PER:
Nidhi Verma, Member.
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite parties on the allegations that the complainant is a law abiding citizen of India and for his personal use he purchased one mobile phone of model MWLT2HN/A I-phone 1164 GB Black from the opposite party No. 2 vide invoice No. AMRT1908PI0267 dated 12.11.2019 for Rs. 65,000/- and at the time of purchasing the above mentioned mobile it was got insured by the opposite party No. 2 through opposite party No. 1 for damage protection up to the price of the mobile i.e. Rs. 65,000/- till the expiry of one year from the date of purchase of the mobile and the complainant paid Rs. 5,500/- to the opposite party No. 2 as premium for getting the insurance cover of his mobile from opposite party No. 1. At the time of insuring the above mentioned mobile the opposite parties No. 1 and 2 assured that in case of any sort of damage to the mobile phone the complainant will be paid the amount of loss suffered in any damage of the mobile phone in any instance of any nature. The above mentioned mobile phone of the complainant got damaged due to falling on ground and also due to overriding of a vehicle over it and as such, it was fully damaged in the occurrence and as such, the product being insured with the opposite party No. 1 through opposite party No. 2, the complainant immediately informed the opposite parties regarding it for getting the insurance claim of total loss of mobile phone i.e. the total loss cover equivalent to the price of the mobile i.e. Rs. 65,000/- and it was assured by the opposite parties on lodging of the claim by the complainant, the claim amount will be released to him within a period of 10 days so the complainant awaited for this period but in spite of awaiting no claim was released to the complainant. The complainant approached the opposite parties through mails and personal visits several times but nothing was done by the opposite parties regarding the grievance of the complainant. The complainant prayed the following relieves may kindly be granted to the complainant.
- That the opposite parties may kindly be directed to release the insurance claim amounting to Rs. 65,000/- to the complainant immediately,
- That the opposite parties may kindly be directed to pay compensation of Rs. 30,000/- for causing harassment of the complainant.
- That the opposite parties may kindly be directed to pay litigation expenses of Rs. 20,000/- to the complainant.
Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Self attested copy of Bill Ex. C-2.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 2 appeared through counsel and has filed written version by interalia pleadings that admittedly, the insurance cover purchased by the complainant is provided by the opposite party No. 1. The entire onus in the matter, if any, lies with the opposite party No. 1, since the complainant has privity of contract only with the opposite party No.1. Again admittedly, the opposite party No. 2 had neither provided any assurances regarding such insurance nor gave any representations to the complainant to purchase such insurance policy. The opposite party No. 2’s role was restricted solely to sell the insurance policy to the complainant because the complainant had asked to purchase it and had paid the premium. The opposite party No. 2 did not enter in to any contract of insurance with the complainant and therefore has no privity of contract with the complainant in respect of the insurance cover. In the complaint, the complainant does not complain about any deficiency in his device or any service for the device and admits that the device suffered due to his own negligence. Therefore, any claim that the complaint may have regarding the insurance policy or any right to sue is only against the insurer that is the opposite party no. 1 and not against its retailer, that is, the opposite party No. 2. Accordingly, the complainant’s claim is liable to be dismissed against the opposite party No. 2 on account of frivolous misjoinder of such party to the complaint. The complaint also suffers from complete lack of territorial jurisdiction in this commission. The product complained about was neither purchased in Tarn Taran nor do any of the opposite parties have any branch office at Tarn Taran. Therefore, the complaint deserves summary dismissal entirely on this technical ground. The complainant has wrongly impleaded the opposite party No. 2 in to the complaint without indicating any cause of action against it with the singular malafide intention of harassing and blackmailing the opposite party No. 2. The opposite party No. 2 is not obligated to the complainant for any insurance claim or any compensation simply because the opposite party No. 2 is not the insurer. Therefore, the complaint is liable to be dismissed as against opposite party No. 2. Admittedly, the complainant has failed to indicate any unfair trade practice or deficiency of service on the part of opposite party No.2. In fact, the complainant does not even have a right to sue the opposite party No. 2 in respect of the insurance policy. Accordingly, the entirely false and frivolous complaint of the complainant is liable to be dismissed forthwith with exemplary cost imposed upon the complainant. Amount of Rs. 5500/- was the premium that the complainant paid to the opposite party No. 1. The opposite party No. 2 was only incidentally the agency through which the premium was paid, without the opposite party no. 2 neither offering any service nor receiving consideration for it. The opposite party No. 2 did not offer any assurance to the complainant and the complainant purchased the insurance policy out of his own volition and free will. The complainant may have informed the opposite party No. 1 which is the necessary party but not the opposite party No.2. No such assurance was ever given by the opposite party No. 2 to the complainant and denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 2 has placed on record Copy of invoice Ex. OP2/1, affidavit Ex. OP2/2, Copy of authority letter Ex. OP2/3.
3 The complainant has withdrawn the present complaint against opposite party No. 1 vide order dated 13.10.2021.
4 We have heard Ld. counsel for the complainant and opposite party No. 2 carefully gone through the record.
5 In the present complaint, the complainant purchased one mobile phone of model MWLT2HN/A I-phone 164 GB Black from the O.P No.2 vide invoice No. AMRT1908PI0267 dated 12.11.2019 for Rs.65000/- and at the time of purchasing the above mentioned mobile it was got insured by the O.P No.2 through O.P No.1 for damage protection upto the price of the mobile i.e. Rs.65000/- till the expiry of one year from the date of purchase of the mobile and the complainant paid Rs.5500/- to the O.P No.2 as premium for getting the insurance cover of his mobile from the O.P No.1
6 The above mentioned mobile phone of the complainant got damaged due to falling on the ground and also due to overriding of a vehicle over it and as such it was fully damaged in the occurrence and as such the product being insured with the opposite party No.1 through opposite party No.2 the complainant immediately informed the opposite parties regarding it for getting the insurance claim of total loss of mobile phone. The complainant approached the O.Ps through mails and personal visits several times but nothing was done by the O.Ps regarding the grievance of the complainant .Later on dated 15.10.2020 the O.Ps flatly refused to release the claim of Rs 65000/- to the complainant without giving any genuine reason for the same .
7 O.P No.2 stated in their written version that the O.P No.2’s role was restricted solely to selling the insurance policy to the complainant because the complainant had asked to purchase it and had paid the premium. The O.P No.2 did not enter into any contract of insurance with the complainant and therefore has no privity of contract with the complainant in respect of the insurance cover. Further, the complainant does not complain about any deficiency in his device or any service for the device and admits that the device suffered due to his own negligence. Therefore, any claim that the complainant may have regarding the insurance policy or any right to sue is only against the insurer that is opposite party No. 1 and not against its retailer that is the opposite party No 2.
8 As a result of the above discussion we are of the considered view that, from the material available in the record it is clear that the complainant purchased one mobile phone of model MWLT2HN/A I-Phone 1164 GB Black from the O.P No 2 vide invoice No. AMRT1908PI0267 dated 12.11.2019 for Rs.65000/- (Ex.C-2). At the time of purchasing the above mentioned mobile phone, the complainant got his mobile phone insured for damage protection up to the price of the mobile phone i.e. Rs. 65000/- till the expiry of one year from the date of purchase of the mobile through O.P No.2 and the complainant paid Rs.5500/- as premium. As per mobile bill (Ex. C2) , O.P No.2 instead of providing identification card of insurance or insurance policy received the insurance premium in the mobile bill as “Mobile damage Protection Apple 50kto 70k” but failed to supply any insurance certificate or insurance policy. Further, no name of insurance company was written on the mobile bill. O.P No.2 has taken a plea that , “their role was restricted solely to sell the insurance policy to the complainant but did not enter into any contract of insurance with the complainant”. It is pertinent to mention over here that , if O.P No. 2 issued the bill of the premium of the insurance to the complainant on their bill then how they have no liability regarding the mobile damage protection. O.P No.2 failed to provide any evidence on record to prove that ,they are not liable to pay for the damage of the mobile phone as no other receipt of insurance premium has been placed on record no terms and conditions or no insurance certificate are placed on record. O.P No.2 himself placed on record the bill of the above mentioned mobile phone (Ex.R 2/1) which clearly shows that O.P No.2 received the amount of the mobile phone plus mobile damage protection and hence liable for the same . O.P NO. 2 has taken a plea that the complainant has failed to indicate any unfair trade practice or deficiency of service on the part of the O.P No.2. As per mobile bill O.P No.2 failed to provide any insurance certificate or policy/ terms and conditions of the insurance policy . Moreover, O.P No.2 deducted the premium of the mobile damage protection insurance on its own mobile bill instead of supplying any additional receipt or bill. However, O.P No.2 failed to provide insurance certificate, insurance policy, insurance terms and conditions and insurance premium receipt to the complainant which itself proves deficiency and unfair trade practice of service on the part of the O.P No.2 . Ld. counsel for the opposite party contended that the complainant has not approached the opposite party No. 2, however, the complainant has filed the present complaint and same is itself request / application/ notice but the opposite party No. 2 has not taken any action to process the claim. Moreover, the opposite party No. 2 has received the premium of insurance but he has not disclosed in its written version that from whom he has got insured the mobile in question. The perusal of Bill Ex. C-2 shows that the opposite party No. 2 deducted the amount of Rs. 5,071.26 under the head of ‘Mobile Damage Protection…’. The opposite party No. 2 has miserably failed to prove on record that in which account the opposite party No. 2 has forwarded the premium amount and has also not mentioned in their written version that from whom, they have got insured the mobile in question. In the present case, the opposite party No. 2 has also not helped and disclosed the complainant about the insurance company. Due to above said act of the opposite party No. 2 the complainant has been harassing for a long time. Consequently, the opposite party No. 2 is liable for the insurance amount as the opposite party No. 2 has received the premium amount.
9 In view of above said discussion, the present complaint is allowed and the opposite party No. 2 is directed to pay Rs. 65,000/- to the complainant. The complainant has been harassed by the opposite party No. 2 unnecessarily for a long time. The complainant is also entitled to Rs 7,500/- as compensation on account of harassment and mental agony and Rs 5,000/- as litigation expenses. Opposite Party No. 2 is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
25.04.2024
