Delhi

North

CC/190/2016

SAHIL BATRA - Complainant(s)

Versus

SHEKHAR JUNEJA AND ANR. - Opp.Party(s)

S.K. KOCHHAR

09 Oct 2023

ORDER

 

 

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 190/2016 

 

In the matter of (As per amended memo of parties)

Mr.Sahil Batra

S/o Mr. Suresh Batra

R/o House No.-938, Sec-15, Sonepat

Haryana                                                                                                                     …              Complainant

                            

                                                        Versus

Mr.Shekhar  Juneja, Proprietor

CARIANO TELECOM

5,6,7,E, Kamla Nagar

Delhi-110007                                                                                                            …      Opposite Party-1

 

IFFCO Tokio General Insurance Co.Ltd.

IFFCO Sadan, C-1, Dist. Center, Saket

New Delhi-110017                                                                                                  …      Opposite Party-2

 

M/s.RMP Electronic Private Ltd.

A-83, Sector-2

NOIDA-201301                                                                                                      …      Opposite Party-3

ORDER

09/10/2023

Ms.Harpreet Kaur Charya, Member

          The present complaint has been filed by Sh. Sahil Batra, the Complainant against Mr.Shekhar Juneja, Proprietor, CARIANO Telecom as OP-1, IFFCO Tokio General Insurance Co.Ltd. as OP-2 and  M/s.RMP Electronic Private Ltd. as OP-3 with the allegations of unfair trade practice.

1. Facts necessary for the disposal of the present complaint are, that on 10/01/2016, the complainant purchased an Apple I-Phone- 6S with 16GB from OP-1 for a total sum of Rs.50,000/- including VAT.  A receipt No.16444 was issued.  The complainant was persuaded by OP-1 to buy Insurance cover by paying Rs.3,999/-, to cover accidental damage, liquid damage, theft, mechanical and electrical faults and unrepairable coverage.  The policy was issued by IFFCO Tokio General Insurance Co.Ltd. (OP-2).
2. On 23/05/2016, the insured I-phone was stolen from the pocket of the complainant while he was boarding the Metro train from Huda City Centre for which a complaint was registered with Haryana Police at the Metro Station, Huda City Centre on 31/05/2016.  OP-1 was informed about the instance of the theft and thereafter the complainant was guided to file the claim with OP-2.  On 14/06/2016, the complainant received an email from one, Ms. Deepika Joshi, where the complainant was informed that the claim was not payable as it was a case of simple theft where forcible entry or violence was not used and it falls under the Exclusion No.1 of the policy terms and conditions.
3. Legal notice was served upon OPs.  However, the same was neither replied nor complied with. The complainant has alleged that OP-1 and OP-2 have indulged in unfair trade practices by misinforming the complainant about the benefits of the insurance cover and declining the claim of the complainant. 
4. Feeling aggrieved by the rejection of the claim, the complainant has filed the present complaint with the prayer for directions to OPs to discontinue unfair trade practices and refund Rs.53,999/-.along with the interest @24% p.a.  and compensation of Rs.1,00,000/- towards unfair trade practice and mental agony and the cost of the proceeding. 
5. The complainant has annexed Receipt No.16444 dated 10/01/2016 against cash payment as Annexure-I, cover Note of premium paid for the Insurance as Annexure-II, copy of FIR with Haryana police at Gurgaon dated 31/05/2016 as Annexure-III, copy of claim as Annexure-IV, copy of email received from Ms. Deepika Joshi on 14/06/2016 as Annexure-V, copy of Legal Notice dated 30/06/2016 as Annexure-VI with the complaint.
6. Notice of the present complaint was served upon OPs.
7. Despite service, neither any reply was filed on behalf of OP-1 and OP-3, nor anyone appeared on their behalf, hence, they were proceeded ex-parte vide order dated 13/12/2017. 
8. Written statement was filed on behalf of OP-2 where they have taken several preliminary objections such as; the present complaint was not maintainable as there is no privity of contract between the complainant and the OP.  The policy was issued to M/s RMP Electronic Pvt. Ltd.  and the complainant has not impleaded them as party, thus, the complaint was bad for non-joinder of party; the claim of the complainant was rejected on the ground of exclusion provided in the policy.  In the present case, the Mobile phone was stolen, without any forcible or violent means.  As per the policy terms and conditions:-“Exclusion: Loss, such as lost, forgotten/misplaced/left unattended, simple theft where forcibly entry has not occurred or violence used.”
9. Thus, it was not payable as per policy terms and conditions. It has further been submitted that the mobile was stolen on 23/05/2016, however, an FIR was lodged with the delay on 31/05/2016, which was in contravention to Section 7 of the policy terms and conditions, wherein, the theft was to be reported immediately (not later than 48 hours from the date and time of loss) to nearest police authorities and police acknowledgement/ receipt of written intimation. In the present case, the complainant failed to furnish any intimation to the cellular network service provider. Rest of the contents of the complaint have been denied with the prayer for dismissing the complaint with heavy costs.
10. OP-2 has annexed the copy of the policy schedule along with terms and conditions and the repudiation letter dated 30/06/2016 with their written statement.
11. Rejoinder to the Written Statement of OP-2 was filed by the complainant, wherein, the complainant has stated that M/s RMP Electronics Pvt. Ltd. has already been impleaded as OP-2 as a party. It has been further stated that the insurance policy was never supplied to the complainant before the filing of the complaint and the exclusions referred by OP-2, were neither applicable to the complaint nor were in consonance with the test laid down in Regulation 3 of the IRDA Regulation, 2002. It has been stated that it was a case of theft and not burglary.
12. In rebuttal to the objection of delay in registration of FIR, it has been submitted that it was the first day of the complainant for his internship at Gurgaon, where the incident of theft happened while boarding the train and by the time the complainant became aware, the train had left the metro station. The complainant tried to contact OP-1 for the assistance. It was only after receiving the information from OP-1; the complainant again visited Gurgaon for registering FIR from his hometown, Sonepat, Haryana. The complainant has also alleged that the period of 48 hours as mentioned in the Written Statement not there in the policy document. Rest of the contents of the Written Statement have been denied and those of the complaint have been reiterated. The complainant has annexed the summer internship letter as Annexure 1.
13. Evidence by way of affidavit was filed on behalf of the complainant. He has repeated the contents of the complaint and has got exhibited the annexure with the complaint. The copy of the letter dated 16/05/2015 issued by the O.P. Jindal Global University for internship has been exhibited as Ex.C/1/1; the invoice dated 10/01/2016 as Ex.C/1/2; the cover note for the premium of Rs. 3,999/- issued by OP-1 as Ex.C/1/3; the complaint registered with Haryana Police dated 31/05/2016 as Ex.C/1/4; claim dated 03/06/2016 as Ex.C/1/5; an email dated 14/06/2016 from one, Ms. Deepika Joshi as Ex.C/1/6; Legal notice dated 30/06/2016 as Ex.C/1/7.
14. OP-2 has got examined Sh. Raj K Bora, Vice President of IFFCO Tokio General Insurance Co.Ltd. He has also repeated the contents of the Written Statement and has relied on the documents annexed with it.
15. We have heard the arguments of Ld. Counsel for the complainant and Ld. Counsel for OP and have perused the material placed on record. The complainant is aggrieved by the rejection of his claim by OP-2 on the pretext of Exclusion Clause, wherein the loss due to simple theft, in the absence of forcible entry or violence is not payable.  The complainant has placed on record the customer copy of the “Software suite with FREE HANDSET INSURANCE”,issued by OP-2 (Ex.CW1/3), which bears the plan information as follows:

Plan No.	MO1008962
Brand & Model No.	Apple Iphone 6S
IMEI	353272079658835
Date	10/01/2016
Invoice No.	16444
Invoice value	40,000/-
Type ☑ mobile □ Tablet MRP of the product is 10% of the handsetinvoice value Paid amount Rs.3999/-

 

16.  It further bears one year plan benefit against: Accidental damage; liquid damage; Theft, mechanical and electrical faults; non repairable coverage and software suite.  Thus, as per Ex.CW1/3, the handset of the complainant was insured against theft, it does not elaborates that the said theft has to be due to use of force/ violence.
17. It has been argued by the Ld. Counsel for OP-2, that the claim was not payable as per policy terms and conditions.  The same has been rebutted by the complainant on the ground that the policy terms and conditions were neither handed over to him nor disclosed, hence they are not binding on the complainant.  Even, if we go through the said policy terms and condition under the head:

What is covered: the ambit of this cover is Loss of or Damage to Property insured caused by fire, riots and strike, terrorist activity, theft or accident from any fortuitous caused at any time during the period of insurance. 

18. The FIR bearing No.0007 of 31/05/2016 with PS: Metro, Gurgaon has also been registered under Section 379, IPC 1860, which deals with the punishment for theft.  Section 378, Indian Penal Code, 1860 defines Theft:

Section 378 ‘Theft’ as ‘whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft’.  Thus, in the present case the claim of the complainant is covered under ‘theft’ and as per the policy terms and condition the loss due to theft is covered.

19. The rejection of the claim by OP-2 on the ground that there was no use of violence or force by committing theft is unsustainable. Once, theft is covered under the policy terms and conditions then, rejection on the baseless ground definitely amounts to deficiency in services.
20. Therefore, from the above discussion and in the facts and circumstance of the present complaint, we direct OP-2 to settle the claim of the complainant for Rs.40,000/- being the invoice amount as mentioned in Ex.CW1/3 along with interest @7% p.a. from the date of filing of complaint i.e. 08/08/2016 till realization.  We further award compensation of Rs.15,000/- on account of mental agony and harassment, inclusive of litigation expenses. 
21. The order be complied within 30 days of receipt of this order, in case of non-compliance the complainant shall be entitled to interest @9% p.a. on          Rs. 55,000/- (40,000/-+15,000/-)  from the date of order till realization.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

(Harpreet Kaur Charya) Member

(Ashwani Kumar Mehta) Member

 

(Divya Jyoti Jaipuriar)

                                            President