Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.133/05.04.2016
Nitin Choudhary S/o Sh Mahinder Kumar Choudhary
R/o 5/41A, Moti Nagar, New Delhi-110115 ...Complainant
Versus
OP1. National Insurance Company through its
General Manager, 2E/9, Jhandewalan, New Delhi-110055
OP2. Mobile Store Limited, H.O.: Essar Techno Park,
Building "B', 1st Floor, Pyramid Infotech Park, Swan
Mill Compound, LBS Marg, Kurla (W), Mumbai-400 070
Store Office at: Shop no. 3/1/11, Gopinath Bazar,
Delhi Cantt, Delhi-110010 ...Opposite Party
Order Reserved on: 16.12.2022
Date of Order: 22.03.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Inder Jeet Singh
ORDER
1.1. (Introduction to case of parties) : The complainant bought I-phone from OP2 and also got it insured from OP1 through OP2, however, the I-phone was having repeated troubles, it was changed twice but again changed devise was also dmaged, for which it was got repaired for Rs.23,500/- and he was not reimbursed repairs charges by OP1 vis a vis OP2 had not advised him properly the course to be adopted on change of I-phone. There was deficiency of service as well as unfair practice on their parts. But, OP1 opposed the complaint that it is pre-mature and without any cause of action since complaint was filed without resort to first lodge the claim with OP1, complainant never approached to OP1. In case, complainant lodges the claim at this stage, after withdrawing this complaint, it will be entertained by OP1.
1.2: OP2 was served with complaint with notice, vakalatnama was also filed, however, it failed to file reply. Thence for want of appearance, it was proceeded ex-parte on 05.08.2016.
2.1 (case of complainant): Precisely, the complainant is a student and out of his savings and with the help of his parents, he could managed to buy Apple I-phone-6 16GB Gold from OP2/Mobile Store at
Gopinath Bazar, Delhi Cantt. New Delhi- 110010 against tax invoice/bill of 14.02.2015 and at the same time, on the advices of Store Executive of the OP2, he took insurance policy for I-phone of OP2. After about 2-3 months the I-phone started giving some problems. On 03.04.2015 complainant took it to the Service Centre of the Apple Company, at Esteem Technologies, 104, 2nd Floor, Westened Mall, Janakpuri, District Centre, New Delhi-110058, it was replaced with a new phone, being within warranty period as well as repairs of I-phone is not done per policy of Apple and previous phone was swapped. The complainant was given new phone set on 09.04.2015 besides first swap receipt. Immediately complainant contacted Sh. Lokesh Arora of OP2, who had sold the said I-phone and the insurance policy too. He was informed about swap of I-phone and inquired whether it needs to update the record of OP2 of such swap but he advised of no such need, as documents pertaining to swapping were being given him to be used, at the time of availing the claim from insurance company. After some time there was again some mike problem in the phone and it again taken to the service centre of the Apple Company, at Esteem Technologies, 104, 2nd Floor, Westened Mall, Janakpuri, District Centre, New Delhi-110058 on 25.08.2015 and the company again swapped the phone and provided a new device on 01.09.2015 along-with receipt of the second swap.
2.2 After a few days screen of phone was damaged, and complainant asked OP2's Executive/Sh. Lokesh Arora, whether or not its repairs would be covered under the insurance policy, however, under his instructions complainant took I-phone to the Service Centre of Apple Company, at Esteem Technologies, 104, 2nd Floor, Westened Mall, Janakpuri, District Centre, New Delhi-110058 on 25/09/2015, to get it repaired. It was repaired and handed over back on the same day but he was charged Rs.23,500/-. As per Executive of OP2, it was covered under the insurance policy and that the complainant could make claim thereof. Then complainant lodged claim of Rs. 23,500/- to OP1, and provided them with all records including the documents relating to the swapping of the phone by the company twice and the repair bills, however, his claim was rejected by the OP1 on the grounds that IMEI number of the phone did not match with the IMEI number in the policy, without appreciating the facts that the phone was under the warranty period, it was swapped by the Apple Company twice by removing the problem, for which the company had also issued swap receipts, which were furnished to OP1. The complainant also made his grievance to OP2, Customer Care via emails, complaining about the misguidance and the foul play upon by its Executive Sh. Lokesh Arora but to OP2 shirked off its entire responsibility, by denying of not contacting Sh. Lokesh Arora at any point of time or for seeking any advice/ guidance on the point in issue. Whereas, complainant is a student, having no source of income, he was misguided by the employee/Executive of OP2, he has been duped being student & layman, OPs are in connivance with each other and complainant has suffered huge loss of Rs. 23,500/- but OP refused to honor his claim insurance policy for vague reasons. That is why complaint for refund of repair charges of Rs.23,500/- with interest @18% pa, apart from compensation of Rs.50,000/- for harassment & mental agony and costs of Rs.15,000/-.
