Haryana

Panchkula

CC/103/2018

SH.NAVEEN DHIWAN - Complainant(s)

Versus

SYSKA GADGET SECURE - Opp.Party(s)

Mr.Amit Dudeja

05 Aug 2021

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

                                                              

Consumer Complaint No	:	103 of 2018
Date of Institution	:	30.05.2018
Date of Decision	:	05.08.2021

 

 

Sh. Naveen  Dhiman, son of Sh. Mohan Dhiman, resident of H.No.305, GH-77, Sector-20, Panchkula.

                                                                                   ….Complainant

Versus

1.      Syska Gadget Secure, Customer Care Executive, 4^th Floor, Sapphire Plaza, Plot No.80, S.No.232, New Airport Road, Sakore Nagar, Viman Nagar, Maharashtra.

         IInd Address

         Syska Gadget Secure, C/o Hot Spot, Sister Concern Deep Communication, SCO No.44, Sector-11, Panchkula.

2.      Hot Spot, Sister Concern Deep Communication, SCO No.44, Sector-11, Panchkula.

..….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:    Sh. Gagandeep Singh, Advocate for the complainant.

Sh. Mohit Tayal, Advocate for the OP No.1.

OP No.2 already ex-parte vide order dated 29.10.2018.

                          

ORDER

(Sh. Satpal, President)

1.               The brief facts of the present complaint are that the complainant had purchased I-Phone 6S Plus 16 GB Gold bearing no.353284072380309 for a sum of Rs.58,500/- from OP No.2. During the purchase, the authorized person of OP No.1 and the representative of Syska Gadget Secure assured to him that the Syska Gadget Secure, blanket cover for device for physical, accidental damage and other damages was obtained and on the allurements, paid the insurance amount of Rs.3,500/-. On 08.05.2017, the mobile phone of the complainant got damaged and broken when he was coming out of stadium after the cricket practice, stray dogs were barking on the gate of stadium while the complainant was holding I Phone 6S plus in right hand and on the left hand was holding cricket kit. Suddenly bike handle hit him from behind because stray dogs were barking at him and suddenly he increased his bike speed and due to imbalance his bike handle hit the right elbow of the complainant and firstly I-Phone slipped down from the hand and thereafter, complainant fell down on the road and the phone was broken out and thereafter, when the complainant informed the OP No.2 on the same day and also filled and submitted the Mobile Insurance Claim form on 09.05.2017. But due to some inadvertent reasons just to deny the insurance, the office of the Ops has repudiated the claim. He sent e-mail on 20-05-2017, a vague reply has been sent and lame excuse by pointing out some minor contradictions in the claim form statement, the claim has been rejected wrongfully. Thereafter, the complainant has sent a legal notice through registered letter dated 07-11-2017. But despite sending of the legal notice neither OPs No.1 or OP No.2 replied to the same.  Due to the act and conduct of the OPs, the complainant has suffered financial loss, mental agony and harassment. Hence, the present complaint.

2.               Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being frivolous and baseless; no locus standi; estoppel; the complaint is bad for non-joinder and mis-joinder of the necessary parties and the complainant has suppressed the material facts. On merits, it is stated that the insurance cover provided by National India Insurance Company Ltd the answering OP is only facilitator of the insurance scheme under name of Syska Gadget Secure. It is also stated that the complainant gave two different information to company about incidence firstly  at the time of intimation of incident he recorded in CMS that while walking one bike which was coming being dashed customer from back side because street dogs started chasing that bike and due to which customer fell down and from his hand mobile phone also fell down on the road and phone got damaged whereas in the declaration and claim form he states that due to the dash of handle of bike to his elbow his handset slipped  from his hand and fell down on the road, hence, case rejected by National Insurance Company. However, the answering OP had forwarded the claim to insurance company but insurance company had rejected the claim as per terms of insurance Thus, there is no deficiency in service on the part of the OP No.1 and prayed for dismissal of the present complaint.

