Complaint No: 256 of 2019.
Date of Institution: 09.08.2019.
Date of order: 01.03.2024.
Jashbir Kumar Son of Ram Lal, resident of V.P.O. Jaffarwal, Dhariwal, Tehsil and District Gurdaspur.
…........Complainant.
VERSUS
1. Sood Telecom, G.T. Road, Shop No. 4, Near Woolen Mill Gate, Dhariwal, Tehsil and District Gurdaspur.
2. Bajaj Alliance General Insurance Company Limited, above Madan Bajaj, Improvement Trust Colony, Batala Road, Gurdaspur, Tehsil and District Gurdaspur.
….Opposite parties.
Complaint U/s 12 of The Consumer Protection Act.
Present: For the Complainant: Sh.Rohit Gupta, Advocate.
Opposite Party No.1: None.
For the Opposite Party No.2: Sh.Sandeep Ohri, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Jashbir Kumar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Sood Telecom Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the opposite party No. 1 running a business of sale / purchase of mobile phones and other related accessories by the name of Sood Telecom at G.T. Road, Shop No. 4, Near Woolen Mill Gate, Dhariwal, Tehsil and District Gurdaspur, hence both the complainant and opposite party No. 1 belongs to same place of Tehsil and District Gurdaspur. It is pleaded that on dated 01.06.2019 the complainant visited the shop of the opposite party No. 1 and asked for the purchase of New Mobile and the opposite party No. 1 showed many mobile phones to the complainant, but the complainant selected the mobile of Samsung Company vide Model No.A50 4GB (356129101953815) Blue. It is further pleaded that the opposite party No. 1 demanded Rs.18,000/- for the above said mobile. However, the complainant was not in a position to pay full amount of the mobile phone. So, the opposite party No.1 advised the complainant to purchase this mobile on installments. Finally, the complainant gave down payment of Rs.6,284/- as cash and balance amount of Rs.11,716/- was converted into installments. It is further pleaded that the opposite party No. 1 also offered the complainant to buy insurance policy for the above said mobile, so that mobile could be insured from 01.06.2019 to 31.05.2020. The opposite party No. 1 also assured the complainant that if the complainant will go for insurance policy of mobile phone, then the complainant can claim full amount of Rs.18,000/- in case of breakage or theft the mobile phone. It is further pleaded that the complainant also agreed to insure the mobile phone. The opposite party No. 1 asked for another Rs.1847/- for insurance charges of mobile phone and Rs.1847/- was also added into the balance of Rs.11,716/-, so the total amount which financed came to Rs.13,563/-. So, on total financed amount of Rs.13,563/-, the opposite party No. 1 made monthly installment of Rs.1398/- for 11 months. It is further pleaded that after the period of 10 days the above said mobile phone fell down from the hands of the complainant and mobile phone stopped working, so on the same day the complainant approached the opposite party No. 1 and asked for the replacement of mobile phone as the mobile phone was covered under insurance policy, but the opposite party No. 1 tried to delay the matter for 10-15 days and then they advised to contact the insurance company from where the same mobile got insured. It is further pleaded that the complainant visited the branch of the opposite party No. 2 i.e. Bajaj Alliance General Insurance Company Limited, above Madan Bajaj, Improvement Trust Colony, Batala Road, Gurdaspur, Tehsil and District Gurdaspur, but the opposite party No. 2 advised the complainant to contact the dealer from where he purchased the mobile phone. It is further pleaded that the opposite parties continuously deducting the monthly installment for the above said mobile phone from the account of the complainant. Already two installments have been paid through electronic clearance system. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay Rs.18,000/- to the complainant alongwith interest and the opposite parties may also be directed to pay Rs.10,000/- as litigation charges and Rs.10,000/- on account of harassment and mental pain, agony to the complainant, in the interest of justice and fair play.
