DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 345/2015

No. DC/ Central/

vs.

Coram:       Ms. Rekha Rani, President

                    Shri Vyas Muni Rai, Member

                   Ms. Shahina, Member (Female)

ORDER

Shri Vyas Muni Rai, Member

1. Sh. Rajiv Arora (in short the complainant) has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 against The New India Assurance Company Ltd. (in short OP1) and AppsDaily Solutions Private Ltd. (in short OP2). The grievance of the complainant in brief is that he had purchased an Apple I phone 6 Plus 64GB having IMEI No. 354380060647862 (hereinafter reffered to as Phone/Mobile Handset) from Range Teleservices, New Delhi on 18.10.2014 for Rs. 71,500/-. Thereafter, the complainant got insured the said Mobile Handset from the OP1 vide policy no. 670302/46/13/24/00000008 through OP2 which acts as the “Third Party Agent”, by paying an amount of Rs. 1749/- as premium. 
2. It is further the case of the complainant that the said Mobile Handset was replaced another Mobile Handset by Apple due to defect on 13.01.2015 with new IMEI No.-354379062164942. Copy of delivery report dated 13.01.2015 of new Mobile handset is on record. Complainant on 29.03.2015 went to Okhla Subzi Mandi at 05:30PM, where the said Mobile Handset was stolen away. Immediately thereafter, the complainant lodged an FIR on 30.03.2015 of said stolen Mobile Handset with police station. Copy of FIR dated 30.03.2015 is on record. Complainant on the very same day also tried to register the claim through the OP2 on their internet site with new IMEI number but failed to do the same. Further the complainant called the OP2 on toll free number and intimated the OP2 about theft of his said mobile handset.
3. Thereafter, the complainant came in contact with Mr. Satya, employee of OP2 on 02.04.2015, Delhi Office for registering the claim but after much pursuation the said employee asked the complainant to send all relevant documents in respect to the claim by mail and complainant did so promptly. Complainant has also submitted on record the copy of e-mails exchanged between the parties and other documents. But Mr. Satya on one or the other excuse failed to pursue the mail and again asked the complainant to mail those documents again and assured to discuss the issue/claim with his senior Mr. Ramji Maurya. Further, the complainant, Mr. Satya and Mr. Ramji Maurya discussed on a conference call and they further expressed their inability to register the claim. However, Mr. Ramji Maurya, the employee of OP2 also assured that full claim will be allowed/passed to the complainant and he will get back to complainant after further discussing the matter with his senior at Mumbai. On being asked by the aforesaid employees, the complainant again on 25.05.2015 registered his claim and the documents to this effect has also been placed on record.
4. Thereafter, complainant got a surprised call from the call center of OP2 on 13.08.2015 informing him that the claim amount will only be for Rs. 24,000/- approximately as the claim was registered after two months. However, it is the case of complainant that he had already intimated about the loss of the cell phone under reference to Mr. Satya, employee of OP2 immediately after the registration of FIR i.e. very next day of the theft. To record the further development, complainant received the mail dated 22.08.2015 from OP2 that the Insurance Company has processed the claim under non-standard basis as ‘NO-STD’ at the 50% basis as there was delay of 81days in SIM blocking and delay in intimating to the company for 57 days. Copy of mail to this effect is also on record. Complainant also received mail dated 29.09.2015 from OP1 about the aforesaid delay in intimating the claim as per the policy’s terms and conditions. 
5. To proceed further, when the grievance of the complainant was not addressed, he has filed the instant complaint highlighting the deficiency in service on the part of the OPs along with following prayer:-

1. To direct the Respondents jointly and severally to pay the full claim for the theft of the mobile handset as per insurance policy in favour of complainant; and
2. To award a sum of Rs. 25,000/- towards the mental agony suffered by the complainant;
3. To award the costs of the present complaint in favour of the complainant and against the Respondents; and/or
4. To pass any further or other order(s) or directions in favour of the complainant as this Hon’ble Forum may deem just fit and proper in view of the facts of the case and in the interest of justice and equity.

