BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 453 of 2015

Date of Institution: 23.7.2015

Date of Decision: 09.08.2016 

Lakhan Arora aged about  17 ½ years minor son  of ,through his father & Natural Guardian, Sh. Dalip Kumar  resident of 16-B, Old Jail Road, C-Block, Ranjit Avenue, Amritsar

Complainant

Versus

1. Smart App Shield through its Prop./Partner/Principal Officer, Corporate Office, Ist Floor, 73, South Model Gram, Ludhiana
2. The New India Assurance Co.Ltd through Branch Manager, Miller Ganj, Branch Ludhiana
3. Punjab Electronics, through its Prop/partner/Principal Officer, Hall Bazar, Amritsar

Opposite Parties

Complaint under section 12 & 13  of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant : Sh.Ajay Shanker, Advocate.

              For the Opposite Party  No.2: Sh.S.S.Randhawa,Advocate

              For the Opposite Parties  No.1 &3: Ex-parte

Coram:

Sh.S.S.Panesar President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S.Panessar,President.

1.  Lakhan Arora complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986  on the allegations that  complainant is minor of the age of about 17 ½ years, therefore, he is suing the present complaint through his natural father Dalip Kumar. Even otherwise the amount was paid by Dalip Kumar for the use and benefit of his son Lakhan Arora. The complainant had purchased one Apple I-Phone 6 plus (16GB) IMEI No. 354378063540472 from opposite party No.3 on payment of Rs. 61000/- against cash invoice No. 30003 dated 8.11.2014. Copy of the retail invoice is attached. At the time of purchase of the above mobile set, opposite party No.3 convinced the complainant to get insurance cover of opposite party No.1, who has further insurance arrangements with opposite party No.2 , to cover the risk of theft, breakage, water damage etc. On the asking of opposite party No.3 , complainant purchased insurance cover under the name “Smart App Shield” of opposite party No.1 on payment of insurance premium of Rs. 2299/-  and Smart App Shield Code No. 41396 was issued to the complainant depicting all the particulars with registered office at Smart App Shield 894-St.No.7, Krishna Nagar, Khanna. The complainant also purchased SIM card of  Vodafone for the use of mobile phone No. 9646186490. Period of insurance was for one year from the date of purchase. Unfortunately the above mobile phone was snatched from the complainant by some unidentified snatchers on 3.12.2014 for which a police report was lodged by the complainant with police chowki Majitha Road, Amritsar.  Copy of the letter is attached. The matter was immediately  informed to opposite party No.3 , who asked to take up the matter with opposite parties No.1 & 2. Thereafter intimation   of theft of the mobile set was given to opposite parties No.1 & 2 and in reply, opposite party No.2 sent claim form which was submitted to opposite party No.2 after filling the same alongwith all relevant documents on 5.12.2014. A consolidated police case No. 281 dated 20.11.2014 was registered u/s 382/341 IPC, P.S.Sadar, Amritsar and report u/s 173 Cr.P.C. was supplied  to the complainant   ,which was submitted by him to opposite party No.2, copy of which is attached. The complainant also wrote stolen of mobile set alongwith  SIM card to Vodafone and reply received is attached. Copy of missing mobile receipt  and non traceable report issued by police dated 29.4.2015 was also supplied to opposite party No.2, copies of the same are also attached. The complainant has submitted all the relevant  and required documents to the opposite parties as and when demanded by them but opposite parties No.1 & 2  have not settled  and made the payment of insurance amount despite lapse of  six months. Hence, the necessity has arisen to file the present complaint. The cause of action arose to the complainant against the opposite parties on 5.12.2014 when he lodged his claim form with opposite party No.2, who is insurance company for opposite party No.1 and lastly one day before yesterday when opposite parties No.1 & 2 failed  to redress the  grievance of the complainant . The complainant has prayed that opposite parties No.1 & 2 be directed to pay the insured amount of Rs. 61000/- alongwith interest @ 12% p.a  for the delayed period and compensation of Rs. 20000/- for mental tension, harassment and agony suffered by the complainant besides cost of litigation.
2. Upon notice, opposite party No.2 appeared and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that present complaint is not legally maintainable against replying opposite party. There is neither any privity of contract between the complainant and opposite party No.2 nor the complainant is consumer of opposite party No.2.  The complainant has neither paid any premium to opposite party No.2 nor the opposite party No.2 has issued any insurance policy in his favour. So the complaint is liable to be dismissed on this ground alone ; that  complainant has not approached this Forum with clean hands. He has not produced any copy of policy and even when the application was moved by opposite party No.2 to produce the copy of the policy, the complainant has failed  to supply the copy of the policy. He has not mentioned any policy number in the complaint also. No particulars have been supplied  not mentioned and as such opposite party No.2 is not liable to pay any compensation to the complainant ; that complainant has got no cause of action to file the present complaint against opposite party No.2 ; that complainant has no locus standi to file the present complaint. On merits facts narrated in the complaint have been denied  for want of knowledge. It is stated that complainant has no cause of action to file the complaint against opposite party No.2. It is denied that any claim was submitted by the complainant to opposite party No.2, as alleged. No such question arises because there is no privity of contract inter-se complainant and opposite party No.2 and a prayer for dismissal of the complaint with cost was made.
3. Opposite parties No.1 & 3 duly served but none put in appearance on their behalf, as such opposite parties No.1 & 3 were ordered to be proceeded against ex-parte.
4. In his bid to prove the case Sh. Ajay Shanker,Adv.counsel for the complainant  tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-16 and closed the evidence on behalf of complainant.
5. To rebut the aforesaid evidence Sh.S.S.Randhawa,Adv.counsel for opposite party No.2 tendered into evidence affidavit of Sh.Sunil Mahajan, Sr.Divisional Manager Ex.OP2/1 and closed the evidence on behalf of opposite party No.2.
6. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
7. On the basis of the evidence on record, ld. Counsel for opposite party No.2 has vehemently contended  that there is no privity of contract between complainant and opposite party No.2. Opposite party No.2 did not insure the mobile phone belonging to the complainant. The complainant has also failed to produce any policy documents to show that the mobile phone in dispute was under the insurance cover of opposite party No.2. The complainant could ask for relief from opposite parties No.1 & 3 only. Opposite party No.2 has been wrongly arrayed as party to the present complaint. There is absolutely no cause of action accruing to the complainant to file the instant complaint against opposite party No.2 and it is,therefore, contended that the complaint is liable to be dismissed with cost.

