Delhi

North East

CC/97/2017

SHAKIR - Complainant(s)

Versus

Syska Gadget Secure - Opp.Party(s)

01 Jul 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 97/17

 

In the matter of:

 

	Sh. Shakir S/o Sh. Nasir Ahmad R/o H.No. 202, , Gali no. 4 Rajiv Gandhi Nagar, New Mustafabad Delhi-110094	Complainant
	Versus
1         2	Tanish Enterprises C-81/2, Shop No. 7 Main bus stop Bhajanpura, Delhi-110053   Syska Gadget Secure SSK Retail Pvt. Ltd 7 Akshay Complex, of Dhole Patel Road Pune - 411001	Opposite Parties

 

DATE OF INSTITUTION:  JUDGMENT RESERVED ON:     DATE OF DECISION      :

21.03.2017 01.07.2019 01.07.2019

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Shorn of unnecessary details, facts relevant for the disposal of the present complaint are that the complainant had purchased a mobile handset model Samsung S7 Edge bearing IMEI No.  357327072071026 from OP1 retail outlet / seller on 22.09.2016 for a sum of Rs. 54,400/- inclusive VAT vide Bill no. 2301/ Book no 024. At the time of purchase of the said mobile, the complainant also purchased Syska Gadget Secure Insurance protection plan from OP2 on payment of Rs. 2399/- to OP2 for the theft protection of the mobile in question from the shop of OP1. The subject mobile got stolen from the car of the complainant on 23.11.2016 for which FIR no. 0588/2016 u/s 379/356/34 IPC was registered by the complainant with PS Gokalpuri, North East Delhi on the same day. The complainant intimated OP2’s customer care of the theft from the mobile number of his brother and got his own stolen SIM blocked by the service provider on 24.11.2016 and took another SIM of the same number. The complainant has further submitted that the OP2 made verification call on the number from which the theft complaint was lodged i.e. complainant’s brother phone number on receipt of which call, the complainant’s brother told the officer of OP2 that the complainant’s mobile was stolen and that the complainant shall call OP2 for further details. However, to the shock of complainant, he was informed by the customer care of OP2 that his theft claim was rejected due to negative verification. The complainant, failing aggrieved at the unfair rejection of his claim, file and application dated 23.12.2016 before the mediation cell, Nand Nagri Delhi where the OP2 was summoned for 11.01.2017 and 30.01.2017 but it fail to appear on both dates. The complainant lodged a written complaint dated 03.02.2017 with OP2 for non settlement of his theft claim resisting the ground for rejection as “negative verification” and demanded early settlement. However, no action was taken by OP2 and lastly the complainant was constrained to file the present complaint against the OPs alleging negligence and deficiency of service and unfair trade practice causing mental and physical harassment, agony and financial loss and prayed for issuance of direction against the OPs to pay the sum insured i.e. value of the mobile phone Rs. 54,400/- alongwith 18% interest thereon in addition to Rs. 50,000/- towards mental harassment and agony and Rs. 11,000/- as litigation charges.
2. The complainant has attached copy of retail invoice issued by OP1 towards purchase of mobile, copy of insurance cover coupon issued by OP2 granting comprehensive coverage against physical / liquid damage, fire and allied perils, virus protection and theft protection, alongwith payment proof of Rs. 2,400/- paid by complainant through HDFC bank card, copy of FIR no. 0588/2016 dated 23.11.2016 lodged with PS Gokalpuri for theft of mobile in question, copy of SIM block receipt dated 24.11.2016, copy of new SIM issued, copy of complaint dated 23.12.2016 lodged by complainant with mediation centre Nand Nagri Delhi, copy of complaint dated 03.02.2017 by complainant to OP2 against wrongful rejection of his theft claim on grounds of negative verification alongwith postal receipt and track report for proof of service.
3. Notices were issued to OPs on 06.04.2017. OP2 was served on 17.04.2017 however none appeared on its behalf and was therefore proceeded against ex-parte 12.09.2017. On the said date, proprietor of OP1 appeared and received copy of the complaint and took time to file written statement. However, none appeared on behalf of OP1 thereafter despite opportunity granted and cost imposed and therefore OP1 too was proceeded against ex-parte vide order dated 20.02.2017.
4. Complainant filed evidence by way of affidavit and written arguments reiterating his grievance against the OPs and exhibited the documents relied upon / filed as Ex PW1/A to Ex PW1/J.
5. During the course of oral arguments, the complainant was put to a specific question of the precise role / culpability / cause of action against OP1 in the present case since no correspondence is made to OP1 or placed on record for seeking insurance claim for the stolen mobile of which it was a mere seller and was not even beneficiary of the consideration amount of Rs. 2399/- which as per complainant own admission was paid to OP2. The complainant did not come forth with any cogent explanation to make out a conclusive cause of action against OP1 in the present case.
6. We have heard the arguments addressed by complainant and have perused the documents placed on record on which perusal it is apparent that the OP2 had extended comprehensive gadget cover / insurance with regard to the subject mobile to the complainant on receipt of Rs. 2399/-. The subject mobile phone was duly insured with OP2 which is proven beyond doubt from material evidence placed on record by the complainant and has gone un-rebutted by OP2 due to its willful non appearance. 
7. In the present case since the subject mobile was duly insured with OP2 which failed to honor the theft claim of the complainant  on flimsy and frivolous ground of “negative verification” without according any opportunity / explanation for the same, we find OP2 guilty of deficiency of service and unfair trade practice as it was liable to pay the insurance claim amount to the complainant since OP2 had received consideration amount towards the premium for the insurance for insuring the said handset from the complainant but failed to discharge its contractual liability towards the complainant which in our view is act of deficiency of service and unfair trade practice.  
8.  We therefore direct OP2 as insurer to release the theft insurance cover claim  of the said mobile phone Rs. 54,400/- alongwith insurance premium amount of Rs. 2399/- totaling Rs. 56,799/- to the complainant. We further direct OP2 to pay compensation of Rs. 3,000/- towards mental agony and harassment suffered by the complainant and  Rs. 2,000/- towards cost of litigation to the complainant. No order is passed against OP1 seller for want of cause of action made out against it. Let the order be complied with by OP2 within 30 days from the date of receipt of copy of this order.                                 
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on 01.07.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member