3. Upon notice, the opposite party No.1 appeared through its proprietor i.e. Aman Sood and contested the complaint and filing their written reply by taking the preliminary objections that the complaint against the answering opposite party No.1 is not maintainable, as there is no any kind of deficiency in service on the part of the answering opposite party No. 1. It is pleaded that no cause of action has accrued to the complainant against the answering opposite party No. 1 for filing the present complaint and the present complaint is sheer misuse and abuse of the process of law and the complainant has not come to the Hon’ble Court with clean hands and has filed a false complaint by concealing the true and material facts. It is further pleaded that the fact of matter is that the answering opposite party No. 1 delivered Mobile Phone in question to the complainant in working condition on receiving down payment of Rs.6,284/- in cash and the remaining amount has been financed by the complainant himself from the OP No. 2 with his own free will and accord. The answering opposite party No. 1 has absolutely no role in the finance and insurance of the Mobile Phone in question, nor he received single penny from the complainant qua insurance of the mobile phone as alleged in this complaint and the complainant has put forth a false and concocted story in this complaint.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action and locus standi to file the present complaint. It is further pleaded that from a bare perusal of the contents of the present complaint and without admitting the contents of the same in the stated manner, it has been revealed that the present complaint is nothing, but merely gross abuse of the process of law which is absolutely false, frivolous and vexatious thereby making the same as illegal and not at all tenable having been filed without any cause of action, therefore, the same is liable to be dismissed with costs in limine. It is further pleaded that the complainant is estopped from filing the present complaint due to his own acts, deeds, conduct and acquiescence and the contents of the instant complaint of the complainant, unless specifically admitted, are not true and correct, hence the same are denied by the answering OP No. 2. The ingredients of alleged deficiency of service and unfair trade practice qua the answering OP are completely missing therefore; the complaint in hand is liable to be dismissed with special costs. It is further pleaded that no claim has ever been intimated by the complainant. Even no claim number or any details of the claim has been given in the complaint. As such the present complaint is premature and is liable to be dismissed and no claim has ever been filed and no document has ever been sent to the insurance co. and as such, due to non-intimation of the claim to the answering insurance company, there is violation of policy terms and conditions and this complaint is liable to be dismissed with costs. It is further pleaded that there has been breach of condition No. 5(a) of the insurance policy stated as under for reference of this court as no intimation was given by the complainant – 5 (a) Upon the occurrence of any loss or damage likely to give rise to a claim under this policy the Insured shall immediately on the discovery thereof give notice in writing to the Company setting forth as early as possible the circumstances under which it occurred and the manner in which it was brought to his knowledge. It is further pleaded that the complainant has not given the intimation of the alleged damage to the phone and no claim has been filed by the complainant. Due to no intimation of the event, insurance company was deprived of opportunity to verify the facts. Therefore, this complaint is liable to be dismissed with costs on this ground alone. It is further pleaded that the answering OP has not indulged in the act of breach of trust, misleading and alleged unfair trade practices and there is no deficiency in service on the part of the answering OP No. 2 / insurance company.
On merits, the opposite party No.2 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Jashbir Kumar, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-5.
6. The opposite party No.1 has tendered into evidence affidavit of Aman Sood S/o Sh. Darshan Kumar Sood, (Proprietor of Sood Telecom) as Ex.OP-1/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/2 alongwith reply.
7. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Sh. Saurav Khullar, (Senior Executive & Authorized Signatory, Bajaj Allianz Gen. Ins. Co. Ltd., Chandigarh) as Ex.OP-2/A alongwith other documents as Ex.OP-2/1 to Ex.OP-2/2 alongwith reply.
8. Rejoinder not filed by the complainant.
9. Written arguments not filed by the parties.
10. Counsel for the complainant has argued that complainant had purchased one mobile hand set from opposite party No.1 on installments which was insured with the opposite party No.2. It is further argued that after 10 days of the purchase the mobile hand set fell down and stopped working and thereafter complainant had number of times visited the opposite party No.1 dealer and opposite party No.2 insurer but opposite parties had not settled the grievances of the complainant.
11. After filing of written reply proprietor of opposite party No.1 i.e. Sh.Aman Sood had appeared on 5-6 dates and thereafter he did not appear on each and every date of hearing and even at the time of final arguments. However, in the written reply has stated that opposite party No.1 has nothing to do with the insurance claim as same is to be settled by the opposite party No.2.
12. Counsel for the opposite party No.2 has argued that since no claim was lodged by the complainant as such complaint is pre-mature and is liable to be dismissed.
13. We have heard the Ld. counsels for the complainant and opposite party No.2 and gone through the arguments.
14. It is admitted fact that complainant had purchased mobile hand set Model No.A50 4GB(356129101953815) Blue of Samsung company from opposite party No.1 on 01.06.2019. It is further admitted fact that after making down payment of Rs.6284/- the remaining amount of Rs.11,716/- was to be paid by the complainant in installments. It is further admitted fact that opposite party No.1 had provided insurance of the said mobile after receiving Rs.1847/- as insurance premium. It is further admitted fact that mobile hand set of the complainant was damaged. The only disputed issue for adjudication before this Commission is whether the opposite party No.1 is liable to indemnify the loss for want of intimation.
15. Perusal of file shows that the said mobile hand set was insured with the opposite party No.2 vide Ex.C3. Although, there is no letter of intimation regarding loss to the mobile hand set and the opposite party No.2 has rejected the claim only on the ground that complainant had not lodged the claim with the opposite party No.2. Perusal of file further shows that opposite party No.2 has filed written reply on 02.12.2019 and had not made any efforts or made any offer to settle the claim and counsel for the opposite party No.2 has offered during arguments if the claim is lodged they are ready to settle the same. We are unable to understand why opposite party No.2 had failed to settle the claim for the last four years after filing of written reply and as to why the complainant has been left unattended, which compelled him to file the present complaint. Accordingly, failure to settle the claim even after filing of the complaint and receiving intimation through the complainant amounts to deficiency in service.
16. Accordingly, present complaint is partly allowed and opposite party No.1 is directed to repair the mobile phone of the complainant and the repair charges shall be reimbursed by the opposite party No.2 as per the policy Ex.C3. However, it is made clear that if claim is not settled and paid within 30 days from the date of receipt of copy of this order the opposite party No.2 shall be liable to pay the cost of the mobile i.e. Rs.18,000/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization.
17. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
18. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March 01, 2024 Member.
*YP*
