This CC is coming on before us for hearing, in the presence of               Sri. B. Kalyan Rao, Advocate for complainant; and of Sri. G. Sita Rama Rao, Advocate for opposite party No.3; opposite parties No.1 appeared in person; opposite party No. 2 called absent; Upon perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-

O R D E R

(Per Sri R. Kiran Kumar, Member)

This complaint is filed under section 12-A of the Consumer Protection Act, 1986. 

2.        The averments made in the complaint are that the complainant purchased a mobile phone of Samsung Made Galaxy A5 model from opposite party No.1 at Khammam for a cost of Rs.20,000/- vide invoice No.2265,         dt. 04-07-2015 and paid necessary premium charges and he got insured the mobile with opposite parties No.2 and 3.  Opposite party No.2 is the insurance provider and the opposite party No.3 is the insurer.  The complainant submitted that he lost his mobile phone on 23-08-2015 while he was travelling by a shared auto from Mehidipatnam to Shaikpet Nala at Hyderabad and inspite of several efforts made by the complainant, unfortunately he could not trace his mobile.  On 24-08-2015 complaint lodged a report with P.S. Golconda, Upon investigation police issued a certificate stating that mobile was not traced inspite of possible efforts.  The complainant further submitted that on 29-08-2015 he notified about missing of his mobile phone through Airtel cellular service provider and on 29-08-2015 he forwarded his theft declaration claim form to the opposite parties on 29-08-2015 along with all particulars.   The complainant submitted that, he addressed a letter dt. 30-11-2015 to the opposite parties, on 17-12-2015 he received a letter from the opposite party No.2 stating that claim of the complainant was repudiated, as service provider was informed on 29-08-2015 i.e. late by 6 days, in which, it is mentioned that, as per Section 6 clam procedure under theft category of policy conditions, service provider need to be informed within 48 hours.  The complainant further submitted that the contention of opposite party No.2 is not tenable and self serving.  And also submitted that the opposite parties failed to consider that, the complainant immediately lodged report with police on 24-08-2015 and processed the investigation has commenced within stipulated time of 48 hours and notifying to service provider, is in consequential.  The complainant further submitted that the opposite parties erroneously repudiated the claim of the complainant and pretending the delay to notify with service provider, motivated to await payment, as the opposite parties No.1 to 3 committed deficiency of service as such, the complainant filed this complaint for payment of cost of mobile of Rs.20,900/- and also for damages of Rs.10,000/-.    

3.      On behalf of the complainant the following documents were marked as Exhibits A-1 to A-6.

Ex.A-1:-Photocopy of Invoice No.2265 issued by opposite party No.1, dt. 04-07-2015 for an amount of Rs.20,900/-.

Ex.A-2:-Photocopy of Acknowledgment of Report with Mee-Seva about missing of mobile phone dt.24-08-2015.

Ex.A-3:-Photocopy of Certificate issued by Police, Golconda,             dt. 28-08-2015.

Ex.A-4:-Photocopy of receipt issued by Airtel Services, Khammam    dt. 29-08-2015.

Ex.A-5:-Photocopy of claim form forwarded by the complainant to opposite party No.2 and 3, dt. 29-08-2015.

Ex.A-6:-Photocopy of Repudiation letter dt.17-12-2015 issued by the opposite party No.2.

4.      On receipt of the notice, the opposite parties No.1 and 3 appeared through their counsel and filed their written version and counter.  Opposite party No.1 in their written version admitted the averments made in the complaint that, on 23-08-2015 the complainant while travelling in a shared auto at Hyderabad, he lost his mobile phone and made a complaint in concerned Police Station.  The opposite party No.1 submitted that the complainant has never approached them after that alleged incident and they had no information that the complainant consulted the opposite parties No.2 and 3 and claimed the insurance.  The opposite party No.1 further submitted that they are the dealers of various mobile phones but not a party to insurance, and they has no room to involve in that issue as it is not a party to insurance and hence the opposite party No.1 is not responsible for the repudiation of the claim of the complainant. The opposite party No.1 further submitted that the Forum has no jurisdiction to entertain the present complaint, as grievance raised by the complainant is against the insurance and hence the complainant had to approach the insurance ombudsman appointed for the purpose of resolving the disputes with insurance companies under the provisions of Insurance Act, hence the Forum has no jurisdiction to entertain the complaint and prayed to dismiss the complaint.   

