Chandigarh

DF-II

CC/374/2018

Ravinder Kaur - Complainant(s)

Versus

ONEASSIST CONSUMER SOLUTIONS PVT LTD. - Opp.Party(s)

Adv. Nitish K Vasudeva & Adv. Sagina Walyat

03 Sep 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	374/2018
Date of Institution	:	04.07.2018
Date of Decision	:	03.09.2019

 

                                       

                                               

Ravinder Kaur d/o Sh.Surinder Singh r/o # 288, VPO Badheri, Sector 41-D, Chandigarh -160036.

                                ...  Complainant.

Versus

1. One Assist Customer Solutions Pvt. Ltd., having its Registered Office :-B-24, Manubharti, Azad Lane, OFF SV Road, Andheri(W), Mumbai-400058 through its Managing Director.
2. Managing Director, One Assist Customer Solutions Pvt. Ltd., having its Registered Office :-B-24, Manubharti, Azad Lane, OFF SV Road, Andheri(W), Mumbai-400058.
3. The National Insurance Co. Ltd., Plot No.14, 5^th Floor, Royal Insurance Building, J Tata Road, Church Gate Mumbai-400020 through its Managing Director.
4. Currents Technology Retail (I) Ltd., SCO 449-450, Sector 35-C, Chandigarh-160022 through its Proprietor.

…. Opposite Parties.

 

BEFORE: SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

              SHRI RAVINDER SINGH, MEMBER.

 

Argued by:      

 

Sh.Nitish K.Vasudeva, Adv. for the complainant

Sh.S.R.Bansal, Advocate for OPs No.1 and 2.

Sh.Nitin Gupta, Adv. for OP No.3

None for OP No.4    

       

 

 

 

 

PER RAJAN DEWAN, PRESIDENT

1.         Succinctly put, the complainant purchased a mobile phone make Apple iPhone 7 Gold 32 GB vide Invoice dated 06.01.2017 for Rs.60,000/-. She also got the mobile insured with OP No.1 through its agent by paying Rs.5999/- through her credit card against which Voucher No.0157415473635446 was issued wherein it was mentioned that the insurance policy was valid for 365 days from the date of its issuance and the risk of theft was also covered.  It has further been averred that on 05.08.2017, she woke up at 4.00 a.m. and found that her mobile phone was not at the place where it was put at night before she slept. When she came out of her room, she found that the door of her room as well as main gate of her house was opened, which were locked at the night. According to the complainant, someone had entered the house at night and stolen the mobile phones.  Subsequently, she lodged the complaint with the Police Station Sector 39, Chandigarh. The claim was lodged as “Device Claim-Service Request #2224325”. However, the OP vide e-mail dated 04.09.2017 declined the legible claim on the ground that the claim was not admissible under the terms and conditions of the Insurance Policy.  It has further been averred that no willful negligence has been committed by her in causing loss of the mobile handset and the OP had illegally declined the claim. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the complainant has filed the instant complaint.
2.         In their written statement, OPs No.1 and 2 have pleaded that they were only required to facilitate the complainant in registering and processing the claim with OP No.3. It was the duty of OP No.3 to settle the insurance claim.  It has further been pleaded that the complainant raised the theft claim on 06.08.2017 with respect to the mobile phone in question and after verification of the documents, the same were sent to the Insurance Company on 09.08.2017 for its approval. It has further been pleaded that the Insurance Company rejected the claim under the exclusion clauses of the terms and conditions “Loss or damage caused by willful negligence, improper handling (no proper care of handset has been taken by insured to safeguard the property)”.   It has further been pleaded that the complainant was required to take all reasonable precautions for the safety and protection of the insured gadget at all times as if the gadget was un-insured.  The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
3.         In its separate written statement, OP No.3 has stated that the claim was not maintainable under the terms and conditions of the Insurance Policy. It has further been pleaded that the complainant has no explanation for loss of the mobile phone and it was a case of disappearance and willful negligence of the insurance which was not covered under the Insurance Policy.  It has further been pleaded that as per policy exclusion clauses, the loss or damage due to mysterious circumstances/disappearance or unexplained reasons, willful negligence (no proper care of handset has been taken by insured to safeguard the property) was not covered. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
4.         In its written statement, OP No.4 has pleaded that the complainant with an ulterior motive to harass it had impleaded it as party in the complaint.  It has further been pleaded that it does not provide any insurance services for the mobile handsets and the complainant out of her own free will had insured the mobile phone with OP No.1.  It has further been pleaded that the entire allegations in the complaint are with respect to the insurance claim in respect of iPhone.  Remaining allegations have been denied being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
5.         We have heard the arguments advanced by both sides and gone through the documentary evidence on record.
6.         After going through the rival pleadings of the parties and the documentary evidence on record, we are of the considered view that the complaint is liable to be dismissed for the reasons stated hereinafter. The theft of the mobile phone in question allegedly took place from the house of the complainant without breaking open the locks.  It is also apt to mention here that no other household item except the alleged mobile phones was stolen from the house, which is highly unbelievable. Besides this, there was no forcible entry in the house of the complainant for committing the theft of the mobile phones. The complainant has also failed to give any justifiable explanation as to how the theft of the mobile phones in question had taken place from her house.  We have, thus, no hesitation in our mind in concluding that there is violation of exclusion clauses of the Insurance Policy as the loss or damage due to mysterious circumstances/disappearance or unexplained reasons, willful negligence (no proper care of handset has been taken by insured to safeguard the property) was not covered.   Had the complainant taken due proper care and necessary steps to safeguard her property then the alleged theft of the mobile phones could not have taken place.
7.         It is well settled principle of law that the Courts/Consumer Fora/Tribunals cannot grant any relief to any of the parties beyond the terms and conditions of the policy as has been held by the Hon’ble Supreme Court of India in case cited as Suraj Mal Ram Niwas Oil Mills (P) Ltd. Versus United India Insurance Co. Ltd and another, 2011 CTJ 11 (Supreme Court) (CP) wherein the Division Bench of the Hon’ble Apex Court consisting of Hon’ble Mr. Justice D.K. Jain and Hon’ble Mr. Justice T.S. Thakur, held that:-

“22.          Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity………..”

“24.          Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount important, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.”

8.         Keeping in view the principle of law settled in the aforesaid judgment (supra) and the terms and conditions of the Insurance Policy in question, we are of the considered view that the claim of the complainant was rightly rejected by the Insurance Company after its due application of mind vide e-mail dated 04.09.2017 as the loss of the mobile phone in question was occurred due to the negligence of the complainant herself.
9.         In view of the above discussion, finding the complaint to be devoid of any merit, the same is hereby dismissed with no order as to costs.
10.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

03/09/2019

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER