Complainant Jasbir Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that opposite party no.2 may kindly be directed to pay the genuine damaged claim of the mobile set under their mobile insurance policy and opposite parties no.1 & 3 be directed to return the above said mobile set to the complainant and they also be directed to pay Rs.50,000/- as compensation. Complainant has also claimed Rs.10,000/- as litigation expenses and also prayed that any other relief for which this Hon'ble Forum deems sustainable may also be granted to the complainant and his complaint may kindly be accepted, all in the interest of justice.
2. The case of the complainant in brief is that on 22.06.2016 he had purchased a Samsung Mobile phone bearing product code No.SM-A710FZWF from the opposite party No.1 under insurance No.50991790 of Syska mobile insurance Company i.e. opposite party No.2. As such total amount of Rs.30,400/- was paid by the complainant vide Bill No.S16/329 dated 22.06.2016 to the opposite party No.1. It was pleaded that unfortunately, a road accident took place with the complainant and due to this accident above said mobile set in dispute was got damaged and on 27.09.2016 complainant moved a complaint and also filled up and submitted mobile insurance claim form (For damage claim) with the Company and complaint No.1609274094 was got registered by the Company and mobile phone was picked up by the opposite party No.3 from the complainant vide order ID No.1609274094 and pick up receipt No.107910038894. It was further pleaded that the claim of the complainant was rejected by the opposite party due to technically mismatch of Date of Birth of complainant which was inadvertently written by the complainant and the same was not as per his Aadhar Card number. It was also pleaded that after the rejection of the claim of the complainant by opposite party No.2 complainant moved so many applications to Syska mobile insurance company and opposite parties No.1 & 3 through E-mails as well as through telephone calls and requested them to return the above said mobile set but the opposite parties failed to return the same to the complainant without any reasonable cause. It was next pleaded that opposite party did not give proper heed to the genuine claim/requests of the complainant and putting the matter away on one pretext or another by simply saying that our representatives will contact you in 24 hours, 48 hours etc. and not admitting the claim of the complainant. It was pleaded that opposite parties had intentionally and deliberately delaying the matter and putting the complainant away and as such there is clear cut deficiency in service on the part of the opposite parties, hence this complaint.
- Notice of the complaint was served upon the opposite parties. Opposite party No. 1 appeared through their counsel and filed the written reply by taking the preliminary objections that the complainant has no locus standi to file the complaint against the opposite party No.1. Complainant has no cause of action to file the present complaint against the opposite party No.1 and there was no privity of contract between the complainant and opposite party No.1 for payment of any claim under the insurance cover and complainant had never informed the opposite party No.1 regarding the damage of mobile. There was no deficiency in service on the part of opposite party No.1. Opposite party No.1 is in no way liable to pay the insurance claim amount as complainant had taken the insurance cover from the insurer opposite party No.2 at the time of purchasing of the mobile and opposite party No.2 agreed to indemnify the insured complainant in the event of loss or damage to the mobile in question. On merits, it was stated that mobile was purchased by the complainant vide bill referred in the complaint and complainant opted for insurance and opposite party No.2 insured the mobile and the policy of insurance was issued to the complainant on payment of premium to opposite party No.1 and as such mobile in question was insured with the opposite party No.2. It was further stated that complainant never informed the opposite party No.1 regarding the damage caused to the mobile nor the opposite party No.1had any knowledge about the picking up of mobile by the opposite party No.3. It was also stated that the opposite party No.1 is in no way involved in the rejection of claim by the opposite party No.2 nor it had taken the mobile after damage and as such there was no question of the opposite party No.1 to return the mobile set arises. It was next stated that opposite party No.2 under obligation to pay the claim if it found to be genuine and non payment of the claim could not be attributed to the opposite party No.1. All other averments made in the complaint have been denied and lastly prayed for dismissal of the complaint against opposite party No.1 with costs.
4. Opposite parties No.2 and 3 did not appear and were proceeded against exparte vide order dated 08.02.2017.
5. Counsel for the complainant had tendered into evidence affidavit of complainant Ex.C-1 along with copies of documents Ex.C2 to Ex.C-8 and closed the evidence on behalf of complainant.
6. Counsel for the opposite party No.1 had tendered into evidence affidavit of Sh.Sahil Gupta Ex.OPW-1/A along with copy of retail sales Ex.OP-1 and closed the evidence on behalf of opposite party No.1.
7. We have intently perused all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while (at the same time) taking the due judicial-notice of the OP2 mobile-insurers & OP3 Mfrs. Agent’s suo-moto absence with effect from 08.02.2017 and ordered to be proceeded against ‘ex-parte’ on account of the ‘proven’ summon-service through the prescribed ‘Registered AD’ post. Although, it has been a settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee(s) litigant(s) have no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte absentees by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the adjudicatory Act.
8. We find that the present dispute/complaint has arisen as a result of the impugned ‘repudiation’ of the mobile-insurance damage-claim filed by the present complainant past the Road Accident damaging the ‘insured’ mobile-set that was duly picked-up by the OP3 Agent but the related claim was allegedly rejected for the arbitrary reason of ‘mismatch’ of the complainant’s reported date of birth with that recorded on his Aadhar Card. It has been further alleged that the opposite parties have not even returned the complainant’s damaged mobile till the filing of the present complaint in spite of his repeated requests. The complainant has proved his allegations of ‘defectiveness and pre-use’ vide his affidavit Ex.C1.
9. We find that the OP1 vendor submitted its written reply (duly supported by the affidavit Ex.OP-w-1/A) pleading therein that ‘Insurance, Repairs, Replacement and Refund’ of the Samsung Make Products (sold at his shop) has been the responsibility/liability of the OP2 & the OP3 and as such the present complaint deserves to be dismissed, at least, against its name. Moreover, the complainant did not intimate them (the OP1 vendor) of the damage caused to the insured mobile and subsequent filing of the insurance claim etc. We are not prepared to accept this arbitrary plea of the OP1 and hold it jointly, severally and co-extensively liable to an adverse statutory award along with the other opposite parties.
10. We find that the complainant could not enjoy the full benefits of his Samsung Mobile Set purchased from the OP1 (under insurance of the OP2) and proven ‘pick-up’ by the OP3 Agent and subsequent claim rejection on flimsy grounds of date of birth mismatch that apparently shall be of ‘NO’ prime significance in settling the ‘mobile-damage’ claim. Thus, we are of the considered opinion that the present complainant has been entitled to the statutory relief under the applicable Act.
11. In the light of all above, we partly allow the present complaint and thus ORDER the titled opposite parties to refund the Mobile Set’s depreciated cost (assessed at Rs.25,000/-) to the complainant besides to pay him Rs.5,000/- as cost and compensation. The compliance of the present award shall be the joint, several and co-extensive liability of the titled opposite parties and its cost may be borne between themselves as per their mutual settlement (if any) but the exercise shall, by all means be completed/exhausted within 30 days of receipt of the copy of these orders otherwise they shall also be liable to pay accrued interest @ 9% PA from the date of the present orders till actually paid.
12. Copy of the order be communicated to the parties free of charges. File is ordered to be consigned to the record room.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
JULY 07, 2017 Member.
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