DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 18/2018

No. DC/ Central/

vs.

Coram:       Ms. Rekha Rani, President

                    Shri Vyas Muni Rai, Member

                   Ms. Shahina, Member (Female)

ORDER

Shri Vyas Muni Rai, Member

1. Sh. Mayank Aggarwal (in short the complainant) has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 against 1. OneAssist Consumer Solutions Pvt. Ltd. (in short OP1) and 2. Tresor System Pvt. Ltd. (in short OP2). In the said complaint, the complainant, inter alia, has stated that on 08.12.2016, he had purchased an I Phone 7 Plus at price of Rs. 82,000/- and has also annexed the invoice to this effect. It is further the case of the complainant that mobile handset under reference was insured with OP1 for coverage of theft, loss or damage on 21.12.2016 vide relationship no. 1571695 and ID 101074936 which was valid for the period from 22.11.2016 to 21.11.2017 and document to this effect has been annexed along with complaint.
2. It is further the case of complainant that on 13.11.2017 the mobile handset under reference was stolen from Vande Matram Road, Karol Bagh while he was boarding the cab and the FIR to the local Police Station was lodged on the same day (copy of the FIR is on record). He has further alleged that the said incident was immediately brought to the notice of the OP and despite repeated follow-up there was no response from the OP. The claim of the complainant was repudiated vide letter dated 22.11.2017 stating therein, inter alia, ‘… our insurance team have reviewed your claim as per the description and images uploaded by you and determined the reason as loss or damage caused by loss or damage to the gadget due to mysterious circumstances/ disappearance or unexplained reasons i.e. we could not find actual cause to the theft of your handset. I regret to inform you that we are unable to process your claim further…’.
3. Further, perusal of the record shows that the complainant had moved an application before the Commission stating therein that he has no grievance against the OP2 and no relief is claimed again him, under the circumstances it is prayed that name of OP2 may kindly be deleted from arrary of parties on filing of the aforesaid application this Commission vide its proceeding dated 04.05.2018 deleted the name of OP2 from the array of parties.
4. OP1 has filed the reply to the aforesaid complaint wherein in para 4 under the head of “Preliminary Objections” it has taken the stand that there is no deficiency in service on its part and this Forum has no jurisdiction to entertain the complaint. OP1 has further stated that the claim was rejected as per standard terms and conditions applicable to the mobile handset in question which was insured. OP1 has further stated that it was merely a service provider which arranged the insurance of the mobile handset in question of the complainant through National Insurance Company Ltd. and thus acted as the facilitator in registering and processing of the claim with the Insurance Company. It has also taken the stand that complaint is bad for non-joinder of necessary party. OP1 has further stated in its reply that National Insurance Company is to settle the claim of the complainant and not the OP1.
5. OP1 has also reiterated its excluded perils clause. Wherein, inter alia, it is mentioned that the Insurance shall not be liable for:-

1. Loss or damage to the gadget due to mysterious circumstances/ disappearance or unexplained reasons;
2. Loss or gadget resulting from/ caused or theft, attempted theft from unlocked vehicle or room.

OP1 has also alleged that the mobile handset in question was not stolen but snatched.

6. We have gone carefully through the documents submitted by the parties on record. We have also gone through the Written Arguments and Affidavits for Evidence submitted by the parties wherein no new material facts have surfaced except what have been mentioned in thebody of the complaint and the reply thereof filed by OP1.
7. At the outset, we fail to lay our fingers on any document/ terms and conditions of the policy submitted by OP1 on record on behalf of National Insurance Company nor there is any indication on record about details/ terms and conditions of the policy or addresses related to National Insurance Company as OP1 has submitted in its reply and other documents that it is the National Insurance Company Ltd. which is necessary party to process the claim of the complainant. If that is so, what prevented OP1 to disclose such details at the time of insuring the gadget under reference and also in not supplying the terms and conditions of the policy maintained by National Insurance Company.

8. Per contra, we find on record Annexure C-2 filed by the complainant while filing the complaint wherein, there is a document in the name of ‘Welcome to the World of OneAssist!’ in the said document which is understandably the document of OP1 it is mentioned as under:-

• Insured Name : Mayank Aggarwal
• OneAssist Relationship Number : 1571695
• OneAssist Membership ID : 1001074936
• Plan Name : MA Apple Total Protection 62k
• Validity : 22/12/2016 to 21/12/2017
• Sum Insured of Device : 82000.00
• Registered Mobile No. : 9971649090
• IMEI No./ Serial No. : 359160074451872
• Make & Model : Apple I Phone 7 Plus 128GB
• Password : Create Password

From the perusal of the aforesaid document of OP1, it seems that insurer is OP1 and it is for the OP1 to take the matter with the National Insurance Company of which the OP1 is taking the shelter that National Insurance Company was not impleaded being necessary party otherwise too, if we take this stand of OP1 for the sake of argument then what stopped OP1 to take up the claim issue with the National Insurance Company because it has been the stand of OP1 throughout that it is only a facilitator in processing the claim of the complainant. Stand of the OP1 seems to deny the claim of the complainant on the flimsy ground, though, OP1 is third party acting for National Insurance Co. and is responsible for any omission or Commission on behalf of National Insurance Company.

9. It is evident from record that OP1 has been acting as insurer since beginning and has also supplied document (Supra) to this effect to the complainant. It would also be pertinent to record here that if the OP1 is only facilitator in processing the claim of the complainant and National Insurance Company limited being the necessary party what prevented OP1 to move necessary application before this Commission to implead National Insurance Company Ltd. as necessary party.

To travel further, if OP1 is not concerned to honor the claim of the complainant then what was the reason to issue repudiation letter dated 22.11.2017 on its behalf. Further, stand of OP1 that mobile handset was not stolen but it was snatched. To counter this, complainant in para no. 7 of the complaint has stated that he tried to explain to OP that word stolen has been mistakenly written as snatched in the FIR but insurer was not satisfied.

10. To move ahead, we have also paid our attention to the contents of the rejoinder filed on behalf of complainant, wherein, in Para 5 it has been stated that OP1 has not provided address of the insurer i.e. National Insurance Company Ltd. In the terms and conditions provided, OP1 has mentioned TATA AIG is insured provider and now they are giving name of National Insurance without disclosing their address which shows their stoic  attitude towards customers. It has been further stated that even the claim repudiation letter was issued by OP1 and National Insurance was nowhere in the picture. The complainant has also stated in Para 8 of the rejoinder that the conditions mentioned in the exclusion clause are vague. Every theft is due to mysterious circumstances. Secondly, the loss did not occur in unlocked vehicle. From the above stand of the complainant in his rejoinder it also comes to our mind that theft is committed generally in mysterious circumstances and not in broad day light. Therefore, the word ‘mysterious circumstances’ used in the exclusion clause seems to be vague and only a cover up exercise. It is general principle of Law that one can not be permitted to do any act indirectly what is prohibited to be done directely.
11. In view of discussion and deliberations above, we find deficiency on the part of the OP1 in processing the claim of complainant and order accordingly as under:-

1. OP is directed to pay cost of the mobile handset i.e. Rs. 82,000/- with 6% simple interest per annum from the date of filing the complaint till the date of realization;
2. Rs. 5,000/- towards compensation/ damages;
3. No order to cost.
   12. OP1 is directed to pay above awarded amount within 30 days from the date of receipt of this order.
   13. Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced on this 16^th August  of 2022.