Order dictated by:
Sh.Anoop Sharma,Presiding Member
1. Tarang Bharti has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that complainant purchased one Mobile Samsung Galaxy A5 Model having IMEI No. 356320063064473 from opposite party No.3 for a sum of Rs. 20,700/- vide invoice No. 734 dated 17.4.2015. At the time of purchase of the abovesaid mobile ,opposite party No.3 persuaded the complainant for the insurance of the said mobile from opposite party No.1 through agents of opposite party No.2. As such the complainant on the persuasions of opposite party No.3, got insured the abovesaid mobile phone from opposite party No.1 and 2 vide policy No. 670302461324000000008/15 covering the risk of damage as well as theft of the abovesaid mobile and the said policy activated on 17.4.2015. On 22.1.2016 the complainant was coming back from Ludhiana to Amritsar and while coming down from bus in Amritsar the abovesaid mobile of the complainant was taken out from the pocket of jacket of complainant and was immediately switched off. Regarding this complainant lodged a report dated 22.1.2016 to the Incharge of Police Post Bus Stand, Amritsar and it was toe chained with FIR No. 417 dated 24.11.2015. Opposite parties No.1 & 2 were also informed about the said theft and opposite parties registered impugned claim of the complainant and all the formalities were complied with by the complainant . The complainant made several visits to the office of opposite parties No.1 & 2 to know the status of claim, but received no satisfactory reply. Vide instant complaint, complainant has sought for the following reliefs:-
(a) Opposite party be directed to pay a sum of Rs. 20,700/- to the complainant i.e. sum assured alongwith interest @ 12% p.a. ;
(b) Compensation to the tune of Rs. 50000/- may also be awarded to the complainant alongwith adequate litigation expenses.
Hence, this complaint.
2. Upon notice, opposite party No.1 appeared and filed written version taking certain preliminary objections therein inter alia that complaint filed by the complainant is not legally maintainable being premature and without any cause of action. In this regard , it was submitted that as per Apps Daily Claim Management System, requisite claim documents and other information available with the Bangalore Office of the opposite party, it has been confirmed that the claim is pending for shortfall in requisite claim documents. The complainant has not submitted any independent FIR pertaining to the alleged loss of his mobile. However, the complainant submitted FIR dated 24.11.2015 with the Insurance company which is prior to the date of loss i.e. 23.1.2016 and as such the said FIR dated 24.11.2015 does not pertain to the claim of the complainant. Moreover the said FIR filed by Surinderjit Singh Walia and as such the claimant was informed to substantiate the relation with Surinderjit Singh Walia because as per policy terms and conditions, it has been clearly added under the clause “Beneficiary/user that purchaser whose name is mentioned in the purchase invoice. However his/her spouse , children and parents can use the equipment. The complainant has failed to submit any documents showing that the said Surinderjit Singh Walia is related to his family members. Under these circumstances, the claim could not be considered on merits and as such the complaint filed by the complainant is premature ; that the complainant in his complaint has simply mentioned that on 22.1.2016 when the complainant was coming back from Ludhiana to Amritsar and while coming down from bus in Amritsar, he noticed that the said mobile of the complainant has been taken out from the pocket of jacket of the complainant. As such the complainant has not taken reasonable care to safeguard the insured equipment, therefore, complaint filed by the complainant is not maintainable and opposite party No.1 is not liable to pay any claim as per exclusion clause that if the loss has been caused due to negligence of the insured, then the Insurance company is not liable to pay the claim ; that as per policy supplied by the complainant, the name of insured is Apps Daily Solutions Pvt.Ltd from which it is apparent that the complainant is not the insured directly of the opposite party. On merits, facts narrated in the complaint have specifically been denied and a prayer for dismissal of complaint was made.
3. Opposite party No.3 in its written version has submitted that purchase of mobile handset is a matter of record and the replying opposite party has nothing to do with the Insurance got done by the complainant and the replying opposite party never persuaded the complainant to get the insurance cover for his handset as the replying opposite party has no privity of contract with the alleged insurance companies. While denying and controverting other allegations, dismissal of complaint was prayed.
4. Opposite party No.2 did not opt to put in appearance despite service of notice, as such it was ordered to be proceeded against ex-parte.
5. In his bid to prove the case Sh. Munish Kohli,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-16 and closed the evidence on behalf of the complainant.
6. To rebut the aforesaid evidence Sh.P.N.Khanna,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.S.K.Sharma,Divisional Manager Ex.OP1/1 as well as Ex.OP1/2 alongwith documents Ex.OP1/3 to E x.OP1/7 and closed the evidence on behalf of opposite party No.1.