6.   Perusal of the record shows that OP2 has been proceeded ex-parte on 25.04.2016. Now, we come to the stand taken by OP1 in its reply. The purchase of the mobile handset under reference having the valid policy has not been denied by the OP1. OP1 has further taken the stand in its reply that “it is pertinent to mention here that the complainant did not inform to either of the respondents that his insured handset vide IMEI No. 3543800060647862 got changed and instead of this handset he got the new hand set from the company with the changed IMEI No. as the policy was issued to the handset whose IMEI No. was 3543800060647862 and the handset which was stolen was of other IMEI No. and that was 354379062164942.” OP has further taken the stand that complainant informed OP1 on 09.04.2015 while date of loss of mobile handset was 29.03.2015 and as per the terms and conditions of the policy, it should have been intimated to the insurance companies within 48 hrs to 96 hrs. OP1 has further mentioned in its reply about the depreciation value in case of theft if it is reported within brake up days mentioned in the reply.
7. To travel further, in his rejoinder submitted on record the complainant has taken the objection that the WS filed by OP1 after 64 days of the receipt of the copy of the complainant and the same cannot be admitted being barred by limitation. Complainant in his rejoinder has denied the allegations of OP1 being wrong and incorrect about not informing to the OPs in time. He has further stated that he duly informed/ intimated to the OPs regarding change of mobile handset due to detection of defect. He has further stated in his rejoinder that OP specifically admitted that the complainant’s claim in prevailing circumstances, 25% of the depreciation will be deducted from the purchase value as per the terms and conditions of the insurance policy in case of theft but they failed to do so. The stand of the OP1 that the complainant informed on 09.04.2015 about the date of loss being 29.03.2015 has been vehemently refuted stating therein that the incident of theft was informed to OP2 who acts as ‘third party agent’ on its internet site on 30.03.2015- very next day of the theft.
8. Not only this, as per the stand of the complainant, he also informed on telephone to the employees of OP2 named above about the incident. So far as the blocking of SIM is concerned by the complainant it was done so within 48 hrs of the occurrence of the incident and within time specified in the policy followed by email dated 30.03.2015 to the service provider for replacement of SIM, which, as per the stand of the complainant went unnoticed by the OP.

9. We have also gone to WAs submitted on record by the parties, wherein, we do not find any new material facts except the repeatation of the stands taken by them in complaint/Rejoinder/ Written Reply. We have also seen the mail exchanged between the parties and the other relevant documents available on record.
10. We have carefully examined the documents submitted on record by the parties and have given thoughtful considerations to the stands taken by them. The documents/ mails exchanged between the parties which are available on record leave no doubt in our mind about timely intimation of the theft of the mobile set to the OPs. Therefore, the cogent stand taken by the OP1 about non-intimation of the happening of theft timely does not stand on its scrutiny. Complainant duly informed about the theft of the handset on the very next day to OP2 who acts as ‘Third Party Agent’ of OP1. So, if OP2 was intimated timely, we do not find any delay on the part of the complainant in intimating to OPs. The stand of OP1 to process the claim on non-standard basis that works out to Rs. 24,930/- does not stand on the logical footing as has been mentioned in the repudiation letter dated 29.09.2015.
11. Apart, Section 13 of the Act empowers the District Forum when it is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, It shall issue an order to the OP directing him to do one or more of the following things, namely,

1. To remove the defect pointed out by the appropriate laboratory from the goods in question;
2. To replace the goods with new goods of similar description which shall be free from any defect;
3. To return to the complainant the price, or, as the case may be, the charges paid by the complainant;
4. To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
   12. To move further, in one of the case having Civil Appeal No. 4071 of 2022 titled Gurmel Singh vs Branch Manager, National Insurance Company Ltd., Hon. Supreme Court of India vide judgement of May 20^th, 2022 observed, inter alia, that “…. In many cases, it is found that the insurance companies are refusing the claim of flimsy grounds, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.” Therefore, declining the claim by Insurance Company on technical ground may be also taken as deficiency on its part.
   13. In view of the facts and circumstances discussed and deliberated above, we find deficiency of service writ large on the part of the OPs and order the OPs as under:-

1. To pay claim of the theft of the mobile handset as per the insurance policy jointly and severely to the complainant along with interest at the rate of 6% per annum simple interest from the date of filing the complaint till realization;
2. To pay to the complainant Rs. 5,000/- towards the mental agony and harassment suffered by the complainant;
3. No order to costs.
   14. OPs (jointly and severely ) are directed to pay the aforesaid amount within 30 days from the date of receipt of this order.
   15. Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced on this 29th  July of 2022.