          The opposite party No.3, in their counter they denied all the averments made by the complainant in his complaint.  The opposite party No.3 submitted that the insurance policy between the insurer and insured represents a contract between the parties, any violation of the insurance contract by the parties to the contract of the insurance, the contract becomes void and in such an event, the insurance company would not be liable to answer the claim of the other party.  The opposite party No.3 further submitted the complainant had given information on 23-08-2015 i.e. date of lost, but the Airtel Service provider was informed on 29-08-2015 i.e. on 7^th day after the loss, which is violation of policy, terms and conditions, from the date of loss occurred must be information given to the police authorities and service provider within 48 hours from the date of loss and the claim is not maintainable, hence the opposite party No.2 repudiated the claim.  The opposite party No.3 also submitted that the Forum is lacking in Jurisdiction to entertain the complaint, as several complicated questions of law and facts are involved, it is civil court, which can only adjudicate the same.  To support their contention they relied on the judgement of Hon’ble National Commission in M/s. Donroll Industries Ltd., and Anr Vs. National Insurance Company ltd., and Ors. In 2003 (3) ALT 40 (CPA).  The opposite party No.3 further submitted that the complainant not sent mandatory notice under section 12(1) of Consumer Protection Act and also not sent letter requesting to settle the claim, the complainant has no cause of action to file this complaint and no deficiency of service on their part, as such prayed to dismiss the complaint.

5.      Opposite party No.3 filed Certified true copy policy schedule for package insurance policy dt. 03-02-2015 which is marked as Exhibit B-1.

6.      Written arguments of complainant and opposite party No.1 and 3 filed.

7.      Upon perusing the material papers available on record, now the points that arose for consideration are,

1) Whether the complainant is entitled for the claim?

2) To what relief?

Point No. 1:-

In this case the complainant purchased Samsung Galaxy A5 model from opposite party No.1 by paying an amount of Rs.20,900/-                    on 04-07-2015 and also complainant paid towards insurance charges and got insured his mobile phone with opposite parties No.2 and 3.  According to the complainant, he lost his mobile phone on 23-08-2015 while he was travelling by a shared Auto from Mehdipatnam to Shaikpet Nala at Hyderabad.  Inspite of several efforts made by the complainant, unfortunately he could not trace out his mobile for that complainant lodged a report with Police Golconda and upon investigation Police have issued a certificate dt.28-08-2015 as mobile was not traced inspite of possible efforts.  According to the complainant he forwarded his declaration claim Form to the opposite parties on 29-08-2015 along with all necessary documents, but the opposite parties failed to settle his claim.  According to the complainant, he addressed a letter                    on 30-09-2015 to the opposite parties on that the claim of the complainant was repudiated by the opposite party No.2 on the ground that the complainant informed the Service Provider on 29-08-2015 i.e. late by 6 days, as per Section 6 claim procedure under theft category of policy conditions, Service Provider needs to be informed within 48 hours and the same was informed through Exhibit A-6.  As the opposite parties failed to settle the claim of the complainant the complainant approached the Forum for redressal.    

From the material available on record, we observed that the complainant purchased a new cell phone and was insured with opposite parties No.2 and 3.  And also as per the complaint, he lost his mobile               on 23-08-2015, immediately on 24-08-2015 the complainant lodged a report with Police, Golconda, upon which the police made investigation and issued a certificate dated 28-08-2015, stating that mobile was not traced inspite of possible efforts.  After receipt of certificate from the Police, complainant forwarded his theft declaration claim Form along with all necessary documents to the opposite parties on 29-08-2015.  As the opposite parties insured the mobile of the complainant, they have the bounded duty to settle the claim.  And also observed that the opposite party No.3 ought not to take objection on flimsy ground that the complainant failed to inform about the theft to the Service Provider within 48 hours and basing on that they repudiated the claim. The opposite party No.3 failed to file terms and conditions of policy to support their contention.  After receipt of claim form from the complainant also, the opposite parties failed to settle the claim.  In view of the aforesaid reasons the complainant proved his case that, immediately he gave a written complaint to the Police, P.S. Golconda when he lost his mobile and also taken all reasonable steps to trace out his mobile, after that he made claim to the opposite parties No.2 and 3 as such this point is answered accordingly in favour of the complainant.

Point No.2 :-

In the result, the complaint is allowed in part, directing the opposite parties No.2 and 3 to pay cost of the mobile phone Rs.20,900/- to the complainant and also directed to pay Rs.1,000/- towards costs and damages.  The amount shall be payable within one month from the date of this order, failing which the amount shall carry interest @9% per annum.  The complaint against opposite party No. 1 is dismissed.

Typed to dictation, corrected and pronounced by us in the open Forum, on this the 7^th day of September, 2017.

Member                   Member               President

                                                          District Consumer Forum,

Khammam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant:-                                                 For Opposite party:-   

       -None-                                                                       -None-

DOCUMENTS MARKED:-

For Complainant:-                                                           For Opposite party:-   

Member                    Member              President

                                                          District Consumer Forum,

 Khammam.