Date of filing :      24.11.2015

                                                                                      Date of transfer  : 27.06.2022

                                                                                       Date of order   :   19 .10.2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE

PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L.     PRESIDENT

                THIRU. R. ASGHAR KHAN, B.Sc., B.L.                    MEMBER – I

        SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A.,     MEMBER-II

WEDNESDAY THE 19TH  DAY OF OCTOBER 2022

CONSUMER COMPLAINANT NO. 63/2022

M. Ganesh Babu,

Son of Murali,

No. D-60, G.S Apartments,

1st Floor, DTP Colony,

Pattravakkam, 

Ambattur  (Near Patravakkam Railway Gate), 

Chennai – 600 053.                                                                       …Complainant

    -Vs-

The Oriental Insurance Company Limited,

Rep. its Senior Divisional Manager,

Divisional Office at No.2,4th Floor,

UIL Building, No.8, Esplanade,

Chennai-600 108.                                                                          …Opposite party

Counsel for complainants    :  Thiru.  C. Karthick

Counsel for opposite  party :  M/s. N. Maheswaraiah 

ORDER

THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L. PRESIDENT

    This complaint has been filed Under Section 12 of Consumer Protection Act 1986.  The complainant has prayed this Hon’ble Commission to direct opposite party to pay a sum of Rs.1,00,000/- along with the interest of 18% p.a. from the date of filing of this complaint till the date of realization and to pay cost incurred.  

1.The case of the complaint is briefly as follows:

    The complainant had purchased a mobile at Universal Show room, model name Samsung S 7562 (Galaxy S Duos) bearing IMEI No.354905053580835 on 26.02.2013 and the day itself he took theft insurance from the opposite party. From the date of purchase he was using /handling the said phone without any problem.  On 24.01.2014 around 9.A.M he went to tea shop at Royapettah (near ADMK Office).  After he had a tea the complainant left from the tea shop.  The complainant, near Gopalapuram noticed that the said mobile was not in his pocket and realized that the mobile was missing.  Immediately, the complainant returned to tea shop and a complete search was made and then only he realized that the said phone was stolen by some third party.   Immediately, he made phone call to that number and the same was ringing but it was not picked.  Again, he tried unfortunately the said mobile was switched off.  Thereafter, he had confirmed that the mobile was stolen.  Subsequently, he contacted the service provider and deactivated the mobile number from his office on 25.01.2014. Further he had rushed to Royapettah police station and informed about the theft of the mobile.  The station officer advices him to bring original invoice, since original were not in his hand.  Thereafter, he left from the police station and again the complainant went to police station on 27.01.2014 with required documents and lodged the police complaint with E-2 Roypettah police station.  After long search the police was unable to find out the mobile and having waited for one month they gave an insurance claim form on 20.02.2014 along with requisition letter and relevant documents.  Having received the claim form with opposite party and requisition letter, he received a reply from opposite party that the police complaint should have been lodged within 48 hours.  But our client denies the aforesaid allegation as he had intimated the police station about the theft his mobile immediately. He had taken insurance and his mobile was stolen and lodged police complaint and the police also gave non-tracing certificate.  Even though, he was entitled for insurance the opposite party evaded to consider his claim.  This clearly shows the negligence and deficiency in service on the part of the opposite party.  The opposite party is the Insurance company and doing the same for the benefit of public and as a insurance company you cannot issue the same without verifying the records and with a ulterior motive to reject the genuine claim.  Due to the said reply and also service deficiency, the complainant had serious mental agony and non-application of mind in his work for the past several months and he is a legal practitioner and he is unable to get  his genuine claim.  The opposite party had issued reply notice without valid reason and the same was a clear deficiency.    Hence, this complaint.   