8.       But ,however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant purchased mobile phone in dispute on 8.11.2014 from opposite party No.3 on payment of Rs. 61000/- vide retail invoice , copy whereof is Ex.C-2 on record. It is further case of the complainant that opposite party No.3 had insurance contract with opposite parties  No. 1 & 2 and on insistence of opposite party No.3, complainant got his mobile phone  in dispute insured from opposite parties No. 1 & 2 and Smart App Shield was issued by opposite party No.2 in favour of the complainant, copy whereof is Ex.C-3 , customer copy of the insurance policy accounts for Ex.C-4 on record while insurance cover note is Ex.C-5. It is further proved on record that mobile phone in dispute was snatched from Lakhan Arora, complainant by some unidentified person on 4.12.2014 and he moved application with police authorities regarding the loss of the  mobile set in dispute. Copy of the application accounts for Ex.C-6. Copy of the complaint regarding receipt of missing mobile rapat is Ex.C-7. Theft case was later on clubbed with criminal case No. 281 dated 30.11.2014 u/s 382/341 IPC, P.S. Sadar, Amritsar and untraced report u/s 173 Cr.P.C. was submitted by the police to the Ilaqa Magistrate, copy of proceedings u/s 173 Cr.P.C. account for Ex.C-8. Opposite party No.2 intimated the complainant regarding the receipt of  information regarding loss of hand set in dispute vide e-mail dated 9.12.2014, copy of the same is Ex.C-10. The complainant submitted mobile hand set Insurance claim form for indemnification of the loss under Insurance cover, copy whereof is Ex.C-11 alongwith documents. But , however, despite receipt of the claim form alongwith documents, opposite parties No.1 & 2 have failed to redress the grievance of the complainant. A perusal of  Ex.C-3 shows that  an amount of Rs. 2299/- was paid by the complainant as premium qua insurance cover of the mobile phone in dispute in favour of opposite party No.2. The loss covered relates to risk of theft, breakage, water damage , etc, which is covered under the Insurance policy, copy whereof is Ex.C-4 and Ex.C-5 on record. But , however, opposite parties No.1 & 2 have failed to  pay the insurance claim to the complainant without any reasonable excuse. In our considered opinion, complainant has proved on record the allegations made in the complaint against opposite parties No.1 & 2 and opposite parties No.1 & 2 are under legal obligation to indemnify the loss of the complainant to the tune of Rs. 61000/- i.e. price of the insured mobile hand set . The complainant is also entitled to receive a sum of Rs. 5000/- on account of deficiency in service on the part of opposite parties No.1 & 2 besides that the litigation expenses  are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the receipt of copy of the order ; failing which , awarded amount  shall carry interest @ 9%  p.a.from the date of filing of the complaint until full and final recovery. Complaint against opposite party No.3 fails and the same is ordered to be dismissed against opposite party No.3. 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                                  (S.S.Panesar)

Dated : 9.08.2016                                                          President

/R/                        (Anoop Sharma)            (Kulwant Kaur Bajwa)

                                      Member                                   Member