms & conditions of the policy issued by the OP-2.
3. The complainant has submitted the definition of theft as defined under Section 378 I.P.C. explaining that the theft means “intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking is said to commit theft” but this definition of theft can not override the terms & conditions of the policy issued by the OP-2.

 

In view of the above observations, we are of the considered view that the claim has rightly been repudiated by OP-2 and there is no  deficiency in service on the part of O.Ps. Therefore, the complaint is dismissed

Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

 

                                        ASHWANI KUMAR MEHTA                                                     DIVYA JYOTI JAIPURIAR                            Member                                                                                      President

      DCDRC-1 (North)                                                                DCDRC-1 (North)