Haryana

Kurukshetra

CC/424/2019

Sunil Kumar - Complainant(s)

Versus

Shri Guru kirpa - Opp.Party(s)

Rekha Devi

10 Mar 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL  COMMISSION, KURUKSHETRA.

                                                     Complaint Case No.424 of 2019

                                                     Date of institution: 17.09.2019                                                                 

                                                      Date of decision:10.03.2022.                                                      

                         

Sunil Kumar (since deceased)  son of Shri Virbhan resident of Jhansa Tehsil Thanesar District Kurukshetra through legal heirs.

i)      Manjeet Kaur widow

ii)      Rudar (minor son) of late Sh.Sunil Kumar, both residents of Jhansa Tehsil Thanesar District Kurukshetra minor son Rudar through his mother Smt.Manjeet Kaur who is natural guardian and next fried.

                                                                …Complainant.

                        Versus

1.Shri Guru Kirpa Mobile Hub  near Post office Ismailabad District Kurukshetra through its Proprietor.

2. Bajaj Allianz General Insurance Company Limited SCO No.156 tp 159. 2^nd Floor, Sector 9-C, Chandigarh 160009.

.                                                               ….Opposite parties.

               

                Complaint u/s 12 of the Consumer Protection Act.

Before:      Smt. Neelam Kashyap, President.

                Sh.  Issam Singh Sagwal, Member.

       

Present:     Ms.Rekha Devi Advocate for the complainant.

                OP No.1 ex-parte.

                Sh.Atul Mittal Advocate for the OP No.2.

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 has been moved by Sunil Kumar against Shri Guru Kirpa  etc.-Opposite Parties.

2.            It is stated in the complaint that the mobile phone of the complainant  had purchased one mobile set of VIVOV15 PRO (6+128G) from OP No.1 for a sum of Rs.28990.00. The complainant got insured his above said mobile through the OP No.3. As per the insurance policy, the mobile phone was covered for any kind of damage/loss/theft etc. for the period of 22 MARCH 2019 TO 21 March 2020. The mobile phone of the complainant has been lost on 25.6.2019  in the area of village Jhansa district Kurukshetra. The complainant tried his best to search out the mobile  but in vain. He got recorded the DD No.14 dated 25.6.2019 on the same day. The OP No.2 was also informed about the misplacement of the phone.  OP No.2 deputed their investigator who inquired into the matter and confirmed /verified the instance mentioned in the DDR. It is stated that all the documents regarding theft were supplied by the complainant to the OP and theft claim was lodged. So far as no information about the status of claim lodged by the complainant has been given by the OP. Thus, such an act on the part of the OP amounts to deficiency in services on the part of the OP. Thus, the complainant has filed the present complaint alleging deficiency in services on the part of the Ops and prayed that the Ops be directed to pay the claim amount of the complainant alongwith compensation for the mental harassment caused to him.

3.             Notice of the complaint was given to the Ops. OP No.1  failed to appear and contest the case despite due service. Therefore, OP No.1 was proceeded against ex parte vide order dated 31.10.2019.

4.             OP No.2 appeared and filed written statement disputing the claim of the complainant.  It is submitted that the present complaint is pre mature. The answering OP has acted strictly in accordance with the  terms and conditions of the policy and demand raised by the complainant is against the  agreed terms and conditions of the contract under the policy.  The claim lodged by the complainant, if paid would amount to re writing of insurance contract.  It is further submitted that since the complainant or any person on his behalf has failed to comply with the terms and conditions of the policy and hindered or obstructed the company in exercise of its powers, therefore, all the benefits of the complainant under the impugned policy have been forfeited by the OP. Thus, the complaint in question is not maintainable. The complainant has put forwarded a false and vague story.  The complainant never approached the OP rather the complainant has suppressed the true and material facts from this commission and have not come with clean hands.  Thus, it is submitted that there is no deficiency in services on the part of the answering OP and prayed for dismissal of the present complaint.