7. On the other hand Sh.Deepinder Singh,Adv.counsel for opposite party No.3 tendered into evidence affidavit of Sh.Manjit Singh,Prop Mobile Plaza Ex.OP3/1 and closed the evidence on behalf of opposite party No.3.
8. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
9. On the basis of the evidence on record, ld. Counsel for opposite party No.1 has vehemently contended that the complainant has not submitted any independent FIR pertaining to alleged loss of his mobile. However, the complainant submitted FIR dated 24.11.2015 with the Insu.company which is prior to the date of loss i.e. 23.1.2016 and as such the said FIR dated 24.11.2015 does not pertain to the claim of the complainant. Moreover the said FIR was filed by some Surinderjit Singh Walia and the complainant was informed to substantiate the relation with Surinderjit Singh Walia. But the complainant has failed to submit any document showing that the said Surinderjit Singh Walia is related to his family members in any relation . It has further been contended by the Ld.counsel for the opposite party No.1 that inspite of intimation given to the insured regarding short fall of documents through their Apps Daily Call Centre on 9.6.2016 the complainant has failed to submit the following documents :-
- Original Purchase Invoice
- Independent FIR/Police complaint with details cause of loss and IMEI No.
- Sim Blocking
- Cancelled cheque
- Self Attested photo ID proof.
As such the claim file of the complainant has been closed as no claim and there is no deficiency of service on the part of the opposite party.
10. But ,however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant purchased mobile phone in dispute on 17.4.2015 from opposite party No.3 on payment of Rs. 20700/- vide retail invoice , copy whereof is Ex.C-2 on record. It is further case of the complainant that opposite party No.3 had insurance contract with opposite parties No. 1 & 2 and on insistence of opposite party No.3, complainant got his mobile phone in dispute insured from opposite parties No. 1 & 2 vide policy No. 670302461324000000008/15 copy of Insurance policy accounts for Ex.OP1/7. It is further proved on record that mobile phone in dispute was taken out from the pocket of jacket of complainant and the complainant lodged a report dated 22.1.2016 to the Incharge of Police Post Bus Stand Amritsar regarding the loss of the mobile set in dispute. Copy of the application accounts for Ex.C-2. Copy of FIR regarding receipt of missing mobile is Ex.C-3 which was clubbed one regarding the theft of CCTV Camera belonging to Surinderjit Singh Walia dated 24.11.2015 and untraced report was submitted by the police to the Ilaqa Magistrate, copy of proceedings u/s 173 Cr.P.C. account for Ex.C-4. The plea of the opposite party that as the complainant has not submitted an independent FIR as the FIR submitted by the complainant is dated 24.11.2015 i.e. prior to the date of loss i.e. 23.1.2016 and is related to some Surinderjit Singh Walia. However, this plea of the opposite party is not tenable as it is upon the police authorities to record a joint FIR or a separate FIR as the duty of the complainant is only to inform the police regarding the incident which the complainant has duly informed the police vide application Ex.C-2 regarding loss of his mobile handset. Secondly the opposite party has submitted that as the complainant has not supplied the requisite documents , as such the claim file has been closed as No claim. But this plea of the opposite party also stands falsified as the complainant vide letter Ex.C-5 has submitted all the documents as required by the opposite party. The complainant submitted mobile hand set Insurance claim form for indemnification of the loss under Insurance cover, copy whereof is Ex.C-6 alongwith documents. But , however, despite receipt of the claim form alongwith documents, opposite parties No.1 & 2 have failed to redress the grievance of the complainant. The loss covered relates to risk of Fire, Lightning , Riot, Strike, Mallicious damage, Theft/Burglary, Accidental External means, including accidental liquid damage, Fortuitous Circumstances in knowledge of the insured, Act of God’ perils viz flood, Hurricane, Storn, Tempest, Typhoon, copy whereof is Ex.C-16 on record. But , however, opposite parties No.1 & 2 have failed to pay the insurance claim to the complainant without any reasonable excuse.
11. In our considered opinion, complainant has proved on record the allegations made in the complaint against opposite parties No.1 & 2 and opposite parties No.1 & 2 are under legal obligation to indemnify the loss of the complainant to the tune of Rs. 20700/- i.e. price of the insured mobile hand set . The complainant is also entitled to receive a sum of Rs. 3000/- on account of deficiency in service on the part of opposite parties No.1 & 2 besides that the litigation expenses are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the receipt of copy of the order ; failing which , awarded amount shall carry interest @ 9% p.a.from the date of filing of the complaint until full and final recovery. Complaint against opposite party No.3 fails and the same is ordered to be dismissed against opposite party No.3. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 28.4.2017
