DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.138 of 2017

                                                Date of institution:  17.02.2017                                              Date of decision   :  03.06.2019

Harmanpreet Singh Batra son of S. Jaspreet Singh, resident of House No.1711, Phase 3B-2, Mohali.

…….Complainant

Versus

1.     New India Assurance Company Limited, SCO No.54-55, Near Mukut Hospital, Sector 34-A, Chandigarh through its Senior Branch Manager.

2.     The Uni-com Suraksha TPA, SCO No.4, Puda Complex, Ladowali Road, Jalandhar.

3.     Mr. Mobile,  Booth No.93, Phase-10, Mohali.

4.     Mobile Solutions, SCF No.48, FF, Phase-5, Mohali.

                                                      ……..Opposite Parties        

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Shri Balwinder Singh Jolly, counsel for complainant.

                Shri S.K. Arora, counsel for OP No.1.

                OP No.2, 3, and 4 ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

                 Complainant after purchase of Samsung mobile set from OP No.3 through invoice dated 14.04.2016 for price of Rs. 26,000/-, got the same insured by paying premium of Rs. 2700/-. That insurance cover provides compensation equivalent to cost of replacement of instrument with a new instrument of the same specifications. Said insurance covers accidental damage, loss and damage caused to the gadget owing to stop work. On 21.01.2017 complainant was going to market from his residence on scooter, which slipped suddenly resulting in damage to the mobile set in question. Thereafter complainant approached OPs and reported about the incidence. Complainant received letter from OP No.2 for calling upon him to submit the documents motioned in that letter. OP No.3 through email dated 21.01.2017 called upon complainant to get the estimate/job sheet of the mobile set in question prepared. Copy of insurance claim and incident report alleged to be annexed with the complaint. OP No.4 is an authorized service centre of Samsung from whom estimate of damage of Rs.13,062/- got prepared. Requisite documents were sent to OP No.2,  but to utter surprise of complainant, claim of complainant was repudiated in mechanical manner by claiming that insurance policy does not cover loss caused by incorrect storage, poor care and maintenance, careless use, gross negligence, incorrect installation and incorrect set up. That repudiation letter was sent by OP No.2. No terms and conditions of insurance policy were ever supplied to the complainant. Even IRDA has issued guidelines to the insurance companies for calling upon them not to reject insurance claims on technical grounds. By pleading deficiency in service on part of the OPs, prayer made for directing OPs to pay Rs. 26,000/- price of the mobile set with interest @ 18 % per annum from the date of filing of claim. Compensation for mental agony and harassment of Rs.50,000/- and litigation expenses of Rs.21,000/- more claimed. 

2.             In short reply submitted by OP No.1 it is claimed that complainant has not placed on record insurance policy pertaining to OP No.1 for covering the date of alleged accidental damage. In absence of such policy it is difficult to file detailed written reply. Right of filing detailed reply was reserved, but thereafter the same has not been filed.

3.               In separate reply filed by OP No.3, it is claimed that OP No.3 sells mobiles of companies as per authorization.  In case any issue arises after the sale, then those are looked into by the company by way of their service junctions located at different places. OP No.3 claims that it has no responsibility after sale. Insurance is a matter between customer and insurer because claim of insurance payable as per terms and conditions settled between the parties through mutual agreement.

4.               In reply filed on behalf of OP No.4, it is claimed that dispute is only with respect to insurance policy taken by complainant, and OP No.4 has no role to play in the same. OP No.4 is only authorized service centre of the company, which just provides estimation of the repairs, on being approached by the concerned. No instructions given to OP No.4 for carrying out repairs of the mobile set in question. Neither the mobile set and nor the insurance policy sold by OP No.4 to the complainant.

5.             OP No.2 is ex-parte in this case

6.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-8 and thereafter closed evidence. On the other hand, counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Shri N.K. Grover, Deputy Manager alongwith documents Ex.OP-1 and Ex.OP-2 and thereafter evidence of OP No.1 was closed.  None of other OPs produced any evidence and they were proceeded against ex-parte owing to their continuous non appearance.

7.             Written arguments in this case submitted by OP No.1 and not by any of the other party. Oral arguments of counsel for complainant and OP No.1 heard and records gone through.

8.             Purchase of mobile set in question by complainant from OP No.3 proved by invoice Ex.C-1. On invoice Ex.C-1 itself it has been mentioned that after sale of goods liability for guarantee/warranty conditions of OP No.3 does not remain and as such certainly OP No.3 cannot be held liable for any claim with respect to insurance of mobile set in question. Present complaint is a complaint for seeking insurance claim with respect to the mobile set in question owing to accidental damage to it and as such complaint is maintainable against OP No.1 and not against the service centre or the seller or TPA because TPA to make recommendations for settlement of claim and do nothing more than that. So complaint against OP No.2 to 4 being not maintainable merits dismissal and is hereby ordered to be dismissed.

9.             Complainant has placed on record incident report Ex.C-3 alongwith welcome letter Ex.C-2 for showing that complainant choose to get the purchased mobile in question insured. Damage to the mobile set in question caused as per incident report Ex.C-3, when the same fell down on account of slipping of scooter on which complainant was going. So damage to the mobile set caused in course of accident and as such insurance claim certainly is maintainable against OP No.1.

