BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

Complaint No.244 of 2016.

Date of Instt.:19.09.2016.

Date of Decision: 14.06.2017.

Anil Miglani son of Shri Vinod Miglani resident of Palika Bazar, Tehsil & District, Fatehabad.

...Complainant

     Versus

1. M/s R.K.Stickers and Mobile Shop No.14, Palika Bazar Fatehabad Tehsil & District Fatehabad through its proprietor.

2. Mr.Avinash Thakur, Claims Manager, Ssk Infotech Private Limited Plot No.521, Udyog Vihar, Phase-5, Gurgaon (Haryana)-122016, Ph.No.0124-4280703.

2.Ssk Private Limited 7-Akshaya Complex, Office Dhole Patil Road, Pune-411001 through its Manager/Director, Contact No.02040131000.

..Opposite Parties.

Before:       Sh.R.S.Panghal, Presiding Member.                 

                   Smt. Ansuya Bishnoi, Member.

Present:       Sh.Sanjeev Rang, Advocate for complainant.

                   Sh.Raj Kumar Godara, Advocate for OPs No.2 & 3.

                   OP No.1 exparte.

ORDER

                   The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs) with the averments that he had purchased a mobile Samsung Galaxy E-5 bearing IMEI No.358271065300217 & 3582720665300215 for a sum of Rs.14,900/- from OP No.1 vide Invoice No.2008 dated 19.09.2015. The mobile in question was insured with OP Nos.2 & 3 through OP No.1 vide coupon scratch code No.83320556 for a period of one year and the complainant had paid Rs.1199/- as premium thereof. It has been further averred that on 14.08.2016 when the complainant was using the handset then all of a sudden it fell down on the surface and got damaged. The complainant intimated about the incident to the OP No.1 where it asked that the mobile phone is insured and it will either be replaced or the cost thereof would be refunded but it delayed the matter on one pretext or the other. There is deficiency in services and unfair trade practice on the part of the OPs. Hence, this complaint. In evidence, the complainant has tendered his affidavit as Annexure C1W1/A and documents Annexure C1 to Annexure C11.

2.                On notice, OP Nos.2 & 3 appeared and contested the complaint of the complainant by filing joint reply wherein it has taken several preliminary objections such as locus standi, cause of action, estoppal, maintainability, non-joinder of necessary parties as the insurance scheme was facilitated by Leehan Retails Private Limited, therefore, the complainant was having a contract with Leehan Retails Private Limited and had no concern with OP Nos. 1 & 2.  It has been further submitted that the complainant had intimated about the incident on 15.08.2016 with description that he was riding his bike then all of a sudden one another bike came and dashed in his bike, therefore, the he along with mobile fell on the road and the handset got damaged.  It has been further submitted that after intimation about the incident CIN was garneted but the customer did not provide the requisite documents. The OP NOs. 2 & 3 only provide marketing facility and have no concern with the insurance. Other pleas made in the complaint have been controverted and prayer for the dismissal of the complaint has been made. OP No. 1 did not appear before this Forum despite notice, therefore, it was proceeded against exparte. In evidence, the OP Nos. 2 & 3 have tendered affidavit of Sh.Amar Deep Malik Annexure RW1/A besides documents as Annexure R1 & Annexure R2.

3.                We have heard the complainant and learned counsel for OP Nos. 1 & 2 and have gone through the case file carefully.

4.                Fact regarding purchasing of hand set from OP No.1 (Annexure C1) duly insured by OP Nos.2 & 3 (Annexure C5) is not disputed. The complainant has come with the plea that the mobile phone got broken during the subsistence of insurance period, which was valid for one year, but the Ops did not indemnify the loss suffered by him.  The sole ground of the OP Nos.2 & 3 is that the complainant had contract with M/s Leeann Retails Pvt. Limited (Syska Gadjet Secure) but it has not been made a party to the present complaint, therefore, present complaint is bad for mis-joinder and non-joinder of necessary party because the Op Nos. 1 & 2 have no concern with the said M/s Leehan Retails Pvt. Limited.  The complainant has specifically mentioned in his complaint the Ops have not redressed his grievance and have been failed to indemnify the loss which suffered during the subsistence of the policy. Annexure C11 clearly depicts that the handset was accidental physical damage but the insurance company had denied to honour to claim on the ground that claim does not meet eligibility criteria.  The insurance company has not produced any evidence to show that what criteria has not been fulfilled by the complainant and by which mode the complainant had been intimated to fulfill the criteria. It is worthwhile to mention here that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon’ble Apex Court in their judgements from time to time and is aimed at providing for better protection of the interests of the consumers as defined in the preamble to the Act itself but despite that the insurance companies are having tendencies to avoid the genuine claims on one pretext or the other and this is main reason of increasing of litigation between the insured and insurance companies.  The ground taken by the Op Nos. 2 & 3 that it had no contract of insurance of mobile with the complainant and M/s Leehan Retails Pvt. Limited is the facilitator of the mobile insurance facilities but it has not been made as a party to the complainant, therefore, present complaint is bad for mis-joinder and non-joinder of necessary party is not tenable because (Annexure C4) coupon scratch card was issued by OP Nos. 2 & 3 and it is also not disputed that premium was paid to them by the complainant, therefore, at this stage it cannot avoid its liability by stating that M/s Leehan Retails Pvt. Limited is solely responsible for the mobile insurance. There is nothing on the file to show that the handset is fully damaged and not repairable because in Annexure 10 it has been clearly mentioned that the display of the phone is damaged and this fact is also mentioned in Annexure C6. The complainant has been able to prove his case against Op Nos. 2 &3, therefore, complaint against Op No.1 stands dismissed.

5.                          Keeping in view the above facts and circumstances, present complaint is hereby allowed with a direction to the Ops No.2 & 3 either to get the display of the phone replaced or to make the payment thereof. The OP Nos. 2 & 3 are further directed to pay Rs.2,000/- to the complainant on account of harassment, mental agony and cost of litigation etc. This order should be complied within a period of 30 days from the date of receipt of this order.  Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.

Announced in open Forum.

Dated: 14.06.2017.

                                                                   (R.S.Panghal)

                                                                   Presiding Member,

(Ansuya Bishnoi)                                        Distt.Consumer Disputes                        Member                                                          Redressal Forum, Fatehabad.