BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 31^st DAY OF OCTOBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) claiming a sum of Rs.43,160/- together with interest under the insurance policy and compensation of Rs.1,00,000/- along with cost of proceedings.

2. The brief averments made in the complaint are as under:

The complainant is a Engineer by profession working at Bangalore.  That the complainant had purchased a Samsung Galaxy S4 mobile phone on 24.09.2013 for Rs.43,160/- at Devendra Telecom, Gandhi Bazar Main Road, Basavanagudi, Bangalore.  The said handset is covered under the mobile insurance policy No.421703/48/2012/816 with OPs for a period of 12 months w.e.f 29.04.2013.  That on 15.08.2013 at about 8.30 p.m while the complainant had stopped his car near Udupi Garden signal two unknown persons came there and tried to start conversation with him.  At that time one of them committed theft of his handset regarding which the complainant lodged complaint before Mico Layout Police on 17.08.2013.

On 19.08.2013 the complainant approached 2^nd OP and submitted relevant documents to claim the insurance amount.  Though the OP-2 issued acknowledgement for having received the documents but repudiated his claim orally on 03.10.2013 after repeated visits by the complainant and directed the complainant to approach OP-1.  That the complainant approached OP-1 on 01.10.2013 and produced all the relevant documents including the copy of the FIR.  After lapse of two months on 05.12.2013 OP-1 repudiated the claim of the complainant on the following grounds.

1. Incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect set-up and negligence.

2. Loss of mobile handset due to theft from vehicle unless the vehicle is of fully enclosed saloon type having at the time of theft all the doors/windows and other openings securely locked and properly fastened.

That the view taken by OP-1 is untenable.  Though the mobile is covered under the policy issued by the OP-1, the OP-1 has repudiated the claim without assigning just and proper reasons.  The OP-2 also repudiated the claim of the complainant without proper reasons after making him wait for two months.  Since, the said mobile handset is covered under the insurance policy both OPs are liable to compensate the complainant.  The conduct of the OP amounts to deficiency of service on their part.

          For the aforesaid reasons, the complainant pray for an order directing the OPs to pay him a sum of Rs.43,160/- being the value of the handset under the insurance policy along with interest @ 24% p.a and compensation of Rs.1,00,000/- for deficiency in service on their part together with cost of the proceedings.

3. Though OP-2 appeared through one of their official but failed to file any version.

OP-1 appeared through their advocate and filed version contending in brief as under:

That the policy issued to the complainant is subject to stipulation like exclusions, conditions, warranties and limitation.  The complainant is required to comply with all the information and documents in order to process the claim.  The complainant has to prove that on 15.08.2013 at about 8.30 p.m while driving his Car near Udupi Garden signal two unknown persons came and try to converse with and mobile was stolen by them.  The complainant is required to safeguard and take care of the property as though it is uninsured.  The policy specifically excludes any payment of compensation if the loss of property is caused by incorrect storage poor care, careless and negligent in safeguarding the property.  The complainant was careless and negligent in allowing a stranger to crane his neck into the window of the Car and snatching the mobile.  The complainant has created the story of theft in order to claim the amount illegally.  The claim is not payable for the negligent or misconduct of the complainant.  The claim of the complainant cannot be allowed in view of the principle laid down by the Hon’ble Supreme Court in a case reported in 2013 (2) CPR 315 (SC).  Without prejudice to what is stated supra if the claim is allowed for any reason the complainant is entitled to claim as per clause.  If the loss occurred within 150 days from the date of purchase 30% of the cost is liable to be deducted.  There is no deficiency on the part of this OP.

For the aforesaid reasons, OP-1 prays for dismissal of the complaint.

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

5. The complainant to substantiate the allegations made in the complaint filed his affidavit in lieu of oral evidence.  Similarly the OP-1 filed affidavit evidence of their Deputy Manager in lieu of oral evidence.  The complainant filed his written arguments and also submitted oral arguments.  Also heard the advocate for OP-1.

 6. Perused the allegations made in the complaint, the averments made in the version of the OP, the sworn testimony of both the parties, the documents filed by both the parties and other materials placed on record.

7. Our answer to the above points are as under:

REASONS

8.  It is not in dispute that the complainant had purchased a Samsung Galaxy S4 mobile on 29.04.2013 for Rs.43,160/- and got it insured with OP-1 through OP-2 on the same day and the policy was for a period of 12 months w.e.f 29.04.2013.  The complainant has produced relevant documents regarding the purchase of the handset as well as the copy of the policy.

9. As alleged by the complainant on 15.08.2013 at about 8.30 p.m while he was waiting at Udupi Garden traffic signal two unknown persons came to him and tried to drag him into a conversation and during the process one of them lifted his handset and ran away and immediately thereafter he lodged a complaint with Mico Layout Police Station.  The copy of the complaint lodged to the police is produced.  Initially the complainant lodged his claim with OP-2, the Insurance Brokers who are responsible for insuring the said handset.  In their letter dated 11.04.2014 submitted to the Court through their official.  OP-2 contended that they are only ‘Insurance Brokers’ providing insurance service and insurer is the Oriental Insurance Company Ltd., and decision on approval or rejection of the claim is solely at the discretion of Insurer as per terms and conditions of the policy.  Therefore, OP-2 claimed that they are not liable to answer the claim of the complainant.

10. However, it is pertinent to note that OP-2 as per the acknowledgment dated 17.08.2013 produced by complainant received theft report from the complainant along with relevant documents.  OP-2 thereafter made the complainant to run to their office several times finally and refused for entertain his claim and after lapse of two months directed the complainant to approach OP-1 for the claim.  If at all OP-2 was not liable to entertain the claim of the complainant they ought to have directed the complainant to approach OP-1 at the first instance instead of making him to wait for two months, that too after his repeated visits and persuasion.  This conduct of OP-2 certainly amounts to deficiency in service and also unnecessary harassment to the innocent complainant.

11. As per the direction of OP-2, the complainant has approached OP-1 on 01.10.2013 and provided them with the necessary documentation including copy of F.I.R.  Thereafter, the complainant repeatedly visited the OP-1 to ascertain the status of his claim.  After lapse of two months i.e., on 02.12.2013 OP-1 repudiated the claim of complainant citing the exclusion clause.  The exclusions stated by the OP-1 in their letter dated 17^th September 2013 are as under.   

1. Incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect set-up and negligence.

2. Loss of mobile handset due to theft from vehicle unless the vehicle is of fully enclosed saloon type having at the time of theft all the doors/windows and other openings securely locked and properly fastened.

12. Now it has been seen as to whether the OP-1 is justified in repudiating the claim of the complainant citing exclusions as mentioned in their letter dated 17^th September 2013.  For this purpose, it is necessary to refer the copy of the complaint dated 17.08.2013 filed by the complainant before the Mico Layout Police Station.  For better understanding the circumstances leading to the theft of the handset the relevant portion of the complaint is extracted below;

“¢£ÁAPÀ:15.08.2013 gÀAzÀÄ 8.30 p.m £À°è £Á£ÀÄ “Udupi garden” signal £À°è PÁgÀ£ÀÄß drive ªÀiÁrPÉÆAqÀÄ ºÉÆÃUÀÄvÁÛ EzÉÝ.  D ¸ÀªÀÄAiÀÄzÀ°è ªÀÄ¼É §gÀÄwÛzÀÄÝ ªÀÄvÀÄÛ vÀÄA¨Á Traffic EzÀÄÝzÀjAzÀ £Á£ÀÄ PÁgÀ£ÀÄß signal £À°è ¤°è¹zÉÝ.  D ¸ÀªÀÄAiÀÄzÀ°è M§â C¥ÀjavÀ §AzÀÄ vÀ£Àß PÁ°UÉ PÁgÀÄ vÀUÀ°zÉ JAzÀÄ £À£ÀߣÀÄß ªÀiÁvÀ£Ár¸À®Ä DgÀA©ü¹zÀ.  D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ £À£Àß left window ªÀ£ÀÄß 30% open ªÀiÁr K£ÀÄ JAzÀÄ «ZÁj¸À¯ÁgÀA©ü¹zÁUÀ, ªÀÄvÉÆۧ⠣À£Àß Right window side §AzÀÄ £À£ÀߣÀÄß ªÀiÁvÀ£ÁqÀ®Ä ¥ÀæAiÀÄwß¹zÀ £Á£ÀÄ D PÀët §®UÀqÉUÉ wgÀÄVzÁUÀ, left side £À°è EzÀÝ PÀ¼Àî £À£Àß ¥ÀPÀÌzÀ¯Éèà EzÀÝ ªÉƨÉʯïUÉ PÉÊ ºÁQ PÀ¼ÀîvÀ£À ªÀiÁqÀ®Ä ¥ÀæAiÀÄwß¹zÀ.  D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ CªÀ£À PÉÊ »rzÁUÀ CªÀ£ÀÄ eÉÆÃgÁV £À£Àß PÉʬÄAzÀ QvÀÄÛPÉÆAqÀÄ, PÀ¼ÀîvÀ£À ªÀiÁr ¥ÀgÁjAiÀiÁVzÀ D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ £À£Àß PÁ®ÄUÀ¼À£ÀÄß Break ªÉÄÃ¯É EnÖzÀÝ PÁgÀt vÀPÀët CªÀ£À£ÀÄß chase ªÀiÁqÀ¯ÁUÀ°®è.”

