Orissa

Cuttak

CC/131/2016

Jagatananda Das - Complainant(s)

Versus

Regional Manager,The New India Assurance Company Limited - Opp.Party(s)

M K Panda

20 Sep 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.131/2016

 

Jagatananda Das,

At: Plot No.3D/1124,Sector-11,C.D.A,

Town/Dist:Cuttack.                                                                      … Complainant.

 

                Vrs.

 

1.        Regional Manager/Competent Authority,

       The New India Assurance Co. Ltd.,

       Bangalore Regional Offaice, 2B, Unity BLDG

       Annexe, ission Road,Bangalore,Karnataka.

 

2.        M/s. Balaji Telecom,Osiya Tower(Near Akbari Hotel),

       Haripur Road,Dolamundai,

                            Town/Dist:Cuttack..                                                                 … Opp. Parties.

 

Present:              Sri Dhruba Charan Barik,President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     20.10.2016 

Date of Order:   20.09.2017

 

For the complainant                    :       Mr. M.K.Panda,Adv. & Associates.

For the Opp. Parties.                   :       Sri   N.N.Mishra,Adv. & Associates.

 

Sri Bichitra Nanda Tripathy, Member.

The case is against deficiency in service & unfair trade practice on the part of O.Ps.

1. Shortly the case of the complainant is that the complainant purchased a Samsung Galaxy Mobile hand set for a price of Rs.15,000/- vide retail invoice no.2238 dt.17.10.2015 from O.P No.2.  He also paid a sum of Rs.2500/-  to O.P No.2 for Apps Daily mobile protection vide invoice pno.2239 dt.17.10.15 and the set was duly insured with O.P No.1 through O.P No.2.   On 22.03.2016 the mobile set was stolen by someone from the house of the complainant.  FIR was lodged before IIC,Markatnagar  P.S, Phase-II and the same was registered vide station diary no.580 dt.22.05.2016.  O.P No.1 was also intimated regarding the theft of the insured article.  O.P No.1 registered the information and provided claim intimation bearing No.ADT 2303163010489.  The complainant lodged the claim but it was not settled.  The complainant issued legal notice on 25.07.2016 /27.7.2017 by Regd. Post to settle the matter within a stipulated period but in vain.  Finding no other way, the complainant has taken shelter of this Hon’ble Forum.  He has prayed to  direct the O.P to disburse the insured value of the hand set i.e. Rs.15,000/- with interest and also to pay Rs.20,000/- towards compensation towards mental agony and a further sum of Rs.10,000/- towards cost of litigation.
2. O.P No.1 vide their written version dt.11.05.2017 has intimated that the mobile hand set all risks insurance policy in its exclusion clause speaks as follows and the same was agreed by the complainant as per terms and condition of the policy.

The insurer is not liable for loss-

“Due to mysterious disappearance, forgotten, missing or misplaced or lost or if hand set is left unattended at any point of time or any unexplained loss.”/ “Caused by incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect set up and neglect”. /  “Due to negligence/misconduct of insured, the intentional act or willful neglect of the insured over loading of the instrument”

From the FIR lodged with the policy by the complainant, it is clear that the complainant  was negligent himself in keeping the window open and also by keeping the hand set over the table which was nearer to the window.  The claim was repudiated as no claim and was intimated to the complainant vide letter dt.22.07.2016.

3. We have gone through the case records in details and perused minutely the documents as submitted by the complainant as well by O.P No.1.  Heard the advocates from both the sides at length and observed that the complainant purchased a Samsung Galaxy hand set from O.P No.2 for a price of Rs.15,000/- on 17.10.2015 vide retail invoice No.2238.  The said mobile set was also insured with O.P No.1 through O.P No.2 on payment of premium worth Rs.2500/-.  The mobile set was stolen from the residence of the complainant on 22.3.2016 for which FIR was lodged with Markat Nagar Police Station vide station diary no.580 dt.22.3.2016.  In the FIR as lodged by the complainant it is stated that the mobile set was kept on a table which was close to the open window.  Someone has stolen the mobile when the complainant was absent in the said room.  From the above statement of the complainant it is clear that someone has stolen the mobile set through the open window since the window was open and the mobile set was kept on the table which was close to the open window. This indicates negligence on the part of the complainant.  The exclusions to the said insurance policy says that the insurer is not liable for loss “caused by incorrect storage, poor care and maintenance, careless use, incorrect installation and incorrect set up and neglect.”

“Due to mysterious disappearance, forgotten, missing or misplaced or lost or if hand set is left unattended at any point of time or any unexplained loss.”

“Due to negligence/misconduct of insured/the intentional act or willful neglect of the insured/overloading of the instrument.”

From the above exclusion clauses, it is clear that the complainant has not taken proper care of his mobile set.  Since he had left the mobile unattended on a table which was close to the window some unknown person got a chance to take away the mobile.  It was decided by Hon’ble National Commission vide Revision Petition No.3029 of 2014 on 04.05.2017 that Insurance claim cannot be allowed ignoring exclusion clause. [2017(2) CPR 618(NC)].

Basing on the facts and circumstances as stated above, it is observed that the complainant failed to prove the deficiency in service on the part of O.Ps.  Hence, the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 20^th day of September,2017 under the seal and signature of this Forum.

 

   (Sri B.N.Tripathy )

                                                                                                             Member.

 

                                                                                                                                         

                                                                                                      (  Sri D.C.Barik )

                                                                                                               President.

 

 

                                                                                                          (Smt. Sarmistha Nath) 

                                                                                                           Member(W).