Complainant Jugraj Singh vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the opposite parties to pay Rs.72,000/- as compensation as well as Rs.50,000/- for pain and agony or any other relief which requires deem fit in his favour.
2. The case of the complainant in brief is that he purchased i Phone 6s 64GB-Rose Gold 353008077917524 for Rs.72,000/- from opposite party no.3 with the mobile Insurance Assist platinum Max as assure on 2.11.2015. The opposite parties no.1 and 3 propagated and convinced to get Mobile insurance from the opposite party National Insurance Company which was arranged and managed by the opposite party under the name and style Platinum Max Assured having its ID No.002001 kit ID No.022001 MP 246078 vide application No.MP 246078 Voucher code No.0465450779246078 after paying the amount of Rs.4499 by him at the time of purchased i Phone. The opposite parties no.1 and 3 acted as assistant of the Insurance Company wander being agent of the remainder as well as opposite party no.2 acted as assigned the insurance company and thus opposite party no.2 are equally liable for the compensation claimed jointly and severally. He has further pleaded that the purchased iphone missed and lost of which he registered report dated 24.02.2016 to the concerned authority and informed to the opposite party no.3. The required documents were provided to the insurance company were sent in original that i.e. Mobile Bill, Police report etc. through courier on 16.4.2016 on 16.5.2016 respectively. He approached many a times telephonically for the compensation claimed. Except ones or two opposite party never attend and replied consequently after getting reasonable and vioable time the present complaint and 1.7.2016 claim repudiated. Hence this complaint.
3. Notice issued to the opposite parties. Opposite part no.1 appeared through its counsel and filed its written version taking the preliminary objections that the complaint is false, frivolous, vexatious and abuse of the process of law; the present complaint does not disclose any cause of action against the opposite party no.1, this Hon’ble Forum has no jurisdiction to entertain the present complaint and the present complaint is not maintainable by virtue of Section 8 of the Arbitration and Conciliation Act, 1996. On merits, it was submitted that under the insurance cover, the liability of the opposite party no.1 was limited to the plan fee and not beyond it. The opposite party no.1 was only to facilitate the arrangement entered by the complainant with the insurance company regarding registering and processing the claim with respect to “iphone Rose Gold”. It has been next submitted that due to negligence of the complainant the “iphone Rose Gold” got lost and for which the complainant himself is liable and therefore not entitled for any benefit under the insurance cover. The rejection of the claim of the complainant was proper legal, valid and justified. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Opposite party no.2 appeared through its counsel and filed its written reply taking the preliminary objections that the complaint is not maintainable and the complaint is absolutely false, frivolous. On merits, it was submitted that opposite party no.2 is never party to the alleged insurance contract alleged to be executed between the complainant and opposite party no.1 and 3. No such alleged Insurance policy of i phone under the name and style of Platinum Max. Assured was issued by the opposite party. The complaint filed by the complainant is not legally maintainable against opposite party and is liable to be dismissed, as the complainant has failed to provide copy of Insurance Policy of alleged i Phone and attempted to misguide and mislead the Hon’ble Forum and as such the complaint is liable to be dismissed on this ground alone.
5. Opposite party no.3 appeared through its counsel and filed its written reply taking the preliminary objections that the present complaint is legally not maintainable against the opposite party as there is no privity of contract between the same; the present complaint is bad for non joinder of necessary parties and the complaint is not maintainable. On merits, it was submitted that the complainant had purchased iPhone 6S 64GB-Rose Gold for a consideration of Rs.72,000/- from the opposite party. It is very costly and the complainant had got insured the same from opposite party no.2 with his free will and prudence for a consideration of Rs.4499/- on 2.1.2015. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
6. Complainant tendered into evidence his own affidavit Ex.C-I along with the other documents exhibited as Ex.C2 to Ex C18 and closed the evidence.
7. On the other hand, counsel for the opposite party no.1 tendered into evidence affidavit of Shilpa Desai Ex.OP1/1, alongwith other documents Ex.OP-1/2 to Ex.OP-1/4 and closed the evidence.
8. Sh.Parveen Chadha Branch Manager of opposite party no.2 tendered into evidence his own affidavit Ex.OP-2/1 and closed the evidence.
9. Sh.Ganesh Kapoor Store Manager of opposite party no.3 tendered into evidence his own affidavit Ex.OP-3/1 and closed the evidence.
10. We have carefully examined the documents/evidence produced on record (along with the scope of ‘adverse inference’ for that ignored to be produced) to support/ prove their respective ‘claims’ as pleaded by the present litigants in the light of the arguments as put forth by their learned counsels, while adjudicating the present complaint. We find that the purchase, insurance, theft/loss (missing) and filing of its subsequent insurance claim for refund/reimbursement by the complainant for his i-Phone Mobile Device stands duly admitted by the OP1 Facilitator and the OP3 Vendor but its ‘insurance’ has been somehow vehemently refused by the OP2 insurers vide (its written reply) affidavit Ex.OP2/1.
11. We further find that the OP1 facilitator while confirming (deposing) the factum of insurance with the OP2 insurers vide its written statement (affidavit Ex.OP1/1) has also raised its objections/pleadings on their (OP2) behalf on the technicalities pertaining to ‘theft’ in the field of ‘insurance’ vide its Terms and Conditions produced here as Ex.OP1/2. Moreover, the OP2 Insurers’ name stands distinguishably printed/pasted on the Device Hand-out Print as: ‘Insurance cover is arranged by “National Insurance Company Ltd.”; and thus it (OP2) cannot escape its liability by a simple denial sans a cogent evidence in support of the same. Similarly, the pleadings by the OP1 facilitator on behalf of the OP2 insurers cannot be legally considered/ evaluated in the absence of the requisite authority by them (OP2 insurers) and at the face of their point blank ‘denial’ sans evidence. Further, the invoice Ex.C4 dated 02.11.2016 by the OP3 Vendor exhibits the mobile cost as: Rs.72,000/- and Rs.4,499/- as cost of insurance duly collected and thus the complainant is entitled to be compensated for the loss incurred to him as a result of theft/ loss of the device.
12. We also find that the complainant has duly proved the contents of his complaint including the factum of theft/loss of the mobile device; through his produced documents (Ex.C1 to Ex.C18) as duly exhibited here on records of the instant proceedings. Thus, we find that the impugned repudiation (Ex.C17) of the instant insurance claim at the hands of the OP insurers certainly infringes the consumer rights of the complainant all the more so at the face of the OP2 Insurers’ report (Ex.C5 to Ex.C7) determining the same (insurance claim) to be genuine. Presently, we find that the OP insurers have not been able to justify the impugned ‘claim-repudiation’ and thus we hold the titled opposite parties guilty of ‘deficiency in service’ and ‘unfair trade practices’ etc.
13. In the light of the all above, we partly accept the present complaint and thus ORDER the OP Insurers to pay the impugned claim in full i.e., to the optimum insured value of the insured Mobile Device (under the related Policy) to the complainant within 30 days of the receipt of the copy of these orders along with Rs 5,000/- as compensation besides Rs 3,000/- as cost of litigation, otherwise the aggregate award amount shall attract interest @9% PA from the date of filing of the complaint till actually paid.
14. Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
September 13, 2017 Member
*MK*