2.3 The complaint is accompanying with tax invoice (original), insurance policy (two original sets), service reports of 3/9.4.2015, delivery receipt 25.8.2015/01.9.2015; service report dated 15/9/2015, service report dated 25/9/2015, retail invoice of repairs charges of Rs.23,500/-, retail tax invoice no.716/25.9.2015 and e-mails record.
3.1 (Case of OP) : The complainant had purchased a mobile Apple -I phone-6 having IMEI no. 358367066741837 on 14.02.2015 and on that very day, he had also purchased insurance policy no. 260200/46/14/9500000078 of newly purchased I-phone against risk of theft and accidental damages. However, OP1 opposes the complaint that it is nothing but abuse process of law, since the complainant never approached OP1 for any claim nor filed any claim before it and failed to avail the efficacious and alternative remedy provided before filing the present complaint. The complainant has not mentioned even a single date, when he had approached OP1 or date on which he had filed the claim or date of rejection of claim. Thus the complaint is liable to be dismissed on this sole ground. There is no cause of action in his favour to file the complaint nor any legal
notice was served prior to filing the complaint. The OP1 also denies other allegations for want of knowledge about inter-action between the complainant & OP2 as well as complainant's visiting the service centre.
3.2. Since the complainant never contacted OP1 nor filed his claim before it thus question of rejecting the claim does not arise. However, in case the complainant, after withdrawing this present complaint, files the claim before the insurer company/OP1 his claim shall be considered as per terms and conditions of the policy taken by the complainant. Neither there is any deficiency in services nor unfair practice by OP1. But, the complainant is trying to misguide the Forum by giving false and fabricated averments, no claim under the Consumer Protection Act is made out against the answering OP1. Hence, the present complaint is liable to be dismissed.
3.3: The complainant opted not to file rejoinder to the reply of OP1.
4.1 (Evidence) : Complainant Nitin Choudhary had filed his detailed affidavit of evidence apart from relying upon all the documents furnished with complaint. He also filed affidavit u/s 65B of the Indian Evidence Act for proof of electronic record.
5.2: The OP1 was given repeated opportunities to lead evidence and then it was last opportunity for OP1's evidence on 23.01.2017, which was not availed, although further opportunity was requested but it was declined.
6.1 (Submission of Parties) : At the stage of final hearing, the complainant and the OP1 had filed their respective written arguments, the written submissions are on the lines of pleadings of the parties.
6.2: Both the parties were also given opportunity to make oral submission, but none of them availed it.
6.3: Thus, case of both the sides will be considered on the basis of material on record in the form of narration of complainant as well as documentary record, apart from written arguments of the parties.
7. (Findings) : The contention of both the sides are considered. Since, OP1 has raised few legal issues, it can be considered despite there is no evidence led by OP1 and they are being taken firstly.
8.1. The OP1 took objection that for want of legal notice prior to filing of the complainant, the complainant is not maintainable. However, no provisions of law is shown or mentioned either in the complaint or in the written argument that notice prior to filing of complaint is mandatory. This plea of OP1 cannot be accepted. Otherwise, the Consumer Protection Act, 2016 does not decipher any such legal requirement of notice. Hence, this objection of OP1 is without substance.