                  Notice was issued to the OP No.2 through registered post (vide registered post No.Ch05477135IN on 22.09.2018) which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.2; hence, it was deemed to be served and thus, due to non appearance of OP No.2, he was proceeded ex-parte by this Forum vide its order dated 29.10.2018.

3.               Complainant was given sufficient opportunities to lead his evidence, despite last opportunity, complainant failed to led his evidence and on dated 20.05.2019, evidence of the complainant was closed by the order of this Commission. On the other hand Ld. Counsel for the OP No.1, tendered affidavit of Shri Pamod Mahadev Lakade, Authorized signatory in Leehan Retails Pvt. Ltd. at Pune Maharasthra as Annexure R-1/A along with documents Annexure R1/1to R1/4 and closed the evidence.

4.               We have heard the learned counsels for the complainant and OP No.1 and gone through the record minutely and carefully.

5.               It is evident that the mobile set I-Phone 6S Plus 16 GB Gold bearing No.353284072380309 got damaged on 08.05.2017 during the subsistence of the mobile insurance certificate(Annexure R-1/4)  and the OP No.1, who provided  the said mobile insurance certificate covering the risk of loss and damages on behalf of the National Insurance Company, was duly informed about the incident causing loss to the mobile set on 08.05.2017 itself and job-sheet(Annexure R-1/2) was issued in this regard. The complainant also submitted the declaration form narrating the incident causing loss to the set vide declaration letter Annexure R-1/1 on 09.10.2017. However, the National Insurance Company Ltd. repudiated the claim vide letter dated 16.10.2018(Annexure R-1/3) on the ground of concealment and mis-representation of facts and fraud by the complainant. The complainant had denied any concealment of facts and mis-representation by lodging the claim and invited our attention towards the email correspondence held between the complainant and OP No.1 between 20.05.2017 and 21.05.2017 requesting for acceptance of the claim. The OP No.1 has contested the claim by taking some preliminary objections in its written statement that the complaint is liable to be dismissed for non-joinder and mis-joinder of the necessary parties as insurance cover was provided by National India Insurance Company Ltd and the Op No.1 is only facilitator of the insurance scheme under name of Syska Gadget Secure. On merits, the grounds taken in the repudiation dated 16.10.2018 Annexure R-1/3 have been reiterated.  It has also been contended that OP No.1 forwarded the claim to National Insurance Company, which had rejected the claim as per the terms and conditions of the Insurance certificate and thus it has been contended that there is/was no deficiency on the part of the OP No.1.

6.               Insofar as the plea taken that the complaint is liable to be dismissed for non-joinder and mis-joinder for necessary parties is concerned, it may be mentioned here that the mobile set in question was admittedly got insured by OP No.1 vide mobile insurance certificate, which is available on record as Annexure R-1/4. It would be pertinent to mention here is that the aforementioned mobile insurance certificate Annexure R-1/4 words “M/s Leehan Retails Pvt. Ltd.”, is clearly mentioned and in the present complaint, written statement as well as affidavit Annexure R-1/A has been filed by Sh. Pamod Mahadev Lakade on behalf of M/s Leehan Retails Pvt. Ltd. Thus, there is close tie up between the OP No.1 and National Insurance Company. Moreover, no such record asking the national insurance company to honour the claim has been made available by OP No.1. Though, it has been pleaded in its written statement as well as affidavit that it has sent the claim to the insurance company. However, no such record recommending the acceptance of the claim is available on record. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. Hence, we find no force and substance in the plea that the complaint is bad for non-joinder and mis-joinder for the necessary parties. Moreover, version of national insurance company is available on record in the shape of repudiation letter dated 16.10.2018. Thus, we do not agree with the plea of the OP No.1.

7.               Now, coming to the merits of the case, we find that the national insurance company has repudiated the claim vide letter dated 16.10.2018 (Annexure R-1/3).

