BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR
Complaint No.85 of 2018
Date of Instt. 01.03.2018 Date of Decision: 27.04.2018
Simranjit Kaur d/o Sh. Bhupinder Singh, R/o 44-B, K. P. Nagar, New Deol Nagar, Jalandhar.
..........Complainant
Versus
1. One Assist Consumer Solutions Pvt. Ltd., B-24, Manubharati, Azad Lane off SV Road, Andheri West, Mumbai 400058 through its Mg. Director.
2. One Assist Consumer Solutions Pvt. Ltd., C/o Underground Store, 707-708-709, Acme Plaza, Andheri- Kurla Road, Andheri East, Mumbai 400059 Phone: +912242983000, through its Mg. Director.
3. Underground Store, 375, Model Town, Jalandhar through its Prop/Partner.
4. M/s National Insurance Company, Head Office 3, Middle Town Street, Prafulla Chandra Sen Sarani, Kolkata, West Bengal 700071, through its Managing Director/Chairman as OP No.4.
5. M/s National Insurance Company, Branch Office, BMC Chowk, Jalandhar through its Managing Director/Chairman as OP No.5.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Raghav Bhalla, Adv. Counsel for the Complainant.
Sh. A. K. Gandhi, Adv. Counsel for the OPs No.1 & 2.
OP No.3 exparte.
Sh. J. L. Naggar, Adv. Counsel for the OPs No.4 & 5.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant on the averments that he had purchased a mobile phone with make of Apple 1 Phone X 64 GB and IMEI No.356723089605916 from OP no.3 vide cash memo no. G2710 dated 18.12.2017 for Rs.86,600/- and he also insured mobile phone with one time insurance premium of Rs.8300/- from OPs no.1 and 2 through OP no.3 on the same date i.e. 18.12.2017. OPs no.1 and 2 are service provider who insured phone from OPs no.4 and 5. On 27.12.2017 when he was in the area of Budh Bazar Gur Mandi Model Town Delhi, her mobile was stolen by pick-pocketer and matter was reported by her in the police station and FIR to this incident was got registered with police station Model Town North West Delhi bearing FIR No.NWD-MT-000904 under Section 379 IPC. She got her mobile phone registered on the website of OPs no.1 and 2 and was issued a membership ID No.10022433400. The complainant informed about the said incident to OPs no.1 and 2 through their customer care no.08080333333. She fulfilled all the formalities as required by OPs no.1 and 2 and OPs informed her that her claim will be decided in 48 hours. On 01.01.2018 the complainant again received intimation that her insurance claim had been rejected with the reason that theft of her mobile phone was under mysterious or unexplained reasons which is covered under exclusion no.1 of the insurance policy. The complainant was not informed of any condition in this regard when she purchased the said mobile. The complainant had to run from pillar to post to get her insurance claim. The complainant also served a legal notice dated 10.01.2018 upon OPs no.1 and 2 but of no use. The complainant suffered a loss of Rs.86,600/- as cost of mobile and Rs.8300/- as insurance claim as well as also suffered mental tension and harassment. Therefore, she had filed the present complaint and prayed that OPs be directed to pay insurance claim of mobile i.e. Rs.8600/- along with interest, Rs.1,00,000/- as compensation for mental tension and Rs.22,000/- as cost of litigation.
2. Upon notice, OPs no.1 and 2 appeared and filed their joint written reply and contested the complaint of the complainant by raising preliminary objections that complaint is false and frivolous. There is no deficiency in service or negligence on the part of OPs. The complaint is bad for non-joinder of necessary party. On merits, it was denied that the handset of the complainant got misplaced in the market. As per terms under the head ‘excluded perils’ to theft loss Clause 1 provides that “the insurer shall not be liable for loss or damage to the gadget due to mysterious circumstances/disappearance or unexplained reason.” On 01.01.2018, after verification, it was revealed that the mobile handset in quest lost in mysterious circumstances and accordingly rejected the claim under the said clause and said fact was duly intimated to the complainant. The repudiation of claim was proper, legal, valid and justified. Rest of the averments made by the complainant were denied by OPs no.1 and 2 and they prayed for dismissal of the complaint.
3. Notice sent to OP no.3 on 06.03.2018 served but none has appeared on behalf of OP no.3 despite service. As such OP no.3 is proceeded against exparte vide order dated 17.04.2018 passed by this Commission.
