Haryana

Panchkula

CC/49/2016

AKSHAT MAHAJAN - Complainant(s)

Versus

NEW INDIA ASSURANCE COMPANY LTD & OTHERS.. - Opp.Party(s)

JATIN SHERAWAT

24 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.                  

                                                                  

Consumer Complaint No	:	49 of 2016
Date of Institution	:	02.03.2016
Date of Decision	:	24.08.2016

                                                                                          

Akshat Mahajan, age 21 years, son of Sh.Sanjeev Kumar Mahajan, R/o House No.472, Sector-4, Panchkula, Haryana.

 

                                                                                      ….Complainant

Versus

1.       The New India Assurance Company Limited, through its Managing Director, having its regional office-Claim Hub, 2-B, Unity Building Annexe, Mission Road, Bangalore-560027.

2.       Appadaily Solutions Private Limited, through its Managing Director, having its registered office at D3137-39, Oberoi Garden Estates, Chandivali Farm Road, Andheri (E), Mumbai-400072.

                                                                             ….Opposite Parties

3.       Pioneer Traders, through its proprietor SCO-1038, Sector 22-B, Chandigarh.

                                                                       ….Performa Opposite parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr. Dharam Pal, President.

Mrs. Anita Kapoor, Member.

Mr.S.P.Attri, Member.

                            

For the Parties:     Mr.Jatin Sherawat, Adv., for the complainant.

                             Mr.Nitin Gupta, Adv., for the OP No.1.

                             Ops No.2 and 3 already ex-parte.

 

ORDER

(Dharam Pal, President)

 

1. In brief, the complainant had purchased a mobile handset make HTC One E8 Red. No.354340060509793 from the OP No.3 for a sum of Rs.32,400/- on 04.10.2014 (Annexure C-1) which was insured at the time of purchase from the Op No.2 and the complainant deposit a premium of Rs,1749/- for the insurance. On 14.07.2015, in the evening, the mobile handset of the complainant was stolen while playing football in Townpark, Sector-5, Panchkula. There was two sims bearing No.8699383652 and 9988866472 in the mobile handset. The complainant lodged a DDR at Police Station, Sector-5, Panchkula. The complainant also informed the insurance company i.e. Ops No.1 & 2 which was confirmed through email on 16.07.2015. Thereafter, the complainant requested the mobile service providers of his mobile numbers to stop the services of his mobile numbers as his mobile handset got stolen. On 16.07.2015, the complainant submitted all the original documents i.e. the mobile bill, insurance premium memo etc. alongwith insurance claim form with the Ops. The Op No.2 is the sister concern of the Op No.1 which deals in the mobile insurance. On 11.11.2015, the complainant received a letter from the Op No.1 vide which the claim of the complainant was repudiated on the ground that: “handset stolen while playing football, mobile was kept aside in a bag.. Exclusion; Misrepresentation: Non disclosure of material facts. Claimant name not mentioned in purchase invoice. Also, handset left unattended if kept aside in a bag”. After receiving the letter dated 11.11.2015, the complainant approached the Op No.1 and asked about the repudiation of claim as the reason mentioned of the repudiation is nowhere mentioned in the guidelines issued by the Op No.1. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Op No.1 appeared before this Forum and filed written statement by taking some preliminary objections and it is submitted that the complainant name was not mentioned in the purchase invoice of the mobile handset. It is submitted that the complainant has failed to establish his ownership/insurable interest in the lost mobile. It is submitted that the mobile was stolen while playing football. It is submitted that the complainant kept the mobile in bag and left it unattended, due to which the mobile was stolen which was a great negligence on the part of the complainant and the Op No.1 has rightly repudiated the claim of the complainant under the terms and conditions of insurance policy. It is submitted that the mobile was insured under the insurance policy No.67030246132400000008 purchased by the Op No.2 from the Op No.1. It is submitted that the mobile was stolen due to carelessness of the complainant and the claim of the complainant rightly repudiated under terms and conditions of the policy. Thus, there is no deficiency in service on the part of the Op No.1 and prayed for dismissal of the complaint.  
3. Notice was issued to the Op No.2 through registered post. But none has appeared on behalf of the Op No.2. It is deemed to be served and the Op No.2 was proceeded ex-parte vide order dated 10.06.2016.
4. Notice was issued to the Op No.3 through registered post. But none has appeared on behalf of the Op No.3. It is deemed to be served and the Op No.3 was proceeded ex-parte vide order dated 11.04.2016.
5. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-18 and closed the evidence. On the other hand, the Op No.1 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 to R1/3 and closed the evidence.
6. We have heard learned counsel for the parties and have also perused the record with utmost care and circumspection.
7. The complainant had purchased the mobile in question from OP No.3 which was insured with OP No.1 as is evident through Annexure C1. The complainant has come with the plea that his mobile set was stolen by someone while he was playing in a park at Panchkula on 14.07.2016  but the OP No.1 despite completing all the formalities has repudiated his claim wrongly. The certificate of the insurance (Annexure C-2) contains the following exclusion clause relating to the insurance cover of the hand set mobile sold to the complainant:

"Due to mysterious disappearance, forgotten, missing or misplaced or lost or if handset is left unattended at any point of time or any unexplained loss”

 

The complainant has lodged the D.D.R. No. 16 dated 15.07.2015 with the Police Station Sector, 5 Panchkula wherein it was stated that while he was playing football in Town park then his mobile was stolen. It appears that the complainant has changed his version on two counts because perusal of the case file reveals that in para no.3 of the complaint the complainant has mentioned that he had gone to Town Park Sector-5 Panchkula in the evening to play football then the mobile handset was stolen but in the DDR Annexure C-15 it has been mentioned that while playing football the mobile handset was stolen. It is well settled law that the complainant has to stand his own legs to prove his case but in the present case the version of the complainant is contradictory because he has failed to prove on the case file that when the mobile was stolen where it was kept whether in the pocket of his pent or in the pocket of his shirt or it was lying in open area or in any bag or in any other thing.  The OP No.1 has repudiated the claim on the ground that the mobile phone was left unattended because it was kept aside in a bag but neither the complainant explained where the mobile was kept nor rebutted the plea taken by the OP No.1 while repudiating the claim of the complainant. No doubt the provisions of the CP Act are benevolent in nature but it does not give any liberty to take undue advantage of the same because the circumstances clearly indicate that definitely the complainant has tried to make the improvement with regard to his version than what was recorded in the D.D.R. recorded with the police.  The complainant has not been able to prove his case by leading cogent and reliable evidence; therefore, we have no hitch to reach at a conclusion that the complaint deserves dismissal. Accordingly, we dismiss the present complaint with no order as to costs.  A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

Announced

24.08.2016       S.P.ATTRI                   ANITA KAPOOR        DHARAM PAL

                         MEMBER          MEMBER                      PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                 

                                                         DHARAM PAL

                                                          PRESIDENT