Order dictated by:

Sh.Anoop Sharma, Presiding Member

1.  Hemantbir Singh complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986  on the allegations that complainant has purchased mobile phone 6 64 GB Item Code HA1072829, Order No. 8569593723 sub order No. 10945605737 IMEI No. 352089071418609 from opposite party No.1 vide Invoice No. S5AF2F/15-16/16110 dated 25.9.2015 for  Rs. 49,848/- . The complainant got insured the said mobile from opposite party No.2 on 2.10.2015 vide Insurance policy No. 67030246132400000008/15. On 25.8.2016 there was rain and suddenly the mobile set fell down in the water and became damaged accidently which was beyond the control of the complainant. Thereafter the complainant lodged claim with opposite party No.2  and requested them to make the payment of Insurance amount of the mobile, which was damaged due to sudden fall in rain water . But the opposite party has refused to pay the genuine claim of the complainant vide letter dated 28.9.2016. The complainant has sought for the following reliefs vide instant complaint:-

1. Opposite parties No.2 & 3 be directed to pay the insurance claim of the mobile on  the value for Rs. 49,848/- alongwith interest @ 24% p.a.
2. Compensation of Rs. 40000/- be also paid to the complainant.
3. Opposite parties be also directed to pay  adequate litigation expenses to the complainant.

Hence, this complaint.

2.       Upon notice, opposite party No.3 appeared and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that complainant has not come to the Forum with clean hands ; that the present complaint is not legally maintainable against opposite party No.3, as such the complainant is not entitled for any relief against opposite party No.3 ; that no cause of action has accrued in favour of the complainant against opposite party No.3 and the complaint has been filed without any cause of action. On merits it was submitted that there is no cover note or insurance policy issued by opposite party No.3 as alleged by the complainant has been placed on record. It was submitted that in case the complainant succeeds in proving the Insurance with opposite party No.3 even then he is not entitled for the relief claimed as he is negligent in maintaining  and taking due care of his mobile handset in the rainy weather  or otherwise. That the mobile handset was damaged due to fall in water for which no mobile company or Insurance company entertain any claim. The opposite party No.3 never issued any cover note or Insurance policy  as alleged for the insurance of any mobile handset of the complainant in question.  While denying and controverting other allegations, dismissal of complaint was prayed.

3.       Opposite party No.2 did not put appearance and was ordered to be proceeded against ex-parte.  Whereas complainant vide statement dated 9.1.2017 gave up the name of opposite party No.1.

4.       In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex.C-1, copy of e-mail Ex.C-2, copy of retail invoice Ex.C-3, copy of letter dated 2.10.2015 Ex.C-4, copy of letter dated 25.8.2016 Ex.C-5, copy of invoice dated 25.9.2015 Ex.C-6, copy of print out Ex.C-7 and closed his evidence.

5.       To rebut the aforesaid evidence Sh.Naresh Kumar Behl, Adv.counsel for the opposite party No.3 tendered into evidence affidavit of Sh.S.K.Shama,Divisional Manager Ex.OP3/1, copy of Insurance policy Ex.OP3/2, copy of terms and conditions Ex.OP3/3 and closed the evidence on behalf of opposite party No.3.

6.       We have heard the complainant and ld.counsel for opposite party No.3 and have carefully gone through the record on the file.

7.       On the basis of the evidence on record, ld.counsel for the opposite party No.3 has vehemently contended that  it is admitted that complainant purchased mobile phone 6 64 GB having IMEI No. 352089071418609 vide Invoice No. 5SAF2F/15-16/16110 dated 25.9.2015 for Rs. 49,848/- from opposite party No.1 , copy of bill/invoice accounts for Ex.C-3. The complainant got the mobile phone insured  vide policy No. 67030246132400000008/15 dated 2.10.2015 for insured value of Rs. 49,848/- from the opposite party No.2 .It was the case of the complainant that during the subsistence of the policy period  , the mobile handset fell down in water and was badly damaged. The complainant  lodged claim with opposite party No.2 and requested them to pay the insurance claim. But, however, the opposite party  refused to entertain the claim of the complainant.

8.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the mobile handset fell down in water during rainy season and the same got damaged. The complainant has immediately lodged claim with opposite party No.2 . But the opposite party refused to entertain the claim of the complainant  on the ground of negligence on the part of the complainant, which amounts to deficiency in service on the part of the opposite party.  The evidence adduced by the complainant,  in support of his case, has gone unrebutted on record because, despite due service, opposite party No.2 did not opt to appear and contest the claim of the complainant and thereby impliedly admitted the allegations of the complaint in toto. On the other hand opposite party No.3 has produced on record copy of policy schedule for package insurance policy in which insured name was shown as APPSDAILY SOLUTIONS PRIVATE LIMITED, whereas policy No. was shown as 67030246142400000008 which policy number was provided to the complainant by opposite party No.2.  Hence, it is proved that opposite party No.2 being TPA of opposite party No.3 has provided the policy to the complainant . Opposite party No.3 also placed on record terms and conditions of the policy which were attached with the policy . The opposite party No.2 issued letter dated 28.9.2016 vide which it was informed that Insurance company (New India Assurance  Company Ltd.) has rejected the claim  on the ground of negligence. But, however,as per terms and conditions of New India Assurance Company Limited Ex.OP3/3 in case of damage –total loss basis, depreciation value will be deducted from the total invoice value of the handset, remaining amount will be transferred to customer’s account as under:-

Since the mobile hand set in dispute was purchased for an amount of Rs. 49848/-  and the same was damaged during the subsistence of the policy but after purchase of approximately one year ,therefore, complainant was entitled to 55% of the value of the mobile hand set in dispute from opposite party No.2. Counsel for the opposite parties could not refute the clause of the insurance cover on the point of payment of insurance claim. In such a situation the claim of the complainant is required to be allowed to the extent of 55% of the price i.e. Rs. 49,848/-of the mobile hand set in dispute .

9.       From the above discussion, we are of the considered opinion that complainant is entitled to Rs. 27,416.40 paise i.e. 55% of the value of the mobile set (49848/- minus 22,431.60/- = Rs. 27,416.40 paise) . Opposite parties No.2 & 3 are directed  to pay Rs. 27,416.40 paise alongwith interest @ 9% p.a. from the date of  filing of the complaint till realization. Complaint stands allowed accordingly .  Cost of litigation are assessed at Rs.2000/-.   Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum                                

Dated : 7.4.2017