DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BHIWANI.
CONSUMER COMPLAINT NO.47 of 2018
DATE OF INSTITUTION: - 19.03.2018
DATE OF ORDER: - 26.05.2023
Ashok Kumar son of Shri Harish Chander, House No. 1198, near Chruch, Shiv Colony, Tehsil & District Bhiwani.
……………Complainant.
VERSUS
- Subrat Pani Director One Assist Consumer Solution Pvt. Ltd. 707 ACME PLAZA, near Andheri Kulra Road Bing Cinema Andheri East Mumbai
City MH-400059. - Director National Insurance Company Limited 3 Midleton Street Prafula Sarani Sarni, Kolktta, West Bengal 700071.
- Manager, The New India Insurance Company Limited, opposite Chaudhry Bansi Lal Civil Hospital, Clock Tower, Bhiwani.
- Director, ECOM Courier Service, near Dev Electronics, Naya Bazar, Bhiwani.
- Manager, Airtel Postpaid office, opposite JB Gupta Hospital, meham gate, Bhiwani.
………….. Opposite Parties.
COMPLAINT U/S 12 & 13OF CONSUMER PROECTION ACT
BEFORE: Mrs. Saroj Bala Bohra, Presiding Member
Sh. D.M. Yadav, Member
Present:- Shri Suraj Chand Aggarwal, Advocate for complainant.
Shri Pardeep Bajar, Advocate for OP no. 1.
OP no. 2 given up.
Sh. Sunil Sharma, Advocate for OP no. 3.
Sh. Arun Samota, Advocate for OP no. 4.
OP no. 5 exparte.
ORDER:-
Saroj Bala Bohra, Presiding Member:
1. Brief facts of the case, as per complainant are that complainant had got its number 9053367777 merged in the postpaid connection from Airtel Company and the complainant had offered to get the mobile insurance free on taking the postpaid number from the company. On dated 26.5.2018, the complainant had got insured his Apple I Phone 7 plus vide IMEI no. 359160075806413 and the membership id of the insured mobile is 1002958736 worth Rs.40,000/- and the validity of the plan was fixed on 26.5.2019.
2. It is alleged that the said mobile which was damaged due to accident on 14.6.2018 at Bhiwani, which was immediately reported to Airtel Customer Care Call Center, which the detailed information about the damage done by the user to his mobile can be called Airtel call was given at the center. It is further alleged that the claim was booked by airtel company and my damaged mobile was checked by representative of One assist and broken damaged mobile was picked up by ECOM courier Service company.
3. It is further alleged that after pick up on 18.6.2018 the mobile was sent to the company which was informed by One Assist Insurance Company through mobile that your mobile found to be out of repair and that out of warranty we will not repair your mobile since it was a fictitious claim.
4. It is further alleged that the damaged mobile was thoroughly checked by One Assist Company representative was according to company rules, only then his pick up was done, but after getting the pickup done, the company retracted from its words and refused to repair the mobile. On dated 25.6.2018 airtel company informed me through email and my claims number was rejected and the claim request has been closed.
5. It is further alleged that the insurance policy which was provided by One Assist Company and when I contacted One Assist Company they said waiting 24 to 48 hours we are working on your claim and sorry for the inconvenience caused and soon you will be given a solution from our side, but the company had turned away from its words. I was asked to wait from time to time by Airtel company with the intention of cheating but finally on 25.6.2018, they cleared me by sending an email that your claim has been closed.
6. When I contacted the New India Insurance Company Limited they said that you are only dealing with airtel and you have no connection whatsoever with me while I am a customer of Airtel as well as New India Insurance company by whom the master policy no.99000046172480000008 certificate no.1002958736 etc. which was provided on 26.5.2018. It is alleged that airtel company has been cheated with the complainant because the customer was not told that we are getting your insurance done by One Assist Company through the New India Insurance Company while the role of other two companies is airtel company in writing was not provided to me and the information was kept hidden from me. The mobile phone of the complainant is still deposited in the head office of Airtel company on 2.7.2018 and the mobile was not repaired by the company and the consumer was denied the facilities provided. The complainant further alleged that due to the act and conduct of the respondents he has to suffer mental agony, physical harassment and financial losses. Therefore, the complainant claimed a sum of Rs.25,000/- as fine and replace the mobile with new one of same cost. Hence, it amounts to deficiency in service on the part of OPs and as such, he has to file the present complaint.
7. On appearance, OP no. 1 filed written statement alleging therein thatthis Hon’ble Forum has no jurisdiction to entertain the present complaint and there is no deficiency in service or negligence on the part of OP no. 1.It is submitted that One Assist is mere facilitator in registering and processing of claim with the insurance company with which the mobile handset of complainant was insured. It is submitted that the mobile handset in question of complainant was insured with New India Assurance Company Ltd. And the opposite party was only required to facilitate the claim of the complainant. It is further submitted that the liability of the opposite party was limited only to plan fees paid by the complainant. It is submitted that the mobile handset of complainant was sent to complainant on 26.6.2018 after informing the complainant about the rejection of claim.
Therefore, there is no deficiency in service on the part of OPno. 1. It is prayed that the complaint be dismissed.
8. On dated 20.8.2020 the complainant has given up OP no. 2 being unnecessary party.
9. On appearance, OP no. 3 filed written statement alleging therein that this Hon’ble Forum has no jurisdiction to take cognizance of the matter involved in the present complaint. It is submitted that complainant has no locus standi to file the present complaint nor the complainant had any cause of action to file and maintain the present complaint against the answering respondent. The complainant is estopped by his act and conduct from filing the present complaint against the answering respondent. It is further submitted that the complaint is bad for non joinder and mis joinder of necessary parties, as such the complaint is liable to be dismissed. It is further submitted that the complainant is not a consumer of the answering respondent because there is no relationship between the complainant and answering respondent of complainant. The complainant has concealed the true and material facts from the Hon’ble Forum.
