BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.300 of 2016

Date of Instt. 19.07.2016

Date of Decision: 02.08.2017

Joga Singh son of Surinder Singh R/o VPO Haridan, Near Mukandpur, Tehsil & District Nawanshahr.

..........Complainant Versus

1. Neeru Electronics, 1-4-13-18-19, Sanjay Gandhi Market, B.M.C. Chowk, Jalandhar, Contact No.9872444235.

2. New India Assurance Company Limited, Building 87, MG Road, Fort, Mumbai-400001, Maharastra.

….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President)

Sh.Parminder Sharma (Member)

Present: Sh. Gulshan Kumar, Authorized Representative of the Complainant.

OP No.1 exparte.

Sh. RK Sharma, Adv Counsel for OP No.2.

Order

Karnail Singh (President)

1. This complaint filed by complainant, wherein stated that on 26.01.2015, he alongwith his relative Gurvinder Singh went to the shop of OP No.1 and purchased a mobile phone Model D 2212/X-peria E3 for an amounting to Rs.11,000/-, vide invoice No.M-961 dated 26.01.2015. At the time of purchase, the OP No.1 also charged a sum of Rs.999/- for premium of the insurance and accordingly insured the said mobile set. After receiving premium of Rs.999/-, the OP No.1 issued a bill in the name of “Biscuit Currency” and thereafter the complainant filed a consumer complaint at Nawanshahr. OP No.1 told the name of the insurance company i.e. New India Assurance Company Limited/OP No.2. An assurance was given by OP No.2 that in case of lost, theft and breakage of the mobile set, the all damages will be paid by the insurance company. On 27.11.2015, the mobile of the complainant was lost at Nawanshahr and accordingly he got recorded DDR No.1012078 on 28.11.2015 at Suvidha Centre, Mukandpur and similarly the information in regard to loss of mobile was also given to OP No.1 on 22.12.2015 alongwith all documents and requested for making a payment of the claim as per insurance policy but OP No.1 did not give any satisfactory reply and further stated that the OP No.1 while filing a written reply in the consumer complaint of the complainant at Nawanshahr, filed a reply, wherein stated that insurance is free with the phone despite that the OP No.1 recovered sum of Rs.999/- as premium from the complainant, whereby cheated the complainant and violated the provision of the Consumer Protection Act and OP No.1 also harassed the complainant by not paying the damages claim and further prayed that the complaint of the complainant may be accepted and OPs be directed to pay the price of the mobile set or in alternative return the new mobile set and further OPs be directed to pay the damages of Rs.40,000/- and litigation expenses of Rs.30,000/-

2. Notice of the complaint was given to the OPs but despite service, OP No.1 did not come present and ultimately OP No.1 was proceeded against exparte, whereas OP No.2 served and appeared through his counsel and filed reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable against the answering OP No.2 and as such the complaint is liable to be dismissed and further averred that in the absence of insurance particulars, it cannot be admitted that the mobile phone's make and model D 2212 Xperia E3 was insured with the OP No.2 or that any claim qua the loss of mobile phone is in question has been lodged with the answering OP No.2. The OP No.1 has been proceeded against exparte from whom the complainant allegedly purchased the mobile phone and got the same insured and the complainant has failed to produce on record the particulars of insurance policy despite application for production of insurance policy, as such the complaint against the answering OP No.2 is liable to be dismissed. On merits, all the allegations as made in the complaint are categorically denied and lastly prayed that the complaint of complainant is without merits and the same may be dismissed.

3. In order to prove his case, the representative of the complainant tendered into evidence documents Ex.C1 Copy of FIR, Ex.C2 Copy of Retail Invoice No.M-961, Ex.C3 Copy of Retail Invoice No.M-960, Ex.C4 Copy of order of SBS Nagar dated 01.06.2016, Ex.C5 Reply of complaint on behalf of OP No.1 and closed the evidence.

4. Similarly, counsel for the OP No.2 tendered into evidence affidavit of Smt. Poonam Sharma, Deputy Manager Ex.OA and reply to the application for providing of Insurance Particulars filed by complainant dated 10.10.2016 Ex.O1 and closed the evidence of OP No.2.

5. We have heard the representative of the complainant as well as learned counsel for the OP No.2 and also gone through the case file very minutely.

6. It is established on the file that the complainant purchased a mobile Xperia Model D2212-E3/White on 26.01.2015 and invoice of the same is available on the file Ex.C3. No doubt the complainant lodged DDR with the Police Station Mukandpur, District SBS Nagar and copy of the same is available on the file Ex.C1 but simply loss of the mobile set is not sufficient to award a price of the mobile as well as compensation of the same to the complainant, until the complainant is not able to establish on the file that he has got insured the said mobile set, no doubt the complainant has made good efforts to prove on the file that he got insured the said mobile after making a payment of the premium of Rs.999/-, vide receipt Ex.C2, but if we go through the said receipt Ex.C2, then we can say without any hesitation that the said receipt Ex.C2 is not a receipt of the payment of insurance premium rather it is a bill of some purchase of Biscuit Currency E3 and there is no sign of the insurance company, where from we can assess that the said receipt is related to any insurance company in any manner and even the OP No.2 insurance company appeared through his counsel and filed reply and categorically denied that they never issued any insurance to the mobile set of the complainant. So, if the mobile set is not got insured by the complainant with the OP No.2, then the complainant is not entitled for the claim as alleged in the complaint. Further the complainant himself alleged in the para No.6 of the complaint that the OP No.1 cheated with the complainant and thereby violated the provision of Consumer Protection Act and whenever any plea of cheating or misrepresentation is taken by the complainant, then jurisdiction of the Consumer Forum is ousted and accordingly, we find that the remedy with the complainant is only to file a complaint before the appropriate Forum, where the matter in regard to cheating is to be settled but the claim of cheating is not within the preview of the District Consumer Forum and accordingly with the above observation, we reached to the conclusion that the representative of the complainant could not able to convince to this Forum to accept the complaint rather from his argument, it is established that the case of the complainant is without merit. So, accordingly we have no option except to dismiss the complaint and accordingly ordered. Therefore the complaint is dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.

7. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

02.08.2017 Member President