8.2. The other plea of OP1 is that complaint had approached and filed complaint before the Forum without first availing the efficacious and alternate remedy for claim to OP1. However, the complaint has filed emails record of correspondence of claim. As per record of emails from 16.09.2015 to 15.12.2015, the complainant had been writing and getting processed his claim through Mobile Store. The email of 21.09.2015 was of seeking further record by Mobile Store and other email of 05.10.2015 was that documents received had been forwarded to the National Insurance Co. Ltd. (i.e. OP1 herein). By email dated 09.11.2015 the complainant was informed that "as per Edelweiss, the claim was declined due to IMEI number changed & the same is not updated in their record". Thus, it is crystal clear that the complainant under consideration, after approaching Insurer/OP1 through its broker Edelweiss Insurance Brokers Limited. The complaint was filed properly and there was cause of action for filing the complaint.
8.3: Now, the other merits of case are assessed to ascertain, whether or not the complainant has proved his complaint?. For the following reasons, it is held that the complainant could not prove his complaint of either deficiency of services or unfair practices against any of the opposite parties:-
(i) In insurance contract, there is trinity of subjects (a) the Insurer (b) the Insured and (c) the subject matter of insurance, to be governed by terms and conditions of insurance contract,
(ii) the complainant took insurance policy no. 260200/46/14/9500000078 from OP1 through OP2 for mobile AP I-phone-6 16GB Gold having IMEI no. 358367066741837, against risks of accidental damage including fire, allied perils, theft etc. for period from 14.02.2015 to 13.02.2016 for sum insured of Rs.53,500/- (as per two sets of policies covering risks filed with details of Edelweiss Insurance Brokers Limited).
Thus, in this insurance contract, complainant is the Insured, OP1 is the Insurer and I-phone is the subject matter of insurance. The perils covered are for damages from incident of accidental damage including fire etc subject to limit of sum insured of Rs.53,500/-.
(iii) The complainant faced problem in the mobile hand-set and it was taken to service centre, the device was replaced as per service report dated 9.4.2015, this replaced I-phone was having IMEI/MEID no.356960063254697. Again there was problem, the device was changed again as per delivery report dated 1.9.2015 and issue was resolved,
(iv) Then I-phone display was physically damaged and it was again taken to service centre, this I-phone was having IMEI no.359309060828102 as per service reports dated 15.9.2015 and 25.9.2015. This I-phone was again changed under exchange on payment of Rs.23,500/- by complainant vide retail invoice no.716 dated 25.9.2015 and new I-phone is having IMEI no.352031073846783.
(v) On the eve of having new I-phone or device, the subject matter was changed and it was to be got incorporated in the insurance document to update the subject matter to be covered against peril insured. However, the complainant was having new I-phone set with new IMEI number but in the insurance contract the previous I-phone having IMEI no. 358367066741837 was continuing despite it was replaced with new I-phone hand set. The subject I-phone having IMEI no.359309060828102 taken for repairs on 15.09.2015 was never got endorsed in the insurance policy as subject matter to be covered against perils, nor even subsequent device having IMEI no.352031073846783, as per insurance policy contract on record.
(vi) Since the subject matter of insurance policy is I-phone having IMEI no. 358367066741837. The I-phone having IMEI no.359309060828102 was not the subject matter, which was got repaired or which was further replaced with latest I-phone having IMEI no.352031073846783, which not covered under the insurance policy; it was also informed to complainant by email dated 21.9.2015 and then email dated 9.11.2015 by Edelweiss through OP2.
(vii) it is I-phone having IMEI no.359309060828102 was damaged but is not subject matter of insurance cover. OP1 cannot be held liable to pay for subject matter not insured nor it can be construed deficiency of services,
(viii) the documentary record of e-mail does not depict an iota of fact that the complainant had asked OP2's Executive for endorsements of subsequent events happened of new I-phone handset in place of previous I-phone nor the complainant ever since requested OP1 to update the insurance cover for new I-phone to be covered against perils. As per emails, it is OP2, who was processing the claim of complainant to Edelweiss Insurance Brokers Limited, being broker of OP1. The OP2 cannot be held liable on any count for want of proof of deficiency in services or otherwise.
8.4 The complaint fails. It is dismissed. No order as to costs.
9.. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
10. It is appropriate to record that this Commission is facing great difficulty in day to day its functioning for want of regular PA and stenographer, since only one stenographer Gr-III is posted for all work.
11: Announced on this 22nd March, 2023 [चैत्र 1, साका 1945]
[Vyas Muni Rai] [Inder Jeet Singh]
Member President