2. The written version of opposite party is as follows:

    This opposite party issued a policy of individual and Group Mobile Insurance to M/s. Universal Telecommunications India Pvt. Ltd., for covering the new mobile being sold by them.   The said policy was issued by this opposite party subject to the terms and conditions of the policy.  It is also true that the complainant purchased a new Samsung mobile from M/s. Universal Telecommunications on 26.02.2013 for Rs.13,640/-.  The complainant’s mobile was covered under the insurance policy issued by the opposite party vide policy No. 41200/48/2015/5901, for sum of Rs.13,000/-.  The policy period is from 26.02.2013 to 25.02.2014.  It is pertinent to mention that the rights and liabilities of the contracting parties are governed by and subject to the terms and conditions of the said policy which binds the parties.  The complainant submitted a claim to the Alegion Insurance Broking Pvt. Ltd., for the theft of his mobile on 21.02.2014 along with documents alleging that the mobile was lost on 20.01.2014 at Royapettah, Chennai near AIADMK office when he was taken tea at tea shop.  The claim form was forwarded to the opposite party by the insurance broker.  After receipt of the claim from the complainant, the opposite party after  due application of mind and as per the terms and conditions of the policy sent a letter date 09.06.2014 to the complainant requesting him to produce the Duly acknowledged complaint copy with mobile details, date, time nature, cause and circumstances of the incident and to explain why there was a delay in filing complaint.  As per the terms and conditions of the policy the complaint should be lodged before the concerned police station immediately or within 48 hours of loss.  Further it is also requested that to clarify that as per the SIM deactivation acknowledgement belongs to other party name, relationship clarification letter with proof to be produced and also clarify why the claim documents were submitted to the opposite party after four months of the incident.  The complainant after receipt of the said letter failed to clarify the queries raised by the opposite party.   But the complainant has filed the complaint before the concerned police authorities only on 27.01.2014, though the mobile was alleged to have been lost on 24.01.2014 i.e. after 4 days from the alleged incident.  Hence on this condition alone the complainant is not entitled to any claim under this policy.   Further, it is pertinent to mention that the complainant has taken contradictory stands as regards the incident.  In the claim form, it is mentioned that the mobile phone was pick pocketed.  Whereas, in the police complaint, it is mentioned that the cell was missing and lost.  This amounts to clear mis-representation on part of the complainant, which is a breach of the contract of insurance. The complainant has committed a breach of the basic principle good faith, and hence the complainant is not entitled to derive any benefits under the policy.  On this ground alone, the complaint is liable to be dismissed inlimine.  

3.    Proof affidavit of complainant filed, Ex.A1 to Ex.A6 were marked.  Proof affidavit of opposite party filed. Documents not filed. Written argument of complainant side not  filed.   Written argument of opposite party filed.  Oral argument of opposite party side heard.        

4.The points that of arises for consideration are:

    1. Whether there is any deficiency in service on the part of the opposite      

               party?