10. The complainant never visited the office of answering respondent nor made any contact with the officials of the answering respondent and the alleged airtel mobile was not insured. The complainant never lodged any claim nor any complaint before the answering respondent. Therefore, there is no deficiency in service on the part of OP no. 3 and the complainant is not entitled to any relief as prayed for and the same is liable to be dismissed with heavy costs.
11. On appearance, OP no. 4 filed written statement alleging therein that the complaint filed against the answering respondent is liable to be dismissed based on the sole ground that the complaint relates to the repairing of the mobile phone and insurance claim of the repairing charges of mobile phone. The answering OP is neither a manufacturer nor a seller or packer of the impuged product and the role of the answering OP is confined to merely that of a ‘Courier Service Provider’ only. It is submitted that the OP is neither a necessary party nor a proper party and hence the name of the OP may be deleted from the array of parties. It is further submitted that the product in dispute has only been delivered by the answering OP who is only a courier service provider and is in no manner responsible for any type of deficiency in service. It is further submitted that there is no privity of contract between the complainant and the answering OP and the complaint filed by the complainant is not entitled for any of the reliefs prayed for and the complaint is liable to be dismissed against the answering OP who has unnecessarily been dragged into the litigation by the misjoinder of parties and is entitled to exemplary and compensatory costs of this litigation from the complainant.
12. The grievance of the complainant is that his mobile got damaged and his mobile did not repair properly and also insurance company is not releasing his claim for the charges of repairing the mobile and the answering respondent is not responsible for the procurement of the product, defect, insurance claim and repair. Therefore, there is no deficiency in service on the part of OP no. 4 and the complainant is not entitled to any relief as prayed for and the same is liable to be dismissed.
13. Notice sent to OP no. 5 under RC not received back either served or unserved. Hence OP no. 5 is hereby proceeded against exparte vide order dated 14.9.2010.
14. To prove its complaint, the complainant has tendered in evidence documents Annexure C1 to Annexure C4 and closed the evidence vide his separate statement dt. 03.12.2021.
15. Counsel for the OP no.1 tendered in evidence document as Annexure D-1 and closed the evidence vide his separate statement dt.22.03.2023. On the other hand, counsel for OP no. 3 tendered in evidence document Annexure R-1 and closed the evidence vide his separate statement dated 22.3.2023. The learned counsel for OP no. 4 tendered in evidence documents Annexure RW4/A and Annexure RW4/B and closed the evidence vide his separate statement dated 28.9.2022.
16. We have perused the written arguments filed on behalf of complainant. We have also heard the arguments of learned counsel for the parties and gone through the entire evidence placed on record by the parties carefully and minutely.
During the course of arguments, the learned counsel of complainant as well as learned counsel for OPs reiterated the contents of the complaint filed by the complainant as well as the replies filed by the respective OPs and further drawn the attention of this Forum/Commission towards the documents placed on record by the respective parties.
17. We have perused the documents placed on file very carefully and minutely. After hearing arguments and going through the entire case file and perusing the documents so placed on record very carefully and minutely , we have observed that in the present case, the complainant got his mobile phone insured with New India Insurance Company through OP no. 1. The mobile handset of the complainant got damaged due to accident on dated 14.6.2018. The grievance of the complainant is that he contacted the New India Insurance Company Limited they said that you are only dealing with airtel and you have no connection whatsoever with me while he is a customer of Airtel as well as New India Insurance Company which was provided on 26.5.2018. The contention of learned counsel for OP no. 1 is that the mobile handset of complainant was insured with New India Insurance Company and the insurance company was only required to facilitate the claim of complainant. The contention of OP no. 3 is that the complainant is not a consumer of the answering respondent because there is no relationship between the complainant and answering respondent of complainant and the complainant never visited the office of answering respondent nor made any contact with the officials. The contention of OP no. 4 is that answering respondent is neither a manufacturer nor a seller or packer of the impugned product and the role of the answering OP is confined to merely that of a “Courier Service Provider’ only and there is no privity of contract between the complainant and the answering OP. Copy of documents Annexure C-1 to Annexure C-4 placed on record by the complainant. Hence, the mobile phone has been insured by OP no. 3 and he is liable to pay the insured amount to the complainant. There is no deficiency in service on the part of OPs no. 1, 2, 4 & 5 and they are not liable for the same.
18. The sum insured of the mobile phone was Rs.40,000/-. As per our opinion, we have deducting Rs.4,000/- on account of 10% depreciation. The OP no. 3 is liable to pay a sum of Rs.36,000/- of the insured mobile & OPs no. 1, 2, 4 & 5 are not liable to pay the same. In view of the facts and circumstances of the complaint, we hereby allow the complaint and direct the OP no. 3 to pay a sum of Rs.36,000/- (Rupees Thirty Six thousand only) as amount of insured mobile alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 12.7.2018 till its realization and OP no. 3 also pay a sum of Rs.5,000 (Rupees five thousand only) as compensation on account of deficiency in service and Rs.5,000/- (Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision.
Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Commission.
Dated: - 26.05.2023
(D.M.Yadav) (Saroj Bala Bohra)
Member. Presiding Member,
District Consumer Disputes
Redressal Commission, Bhiwani.