         The complainant while intimating the OP No.1 narrated the incident vide Annexure R-1/2 as under:-

As per cust said he was near the gate of the stadium and was walking and talking  on the phone, phone was in his right hand and cricket stuffs trolley was in his left hand…..  while walking one bike which was coming from behind dashed cust from backside because street dogs started chasing  that bike and due to which fell down and phone from his hand also fell down  on the road and phone got damaged(screen damage)”.

The declaration form(Annexure R-1/1) narrating the incident leading to the loss to the mobile set is reproduced:-

“Myself Naveen Dhiman S/o Sh. Mohan Lal Dhiman declares that on 08.05.2017 at around 11:30 a.m. I was exiting from Tau Devi Lal Stadium, Sector-3, Panchkula on my but after practicing my cricket practice as my house is walking distance from the stadium. Stray dogs were barking at the exit gate of stadium. While exiting  I was holding  my I-Phone  6S Plus in my right hand and in my left hand  I was holding my cricket kit bag. Suddenly the bike handle hit me from behind because stray dogs were barking at him and suddenly he increased his bike speed and due to imbalance his bike handle hit my right elbow and my I-Phone slips out of my right hand and it fell down on the road and it broke out”.

8.                  A minute perusal of the above would reveal that the incident leading to the damages to the mobile set occurred near the gate of the Tau Devi Lal Stadium, Sector-3, Panchkula and it occurred due to the barking of stray dogs which caused imbalance of motorcycle thereby dashing to the complainant. We find no mis-match in the description incident as mentioned in job-sheet Annexure R-1/2 and declaration letter Annexure R-1/1. It is well settled that no genuine claim can be ignored or rejected merely on some minor and insignificant variations in the narration of events.

It is a matter of common knowledge that even a prudent man in the ordinary course of nature while narrating a incident is bound to make some variations.

9.               In our considered opinion, there has been high handedness and unfairness on the part of OP No.1 while declining a valid and justified claim on flimsy ground. Needless to mention here that no litigant/ consumer approaches the court/Tribunal out of his choice but is compelled to invoke jurisdiction of the Court/ Tribunal only when he gets no response pertaining to his complaint from the OP. Therefore, we conclude that there has been lapse and deficiency on the part of OP No.1; Hence, the complainant is entitled to relief. However, no lapse or deficiency has been found on the part of OP No.2.

10.             Now, coming to relief, we find that the complainant has claimed the insured sum of Rs.58,500/- along with a sum of Rs.1,00,000/- and Rs.30,000/- on account of mental agony, physical harassment and litigation charges respectively.

11.             The Ld. counsel for the OP No.1 has denied the entitlement of the complainant to the payment of alleged sum of Rs.58,500/-. It is contended that as per terms and conditions of Insurance Policy Annexure R1/4, refund of invoice value is not permissible without making 50% depreciation of the repair invoice value. Although, there is no repair invoice on record, but keeping in view the facts and circumstances of the case as also the fact that the phone in question was totally damaged and further the event of damages to the mobile in question relates to the year 2018, we deem it expedient to direct the opposite party to make the payment of Rs.29,250/- i.e. after making a deduction of 50% of invoice value i.e. Rs.58,500/-. Therefore, we direct the opposite party No.1 to make the payment of Rs.29,250/-to the complainant. Further, a lump sum amount of Rs.5,000/- on account of mental agony, physical harassment and litigation charges is also ordered to be paid to the complainant by the OP No.1.

12.             The OP No.1 shall comply within a period of 45 days from the date of communication of copy of this order failing which the awarded amount of Rs.29,250/- shall carry an interest @ 9% per annum w.e.f. the date of this order till its realization. In case of non compliance of this order, the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, against the OP No.1. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.   

 

Announced on: 05.08.2021

 

           Dr.Sushma Garg          Dr. Pawan Kumar Saini      Satpal

                    Member                  Member                                President

 

Note: Each and every page of this order has been duly signed by me.

 

                                              Satpal

                                             President