BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.
Complaint Case No.25/ 2017.
Date of Instt.24.01.2017.
Date of Decision:13.06.2018
Manoj Kumar son of Nanak Chand, Resident of Jagiwanpura, Fatehabad, Tehsil and Distt. Fatehabad.
... Complainant.
Versus
1.Ssk Infoteh Private Limted, Plot No.521, Udyog Vihar, Phase-5, Gurgaon (Haryana)-122016 through its Claim Manager.
2.Ssk Private Limited, 7-Akshaya Complex, Office Dhole Patil Road, Pune-411011 through its Manager/ Director.
3.M/s R.K.Stickers & Mobile Shop, Shop no.14, Near Palika Bazar, Fatehabad Tehsil and Distt. Fatehabad, through its Proprietor.
4.Technominds Mobile, Shop No.106, Mobile Market, Palika Bazar, Fatehabd, Tehsil and Distt. Fatehabad through its Proprietor.
5.Leehan Retails Private Limited, 4, SSK Saphire Plaza, Pune Airport Road, Near Symbosis College Pune-411014 through its Manager /Director.
6.The New India Assurance Company Limited, Branch Office, Fatehabad through its Branch Manager with which the mobile in question was insured (Policy was issued by Branch Officer Mumbai)
...Respondents/Ops.
Complaint U/s 12 of the Consumer Protection Act, 1986.
Before: Sh.Raghbir Singh, President.
Sh.M.K.Khurana, Member.
Present: Sh.Kaushal Mehta, Counsel for the complainant.
Sh. Raj Kumar Godara, Counsel for the Ops No.1, 2 and 5.
Sh.U.K.Gera, Counsel for OP the No.6.
Ops No. 3 and 4 already ex-parte.
ORDER:
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the opposite parties (hereinafter to be referred as Ops) with the averment that he had purchased a mobile handset make Gionee F103 bearing EMEI No.8678655021088792 and 8678655024688799 from OP No.3 vide invoice No.2202 dated 17.10.2015 for an amount of Rs.10,000/-. At the time of sale of the above said handset, it was told by the OP No.3 that the complainant can get the aforesaid mobile handset insured against any mis-happening like damage, theft of mobile, snatching of mobile etc. The insurance company will pay the total sum assured of the aforesaid mobile. On the assurance of the Ops, the complainant got insured the above said mobile handset from OP No.3 under the insurance company of Ops No.1, 2 and 5 vide Coupon Scratch Code No.66725922, Bar Code No.44441950 having validity of one year. Thereafter the complainant was using the above said handset, but on 26.02.2016, at around 3.00 p.m., when the complainant was talking on the 2nd floor of his house, the aforesaid mobile phone fell down on account of slipping and as such the mobile phone in question was totally damaged and the screen of the mobile was also totally damaged. Upon this, the complainant gave information regarding occurrence and damage of mobile to Ops No.1 and 2 on 27.02.2016 on the Customer Care vide complaint No.160ZZ799Z.
2. It is further submitted that the complainant was instructed to deposit the handset with Op No.4 and accordingly on 27.02.2016 vide job card No.16955 the handset in question was deposited by the complainant with Op No.4. At that time, it was assured by the Ops that the claim of the damaged mobile will be settled very soon. However after keeping the mobile by OP No.4 for a few days, the said mobile of the complainant was returned by stating that the mobile of the complainant is not under warranty and as such he is not entitled for any insurance claim. Thereafter, the complainant requested to Ops several times for making payment of insurance claim and also sent the e-mail on the address of Ops no.1 and 2, but all in vain.
3. It is further submitted that the above said act on the part of Ops amounts to deficiency and unfair trade practice on the part of Ops in rendering service to the complainant. Hence, the present complaint.
4. On being served Ops No.1,2 and 5 appeared through their counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, locus-standi estoppel, mis-joinder and non-joinder of necessary parties etc., have been raised.