    2. Whether the complainant is entitled for relief as claimed in the complaint?

3. To what relief complainant is entitled to?

5. Point Nos. 1&2:           The complainant purchased the Samsung S 7562 (Galaxy S Duos) bearing IMEI No.354905053580835 on 26.02.2013 at Universal Show room   On 24.01.2014 around 9.A.M he went to tea shop at Royapettah (near AIADMK Office).  After he had a tea he left from the tea shop and on reaching near Gopalapuram he noticed that the said mobile was not in his pocket and immediately he  rushed  back to tea shop and made search,  but he could find his mobile, then realized that the said phone was stolen by somebody else.  Immediately he went to the Royapettah police station and informed about the theft of his mobile.   But the officer in charge of the police station asked the original invoice of the phone. Therefore, again the complainant went to police station on 27.01.2014 with required documents and lodged the police complaint with E-2 Roypettah police station.  After long search the police were unable to find out the mobile and having waited for one month, the complainant gave an insurance claim form on 20.02.2014 along with require documents.  After receiving the claim form from the complainant, the opposite party by their letter dated 09.06.2014 repudiated the claim of the complainant on the ground that the complainant should have lodged the complaint within 48 hours from the date of his stolen mobile.  The allegation of the complainant is that at the time of the purchasing the aforesaid mobile, he took the insurance policy and in the event of any loss or theft, the opposite party should have compensated the complaint.  Therefore, the opposite party cannot repudiate the claim of the complainant for delay in lodging the complaint.  Further, he says that the act of the opposite party would clearly shows that negligent and deficiency in service on the part of the opposite party.   Hence, this complaint.   The opposite party stating that the said mobile have insurance policy and further stating that the said policy was in force for the period of 26.02.2013 to 25.02.2014 subject to terms and conditions of the said policy which binds the both parties according to them.  The above said policy covers Fire loss, Riot, Strike, Terrorist activity, theft by unknown person loss or total damage arising out of road accident only. The complainant submitted a claim to the Alegion Insurance Broking Pvt. Ltd., for theft of his mobile on 21.02.2014 along with documents alleging that the mobile was lost on 20.01.2014 at Royapettah, Chennai near AIADMK office when he was taken tea at tea shop. After receipt of the claim from the complainant, the opposite party after  due application of mind and as per the terms and conditions of the policy, sent a letter date 09.06.2014 to the complainant requesting him to produce the duly acknowledged complaint copy with mobile details, date, time nature, cause and circumstances of the incident etc., and also ask why there was delay in filing the complaint.  As per the terms and conditions of the policy the complaint should be lodged before the concern police station immediately or within 48 hours of the loss.  But the complainant has filed the complaint before the concerned police authorities only on 27.01.2014, though the mobile was alleged to have been lost on 24.01.2014 i.e. after 4 days from the alleged incident.  Hence on this ground alone the complainant is not entitled to any claim under this policy.  In our consider opinion that the only defense raised by the opposite party there was a delay in lodging the police complaint.  That too is not inordinate delay only 4 days there was explained by the complainant properly.  It is undisputed facts that the complainant lost his mobile that was covered under the policy. Therefore, the opposite party cannot repudiate the claim, that was a delay in lodging the complaint. In fact, the complainant had approached the police and very same day, but the police authority asked to furnish the details of phone therefore he must have gone to his house for production of the documents. Therefore, the delay is not fatal to the claim of the complainant as contemplated by the opposite party accordingly.  The repudiation of the claim of the complainant by the opposite party was not sustained.  Accordingly, we found that there is a deficiency in service on the part of the opposite party. Hence, these Point Nos. 1 and 2 are decided in favour of the complainant. 

6. POINT NO.3:      As we have decided in Point Nos. 1 and 2 that there is a deficiency in service on the part of the opposite party.  The opposite party is hereby directed to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) towards cost to the complainant.  Hence, this Point No. 3 is also answered accordingly. 

7.    In the result, this complaint is partly allowed.  The opposite party is hereby directed to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) towards cost to the complainant, within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till the date of realization.  

Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 19th October 2022. 

      Sd/-                        Sd/-                      Sd/-

MEMBER-I                                          MEMBER – II                                PRESIDENT 

LIST OF COMPLAINANT SIDE DOCUMENTS:

Ex.A1-21.02.2014 –  Copy of letter sent to Alegion Insurance Broking Pvt. Ltd.,

Ex.A2-09.06.2014 –  Copy of Correspondence letter sent by the Oriental Insurance 

                                  Company Ltd.

Ex.A3-24.11.2014 -  Copy of notice sent to Oriental Insurance Company Ltd

Ex.A4                    -  Copy of Oriental Insurance company ltd sent to notice to the 

                                 complainant counsel

Ex.A5-22.12.2014 -  Complainant sent to Oriental Insurance Company Ltd

Ex.A6                    -  Copy of mobile theft Insurance policy

LIST OF OPPOSITE PARTY SIDE DOCUMENTS:                                     -NIL-

    Sd/-                     Sd/-                      Sd/-

MEMBER-I                                          MEMBER – II                                PRESIDENT