4. OPs no.4 and 5 appeared and filed their joint written reply and contested the claim of the complainant by raising preliminary objections that complaint is absolutely false and frivolous. The complainant has tried to take benefit of her own wrong. The claim of the complainant has rightly been repudiated on the specific ground that complainant bitterly failed to appropriate care and caution of the gadget which she got lost. On merits, the recitals of Exclusion Clause of the insurance contract having been entered into between the OP no.1 and OPs no.4 & 5 against the provisions and terms of the agreement. As per the contents and recitals of the complaint, the complainant herself is guilty of and has bitterly failed to take the appropriate care and caution her safety and protection of product alleged insured with OPs. No such document has either been supplied or placed on record by any of the parties to the complaint. Rest of the averments of the complainant was denied by OPs no.4 and 5 and they prayed for dismissal of the complaint.
5. We have perused written arguments filed by OPs and gone through the record on the file very carefully.
6. The complainant had purchased a mobile phone with Make of Apple 1 Phone X 64 GB and IMEI No.356723089605916 from OP no.3 vide cash memo no.G2710 dated 18.12.2017 for Rs.86,600/-. This fact is proved from copy of tax invoice no. G 2710 dated 18.12.2017 for Rs.86600.00. The complainant made request to OPs in this regard, this fact is clear from copy of email which is placed on record in which it has been specifically mentioned that “dear Simranjeet Kaur with reference to claim request no.2711545, all mandatory documents have been successfully uploaded. Pls follow 48 hrs to verify the documents and update on next step.” OPs no.1 and 2 rejected the claim of the complainant with remarks that “claim is not admissible under Exclusion 1 loss or damage to the gadget due to mysterious circumstances /disappearance or unexplained reasons. The complainant reported the matter to the police station, this fact is clear from copy of FIR dated 27.12.2017 which is placed on the record.
7. On the other hand, OPs no.4 and 5 relied upon affidavit of Dinesh Gupta Divisional Manager as Ex.OP4&5-A on the record. This witness stated that claim of the complainant has rightly been repudiated. The copy of insurance cover is Ex.OP-4&5/1 on the record. In this document theft & burglary or accidental damage are included. Ex.OP-4&5/2 is copy of insurance policy on the record, in this document the theft and damage are included under the policy.
8. From perusal of record, it is an admitted fact that the complainant had purchased a mobile phone X 64 GB from OP no.3 vide cash memo no. G2710 dated 18.12.2017 for Rs.86,600/- with one time insurance premium of Rs.8300/- from OPs no.1 and 2 through OP no.3. The complainant has produced on record tax invoice dated 18.12.2017, from perusal of this, it has proved that the complainant has purchased the mobile in question from OPs no.1 and 2 on 18.12.2017 and in this document, in column no.3. Warranty and service condition apply is specifically mentioned. That means, the warranty is applied in the mobile in question. In the document email on the record, wherein it has been specifically mentioned that “all mandatory documents have been successfully uploaded.” But OPs rejected the claim of the complainant on the ground that claim is not admissible under Exclusion Clause 1 loss or damage to the gadget due to mysterious circumstances.
9. Keeping in view the totality of the facts and circumstances of the case, it is clear that the rejection of the claim of the complainant by OPs is illegal and wrong. Neither any such exclusion clause was ever intimated to the complainant at the time of payment of premium by complainant nor mobile of complainant disappeared under any mysterious circumstances or unexplained reasons. The complainant has purchased the mobile in question on 18.12.2017 for Rs.86,600/- and the present complaint has been filed by her on 01.03.2018 within three months from the purchase of the mobile in question. Therefore, the warranty of the mobile in question at least one year approximately. The mobile in question during the warranty period, so OPs are liable to pay the claim to complainant. The OPs cannot wriggle out from its own terms and conditions, which were executed between the parties.
10. In the light of our above discussion, we allow the complaint of the complainant and OPs no.1 and 2 are directed to pay Rs.86,600/- as cost of the mobile in question or to replace the mobile make Apple I Phone X 64 GB with new one within 15 days from receipt of copy of this order. The complainant is also entitled Rs.7000/- as compensation for mental harassment including cost of litigation.
11. The compliance of the order be made within one month from receipt of copy of this order. This complaint could not be decided within stipulated time frame due to rush of work and spread of Covid-19.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after due compliance.
Announced in open Commission
27th of April 2021
Kuljit Singh
(President)
Jyotsna
(Member)