10.           Perusal of Ex.C-4 shows that insurance claim of complainant was registered by OP No.1 and complainant was called upon to submit incident report, claim form and other documents mentioned in Ex.C-4 and those documents alleged to be submitted, but despite that through communication Ex.C-7, the claim file was closed due to the reason that insurance policy does not cover loss caused by incorrect storage, poor care and maintenance, careless use, gross negligence, incorrect installation and incorrect set up. Present case is not covered by any of those exclusionary clauses, referred in letter Ex.C-7 because present is a case of accidental fall of mobile on account of slipping of scooter driven by complainant. So present is not a case of incorrect storage or of poor care and maintenance or of careless use or of gross negligence or of incorrect installation or of incorrect set up. Being so, closure of claim through letter Ex.C-7 has been done in an arbitrary and illegal manner and as such repudiation of insurance claim is absolutely unjustified.

11.           Complainant got estimate of repairs Ex.C-5 prepared from authorized service centre namely OP No.4 by depositing fee through transaction receipt Ex.C-6 and as such it is obvious that complainant sustained estimated loss of Rs.13062/- mentioned in Ex.C-5. Counsel for complainant vehemently contends that complainant entitled to whole of amount of Rs.13,062/- or an amount of Rs.26,000/-, the price of mobile in question and as such complaint deserves to be allowed. However, those submissions vehemently controverted by counsel for OP No.1 by contending that claim is payable as per terms and conditions of the policy because those are binding on the parties. Certainly the parties are bound by terms and conditions of contract of insurance policy and nothing can be added or subtracted to those terms by giving different meaning to the words mentioned in the insurance contract.  In holding this view we are fortified by law laid down in Ind Swift Vs. New India Assurance Co. Ltd. & others IV (2006) CPJ 148 (NC); Usha Sharma & Others Vs. New India Assurance Co. Ltd. & others I (2012) CPJ 488 (NC); United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal IV (2004) CPJ 15 (SC) and Deokar Exports Pvt. Ltd. Vs. New India Assurance Company Ltd. I (2009) CPJ 6 (SC). The law laid down by Hon’ble Supreme Court of India is the law of land in view of Article 141 of Constitution of India and as such the same to be given precedence over the law laid down by Hon’ble State Consumer Disputes Redressal Commission UT, Chandigarh in case titled as Unicorn Infosolutions Pvt. Ltd. Vs. Pallavi Sharma bearing First Appeal No.59 of 2018 decided on 24.08.2018 or by the Ld. District Consumer Disputes Redressal Forum-I, UT Chandigarh in Consumer Complaint No.804 of 2017  titled as Shakti Paul Sharma Vs. UB Insurance Associates decided on 10.12.2018.  So benefit from the ratio of cited cases by complainant cannot be gained because in those cases decided by Hon’ble State Consumer Disputes Redressal Commission UT, Chandigarh or by the Ld. District Consumer Disputes Redressal Forum-I, UT Chandigarh, question was not involved as to enforcement of terms and conditions of the insurance policy, but that question raised through arguments by counsel for OP No.1 in this case.

12.               Copy of terms and conditions of the insurance policy produced on record as Ex.OP-1. Section 4 of Ex.OP-1 provides that maximum liability with respect to total loss claimed will be calculated as follow by applying depreciation of claim value for cases like total loss, theft and replacement, swapping etc.

13.           So submission advanced by counsel for OP No.1 has force that claim is payable after applying deprecation clause by keeping in view age of mobile set in question. Even if mail Ex. OP-2 may have been produced on record for claiming that complainant has not submitted original documents due to which claim file stood closed, but despite that letter Ex.C-7 points to contrary. Different reasons for closing of claim are mentioned in Ex.C-7 vis-à-vis contents of Ex.OP-2 and as such it is obvious that OP No.1 deliberately not paid the claim amount by resorting to dilly dally tactics. Being so, entitlement of complainant for compensation amount for metal agony and harassment and of litigation expenses for somewhat reasonable hefty amount not exceeding price of mobile phone, is there. Complainant not entitled to claim total amount of Rs.26,000/- and submission of counsel for the complainant in that respect has no force. It is contended by counsel for the complainant that copy of terms and conditions of insurance policy was never conveyed to the complainant at the time of sale of the policy, but complainant submitted insurance claim form along with incident report Ex C-3, on the   basis of welcome letter received with respect to activation of the insurance policy conveyed through Ex.C-2 and as such complainant certainly is bound by terms and conditions of the insurance policy, more so when in Ex.C-2 itself it has been mentioned that consumer  in case of need for further  assistance may contact on toll free number or through email referred in Ex. C-2 itself. After receipt of welcome letter Ex.C-2, it was the duty of complainant to know about terms and conditions of the insurance policy by availing services through telephonic call or through email which he choose not to avail and as such fault lay with complainant in not seeking for terms and conditions of the insurance policy. However, terms and conditions of policy to govern the claim settlement matter in question, in view of above discussed legal position.

14.         No other point worth mentioning argued.

15.        As a sequel of above discussion, complaint allowed with direction to OP No.1 to settle claim of complainant as per terms and conditions of policy within 30 days from the date of receipt of copy of order and thereafter pay the amount within 30 days,  failing which complainant will  be entitled to interest @ 8% per annum on the due amount from today onwards till payment. Compensation for mental agony and harassment of Rs.8,000/- and litigation expenses of Rs.7,000/- more allowed in favour of complainant and against  OP No.1 only.   Complaint allowed against OP No.1 only. Complaint against OP No.2 to 4 dismissed.  Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

June 03, 2019

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member