Chandigarh

DF-II

CC/685/2020

Jaswinder Singh - Complainant(s)

Versus

One Assist - Opp.Party(s)

Adv. Hardik Ahluwalia

18 Dec 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	CC/685/2020
Date of Institution	:	16/12/2020
Date of Decision	:	18/12/2024

 

Jasminder Singh, aged 55 years, son of Sh. Ram Singh, resident of Village Parchh, District Sahibzada Ajit Singh Nagar (Mohali).

                                ...  Complainant

V E R S U S

1.One Assist Consumer Solutions Pvt. Ltd., 3^rd Floor, Fleet House, Next to Marol Naka Metro Station, Marol Naka, Andheri Kurla Road, Mumbai-400059.

2.Tresor Systems Private Limited, SCO 449-450, Ground Floor, Sector 35-C, Chandigarh.

…. Opposite Parties

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU	PRESIDENT
	SHRI BRIJ MOHAN SHARMA	MEMBER

 

ARGUED BY:
	Sh. Hardik Ahluwalia, Counsel for complainant
	Sh. Gaurav Bhardwaj, Advocate, Proxy for Sh. S.R. Bansal, Counsel for OP-1
	Sh. Ankit Kumar, Advocate, Proxy for Sh. Manjinder Kumar, Counsel for OP-2

       

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.        The complainant has filed the present consumer complaint alleging that on 12.2.2020 he purchased an Apple Iphone 11 Model for ₹63,400/- from OP-2 and got the same insured from OP-1 for one year i.e. from 9.6.2020 to 8.6.2021 by paying premium of ₹5,799/-. After around 25 days, the said Iphone accidentally got slipped from the pocket of his son when he was driving a tractor and fell in the fields and the complainant’s bike coming from behind ran over it due to which it suffered dent and water from the fields entered inside. On 4.7.2020, complainant apprised OP-1 through online portal about the accidental damage but it rejected the complainant’s request on the ground of improper handling.  Thereafter, the complainant also filed grievance at National Consumer Helpline portal of Govt. of India and Ministry of Consumer Affairs but the claim/complaint was again rejected on 3.9.2020.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, complainant has filed the instant consumer complaint for acceptance of the same.
2.        In its written version OP-1 admitted that the Iphone in question of the complainant was insured during the relevant period and further that the complainant raised claim on 4.7.2020 and uploaded the documents. It is averred that the claim was processed and during process, it was revealed that the same got damaged due to improper handling and negligence of the complainant and the same did not fall in the claim category.  It was the duty of the complainant to take all reasonable precaution for safety and protection of the mobile handset in question. The remaining allegations have been denied being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-1 prayed for dismissal of the consumer complaint.
3.        In its written version OP-2 admitted that the Iphone in question was purchased by the complainant from it. However, it is averred that it is not obligated to the complainant for any insurance claim or any compensation simply because it is not the insurer.  It is further averred that OP-1 can neither be burdened with defect in goods or any unfair trade practice or even failure to observe duty of care.  The remaining allegations have been denied being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-1 prayed for dismissal of the consumer complaint.
4.        Complainant did not file replication despite grant of sufficient opportunity. 
5.        Parties led evidence in support their case.
6.        We have heard the learned Counsel for the parties and have gone through the documents on record.
7.        It is observed from the record that the Iphone in question was duly insured with OP-1 for the period from 9.6.2020 to 8.6.2021 for sum insured of ₹63,400/-, as is also evident from Annexure C-5/Annexure OP1/B. 
8.        The case of the complainant is that the aforesaid Iphone was damaged after the same slipped from the pocket of his son while he was driving a tractor and came under the tyre of the bike driven by the complainant.  However, the claim lodged by the complainant was rejected by OP-1 on account of negligence and improper handling of the mobile phone by the complainant by relying upon clause 40 of the terms and conditions (Annexure OP1/A) which reads as under :-

                        “The Insurer shall not be liable for :

xxx           xxx                   xxx

40. Improper handling of the device which means negligence or due care not taken by the user in handling the device. Improper handling means negligence or carelessness solely on part of the user (in the absence of any external causes) while handling the device.”

 

Pertinently, OP-1 has not been able to clearly specify as to how the complainant was negligent and careless in the handling of the device or what due care was not taken by him while handling the same.  It is settled law that one who asserts must prove and since it is OP-1 who has asserted that the complainant was negligent and careless in handling of the device, burden to prove the same lies on its shoulders only.  Here we are fortified by the judgment of the Hon’ble Apex Court in Mahakali Sujatha Vs.  Branch Manager, Future Generali India Life Insurance Co. Ltd. & Anr., II (2024) CPJ 66 (SC) and the relevant portion of the same reads as under:-

“50. …….. The cardinal principle of burden of proof in the law of evidence is that “he who asserts must prove”, which means that if the respondents herein had asserted that the insured had already taken fifteen more policies, then it was incumbent on them to prove this fact by leading necessary evidence. The onus cannot be shifted on the appellant to deal with issues that have merely been alleged by the respondents, without producing any evidence to support that allegation………. A fact has to be duly proved as per the Evidence Act, 1872 and the burden to prove a fact rests upon the person asserting such a fact………..”

 

9.        Not only this, OP-1 while rejecting the claim of the complainant has very conveniently overlooked the definition of accidental damage/liquid damage  as provided in the terms & conditions of policy (Annexure OP1/A at internal page 4) annexed by it and the relevant portion of the same is reproduced as under :-

“Accidental damage / Liquid damage:

xxx                   xxx                   xxx

Accidental Damage mean damage to the Insured Product due to unintentional drop or collision of the Insured Product or any object falling on the Insured Product or due to accidental external means.”

 

In view of the above, when it is unequivocally borne out from the record that the Iphone in question of the complainant also slipped from the pocket of his son and got damaged when it was run over by the tyre of the bike driven by the complainant, it is clear that the damage to the same was due to unintentional drop or collision or any object falling on the same or due to accidental external means and the claim was thus fully covered under the terms and conditions of the policy. Hence, it is safe to hold that the act of OP-1/insurer in rejecting/repudiating the claim of the complainant certainly amounts to deficiency in service and the present consumer complaint deserves to succeed.

10.        In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed and OP-1 is directed as under :-

1. to pay the sum insured i.e. ₹63,400/- to the complainant alongwith interest @6% per annum from the date of institution of the present consumer complaint i.e. 16.12.2020 till the date of actual realization. The complainant shall, however, return the damaged Iphone in question to OP-1. 
2. to also pay lump sum compensation of ₹10,000/- to the complainant towards the harassment caused to him as well as litigation expenses.

11.        This order be complied with by OP-1 within 60 days from the date of receipt of its certified copy.
12.        Since no deficiency in service or unfair trade practice has been proved against OP-2, the consumer complaint against it stands dismissed with no order as to costs. 
13.        The pending application(s), if any, stands disposed of accordingly.
14.        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

 

ANNOUNCED 18/12/2024 hg	[AMRINDER SINGH SIDHU] PRESIDENT
	[BRIJ MOHAN SHARMA] MEMBER