BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

Complaint No.268 of 2016.

Date of Instt.:17.10.2016.

Date of Decision: 15.05.2017.

Sanjay Ahuja son of Shri Sunil Kumar, resident of Green Park, Fatehabad Tehsil & District, Fatehabad.

...Complainant

     Versus

1.Ssk Infotech Private Limited Plot No.521, Udyog Vihar, Phase-5, Gurgaon (Haryana)-122016, Ph.No.0124-4280703 through its Claim Manager.

2.Ssk Private Limited 7-Akshaya Complex, Office Dhole Patil Road, Pune-411001 through its Manager/Director, Contact No.02040131000.

3.M/s iQor Global Services India Private Limited Shop No.5, Ground Floor, Suncity Mall, Delhi Road Hisar District Hisar through its proprietor.

4.M/s R.K.Stickers and Mobile Shop No.14, Palika Bazar Fatehabad Tehsil & District Fatehabad through its proprietor.

..Opposite Parties.

Before:       Sh.Raghbir Singh, President.

                   Sh.R.S.Panghal, Member.              

                   Smt. Ansuya Bishnoi, Member.

Present:       Complainant in person.

                   Sh.Raj Kumar Godara, Advocate for OPs No.1 & 2.

                   OP Nos.3 & 4 exparte.

ORDER

                   The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs) with the averments that he had purchased a mobile Apple I Phone-6 bearing IMEI No.352091071210200  for a sum of Rs.51,500/- from OP No.4 vide Invoice No.1688 dated 14.08.2015. The mobile in question was insured with OP Nos.1 & 2 through OP No.4 vide coupon scratch code No.75602273 Bar Code No.29383899 for a period of one year. It has been further averred that on 26.07.2016 when the complainant was going to his home on motor cycle then all of a sudden he fell down on the road and the mobile handset also got damaged. The complainant intimated about the incident to the OP Nos.1, 2 & 4 and thereafter got deposited the aforesaid mobile in the office of OP No.3 on 28.07.2016 vide case No.50021514 dated 28.07.2016.  It has been further averred that the mobile phone was under warranty; therefore, OP No.3 assured that the mobile phone would be repaired and its display would be changed but thereafter the complainant visited the OP No.3 and also requested the OP Nos. 1 & 2 to make the payment of the claim about but they lingered on the matter on one pretext or the other and lateron refused to replace the display of the mobile by stating that in the bill name of the complainant has been mentioned as Sanjay Ahuja and in the ID the name of the complainant has been mentioned as Sanjay Kumar. The complainant asked the Ops that he is ready to give undertaking/affidavit but all fell on deaf ears, therefore, there is deficiency in services and unfair trade practice on the part of the OPs. Hence, this complaint. In evidence, the complainant has tendered his affidavit as Annexure C1 to Annexure C5.

2.                On notice, OP Nos.1 & 2 appeared and contested the complaint of the complainant by filing joint reply wherein it has taken several preliminary objections such as locus standi, cause of action, estoppal, maintainability, non-joinder of necessary parties as the insurance scheme was facilitated by Leehan Retails Private Limited, therefore, the complainant was having a contract with Leehan Retails Private Limited and had no concern with OP Nos. 1 & 2.  It has been further submitted that when the complainant was riding his bike then all of a sudden one another bike came and dashed in the bike of complainant, therefore, the complainant along with mobile fell on the road and the handset got damaged. The complainant had intimated the incident to M/s Leeann Retails Pvt. Limited (Syska Gadjet Secure) but it has not been made a party to the present complaint. Other pleas made in the complaint have been controverted and prayer for the dismissal of the complaint has been made. OP Nos. 3 & 4 did not appear before this Forum despite notice, therefore, it were proceeded against exparte. In evidence, the OP Nos. 1 & 2 have tendered affidavit of Sh.Amar Deep Malik Annexure RW1/A besides documents as Annexure R1 & Annexure R2.

3.                We have heard the complainant and learned counsel for OP Nos. 1 & 2 and have gone through the case file carefully.

4.                Fact regarding purchasing of hand set from OP No.4 (Annexure C3) duly insured by OP Nos.1 & 2 (Annexure R2) is not disputed. The complainant has come with the plea that the mobile phone got broken during the subsistence of insurance period, which was valid for one year, but the Ops did not indemnify the loss suffered by him.  The sole ground of the OP Nos.1 & 2 is that the complainant had intimated M/s Leeann Retails Pvt. Limited (Syska Gadjet Secure) but it has not been made a party to the present complaint, therefore, present complaint is bad for mis-joinder and non-joinder of necessary party because the Op Nos. 1 & 2 have no concern with the said M/s Leehan Retails Pvt. Limited.  The complainant has specifically mentioned in his complaint due to difference in the name mentioned in the bill (Sanjay Ahuja) and I.D. Proof (Sanjay Kumar) the Op Nos. 1 & 2 have refused to indemnify the loss which suffered during the subsistence of the policy. It is strange enough that when the complainant had given his consent to give undertaking/affidavit that Sanjay Ahuja and Sanjay Kumar is one and the same person (complainant) but despite that the Op Nos. 1 & 2 did not honour the claim which has not been proved otherwise by OP Nos. 1 & 2. Annexure C4 clearly depicts that mobile handset was Physically damaged (Iphone display is physical damage and dent/bent on enclosure)  and this document has been issued by Op No.3, therefore, it is very well established that the phone was not in working condition. It is worthwhile to mention here that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon’ble Apex Court in their judgements from time to time and is aimed at providing for better protection of the interests of the consumers as defined in the preamble to the Act itself but despite that the insurance companies are having tendencies to avoid the genuine claims on one pretext or the other and this is main reason of increasing of litigation between the insured and insurance companies.  The ground taken by the Op Nos. 1 & 2 that it had no contract of insurance of mobile with the complainant and M/s Leehan Retails Pvt. Limited is the facilitator of the mobile insurance facilities but it has not been made as a party to the complainant, therefore, present complaint is bad for mis-joinder and non-joinder of necessary party is not tenable because (Annexure C2) coupon scratch card was issued by OP Nos. 1 & 2 and it is also not disputed that premium was paid to them by the complainant, therefore, at this stage it cannot avoid its liability by stating that M/s Leehan Retails Pvt. Limited is solely responsible for the mobile insurance. The complainant has been able to prove his case against Op Nos. 1 & 2, therefore, complaint against Op Nos. 3 & 4 stands dismissed.

5.                          Keeping in view the above facts and circumstances, present complaint is hereby allowed with a direction to the Ops No.1 & 2 to pay the billed amount Rs.51,500/- (Annexure C3) to the complainant after making necessary deduction of 10 % as deprecation charges (as mentioned in Step No.5 of Annexure R2) along with interest @ 7 % per annum from the date of filing of this complaint till its realization. This order should be complied within a period of 30 days from the date of receipt of this order.  Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.

Announced in open Forum.

Dated: 15.05.2017.

                                                                   (Raghbir Singh)

                                                                   President,

(Ansuya Bishnoi)      (R.S.Panghal)            Distt.Consumer Disputes                     

   Member                      Member                      Redressal Forum, Fatehabad.