5.             The complainant in support of his case has filed his affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-4 and closed his evidence.

6.             On the other hand, OP No.2 in support of its case has filed his affidavit  Ex.RW1/A and closed its evidence after tendering document Ex.R1.

7.             We have heard the learned counsel for the parties and have gone through the material available on the case file.

8.             The learned counsel for the complainant while reiterating the averments made in the complaint has argued that had purchased one mobile set of VIVOV15 PRO (6+128G) from OP No.1 for a sum of Rs.28990.00. (Bill Ex.C-1) The complainant got insured his above said mobile through the OP No.3. As per the insurance policy, the mobile phone was covered for any kind of damage/loss/theft etc. for the period of 22 MARCH 2019 TO 21 March 2020 as per insurance policy Ex.C-3. The mobile phone of the complainant has been lost on 25.6.2019  in the area of village Jhansa district Kurukshetra. The complainant tried his best to search out the mobile  but in vain. He got recorded the DD No.14 dated 25.6.2019 on the same day. The OP No.2 was also informed about the misplacement of the phone.  OP No.2 deputed their investigator who inquired into the matter and confirmed /verified the instance mentioned in the DDR but the claim of the complainant has not been paid which amounts to deficiency in services on the part of the Ops.

9.             On the other hand learned counsel for the OP no.2  while reasserting the submissions made in the written statement has argued that OP has acted strictly in accordance with the  terms and conditions of the policy and demand raised by the complainant is against the  agreed terms and conditions of the contract under the policy.  The claim lodged by the complainant, if paid would amount to re writing of insurance contract.  It is further argued that since the complainant or any person on his behalf has failed to comply with the terms and conditions of the policy and hindered or obstructed the company in exercise of its powers, therefore, all the benefits of the complainant under the impugned policy have been forfeited by the OP.      

10.            After hearing the learned counsel for the parties, we see that as per version of the complainant he had purchased the mobile phone for Rs.28990/- as per bill  Ex.C-1. Insurance of the mobile phone as on the date of theft is not in dispute. The complainant has specifically stated in para no.5 of the complaint  that intimation of theft was given and the Ops deputed to verify the contents of the DDR . The Ops have given evasive reply to the said averment and has not disputed the lodging of the DDR and deputing of the surveyor.  The evasive reply amounts to admission. Therefore, it is proved that the phone of the complainant was insured with the OP No.2 and same has been lost, therefore, the complainant is entitled to cost of the mobile. The mobile phone has been lost just after 3 months of the purchase , therefore, the OP no.2 is liable to  pay the cost of the mobile phone i.e. Rs.28990/- minus 10% depreciation as per terms and conditions of the policy. For non payment of the claim to the claimants, there is deficiency in services on the  part of the OP No.2 being insurer of the mobile phone in question. Hence, the present complaint is liable to be accepted. However, no deficiency in services is made out against the OP No.1.

11.            In view of our above mentioned findings and observations, we accept the present complaint and direct the OP No.2 :

i)              The pay the sum of Rs.28990/- to the complainants  after deducting the 10% depreciation from the cost of the mobile phone, alongwith interest @ 6% per annum from the date of this order till its actual realization. However, it is made clear that out of the decretal amount, a sum of Rs.5000/- be deposited in the shape of FDR in some nationalized bank and same would be released only on attaining of majority by the  complainant Rudar(minor).

ii)              The complainant shall also be entitled for a sum of Rs.5000/- in lump sum for the mental harassment caused to him and for the litigation expenses.

                The OP No.2 is further directed to  make the compliance of this order within a period of 30 days from the date of preparation of certified copy of this order, failing which the complainants shall be entitled to initiate proceedings u/s 25/27 of the Consumer Protection Act. The complaint qua OP No.1 stands dismissed. Certified copy of this order be supplied to the parties concerned as per the rules and the file be consigned to the record room after due compliance.

 

Announced in the open Commission.

Dated: 10.3.2022.                                               President.

 

                                        Member.