13. It is apparent from the relevant portion of the complaint extracted above, the complainant was driving his Car fully closing the windows as it was raining.  None of the windows or doors were open at the relevant time when the complainant had stationed his Car at Udupi Garden traffic signal, at that time one of the miscreant has come towards his left window and tried to talk to him on the ground that his Car has run over his leg.  The complainant has opened the left side window around 30% and was talking to the said person and at the same time another miscreant with an intention to divert the attention of the complainant has come towards right side window of the car and tried to speak to complainant and when the complainant turned towards right side window the miscreant who was at the left side window of the Car pushed his hand inside the Car and picked up the handset at which time the complainant has made all the efforts to catch the hand of the miscreant.  However, he managed to lift the handset and ran away.  Since, the complainant was in the traffic signal he could not stop the Car there and chase the thief.  Looking to the manner in which the theft has been committed one can safely conclude that the complainant has made his best efforts to save his property.  In fact, the complainant was driving the Car closing all the doors and windows properly.  The above said miscreant only with an intention to commit the theft of expensive handset of the complainant have managed to divert his attention and committed theft.  Therefore, by any stretch of imagination it cannot be said that either the complainant was careless in maintaining the handset or he had not properly closed the windows and doors of the Car so has to fall under the exclusions.  Therefore, we are of the considered opinion that OP-1 is not at all justified in repudiating the claim of the complainant citing exclusions.

14. In the given facts and circumstances of the case, OP-1 is liable to compensate the complainant for the theft of the said handset under the terms and conditions of the Insurance Policy.  Admittedly, the policy was in force on the date of the incident since the handset has been lost nearly four months from the date of insurance, the excess clause as mentioned in the policy comes to play.  As per the excess clause, 30% the cost of the handset is liable to be deducted from the cost of the handset.  Therefore, the complainant is entitled to 70% of the cost of the mobile set.  The conduct of OPs in repudiating the claim of the complainant without valid reasons amounts to gross deficiency in service on their part.  The OPs have made the complainant to run to their office several times and ultimately refused to entertain his claim without there being any valid cause.  This must have put the complainant to lot of mental agony, harassment and hardship.  Therefore, the OPs shall have to be directed to pay 70% of the cost of the handset together with interest @ 12% p.a from the date of claim till the date of realization.  Further they shall have to be directed to pay compensation of Rs.25,000/- to the complainant for the deficiency in service on their part resulting him mental agony, hardship and inconvenience together with litigation cost of Rs.3,000/-.  The order could not be passed within the stipulated time due to heavy pendency.

15. In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  The OPs are directed to pay Rs.30,212/- to the complainant together with interest @ 12% p.a from 19.08.2013 till the date of realization.  Further the OPs are directed to pay compensation of Rs.25,000/- to the complainant for the deficiency in service on their part together with litigation cost of Rs.3,000/-.

The OPs shall comply the order passed by this Forum within six weeks from today.

          Send the copy of the order to both the parties free of costs.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 31^st day of October 2015)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 04.12.2014.

1. Sri. Kiran Kumar K.V,

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party-1 dated 04.12.2014.

1. Sri.R.S Avasy   

Document produced by the Opposite party-2:

MEMBER                            MEMBER                       PRESIDENT

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