5. In reply on merits, it is submitted that as per the policy documents the contract regarding insurance under Syska Gadget Secure Scheme is facilitated by Leehan Retails Private Limited and the insurance cover provided by the New India Assurance Co. Ltd. It is further submitted that Ops no.1 and 2 have no concern with the alleged insurance. It is further submitted that the complainant had intimated to the answering Ops regarding the incident dated 26.02.2019 on 27.02.2016. After receiving intimation Op No.5 had allotted CIN No.1602279992 to the complainant immediately on 27.02.2016 and the claim was forwarded to the insurance company as per terms and conditions. It is further submitted that the insurance claim has been rightly rejected by the insurance company as the damage to the unit has been caused on account of negligence and ignorance on the part of the complainant himself. It is also further prayed that the present complaint may be dismissed against the answering Ops being devoid of any merits.
6. Op No.6 also resisted the complaint by filing a written statement wherein various preliminary objections with regard to cause of action, maintainability, territorial jurisdiction etc., have been raised.
7. In reply on merits, it is submitted that the complaint has given false and fabricated facts regarding the occurrence. The damage to the handset was due to negligence of the complainant himself as he did not take proper care. Such negligence is covered by the exclusion clause of the terms and conditions of the policy. It is further submitted that insurance is a contract and both the insurer and insured are bound by the terms and conditions of the insurance policy. The claim is to be settled as per terms and conditions of the policy. Since, the device was not properly handled by the complainant and it slipped from his hands on account of carelessness and negligence of the complainant. It is also further submitted by the OP No.6 that till date regarding the occurrence no information was given to OP No.6 except a notice from this Forum. Therefore the complainant has no cause of action to file the present complaint and as such the same is liable to be dismissed against Op No.6 being devoid of any merits.
8. Despite proper service Ops No.3 and 4 did not appear before this Forum and as such they were proceeded ex-parte vide order dated 01.03.2017.
9. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Exhibit CW1/A and the documents as Ex.C1 to C3 and closed the evidence. On the other hand, the learned counsel for the OPs tendered in evidence affidavit of Sh. Karan Singh, Divisional Manager in evidence as Ex. OPW1 on behalf of Ops alongwith document as Annexure R1 and closed the evidence.
10. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record of the present case. It is not disputed that the mobile handset in question was purchased by the complainant from OP no. 3 on 17.10.2015 for an amount of Rs. 10,000/-. It is also not disputed that OP no. 6 had issued insurance of the abovesaid mobile vide Coupon Scratch code No. 66725922 having a validity of one year. It is also not disputed that the mobile handset in question was damaged during the subsistence of the insurance policy. The insurance claim of the complainant has been repudiated by the OP no. 6 vide repudiation letter dated 31.3.2017 (Annexure D-3) on the ground that the handset in question was damaged on account of negligence/ignorance on the part of complainant and as such the case of the complainant for payment of insurance claim does not fall within the purview of the policy.
11. After examining the facts and material placed on record, we are of the opinion that the abovesaid ground taken by the OP no. 6 for repudiating the insurance claim of the complainant is not tenable. We are of the opinion that possibility of slipping of the mobile handset accidentally from the hand of the complainant cannot be ruled out. Therefore, it cannot be certainly held that the mobile had fell down on the ground on account of negligence on the part of the complainant. Since the OPs have obtained insurance premium and accidental damage is covered under the policy as such in the present case, we are of the opinion that the complainant has been able to prove deficiency on the part of OP No.6 in rendering service to him.
12. The present complaint is accordingly allowed against OP no. 6 and he is directed for making a payment of insurance claim to the complainant after making deductions as per policy of insurance applicable in the present case. The OP no. 6 is also further directed for making a payment of Rs. 3,000/- to the complainant on account of compensation and litigation charges. The present order be complied with within a period of 45 days, otherwise the payable insured amount shall carry an interest at the rate of 6% per annum. No deficiency is proved against OP No.1 to 5.Copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.13.06.2018
(Raghbir Singh)
President
(M.K.Khurana) District Consumer Disputes
Member Redressal Fourm,Fatehabad
