By Smt.  Beena. M, Member:

Brief facts of the case:- The complaint is filed by the complainant under section 12 of the Consumer Protection Act.  The case of the complainant is that he had purchased a Mobile phone Model SAMSUNG J7 PRO on 04-11-2017 from the opposite party No.2’s show room at Kalpetta. The price of the mobile phone was Rs.20,900/-. The complainant paid Rs.6,966/- by cash to the 2^nd opposite party andbalance amount will be paying as loan from the 2^nd opposite party. The insurance policy from the 2^nd opposite party for the period from 04-11-2017 to 03-11-2018 vide policy number OG-18-1503-9931 -00003875,will cover all damages and others to the Mobile phone.  The 1^st opposite party was represented to be the implementing agency of the policy for and on behalf of 2^nd opposite party. The policy premium amount was Rs.2,360/- that amount was added to the balance amount for the mobile phone. After that the 1^st opposite party deducted the monthly installment of Rs.2,358 from the complainant’s bank account of State Bank of India, Kainatty Branch. On 16-02-2018 the mobile phone fell down the floor and got damaged, then the complainant contacted the 2^nd opposite party.  The 2^nd opposite party took the phone and that was sent to the Samsung  Service Centre, for servicing . Then the 2^nd opposite party has instructed the complainant to come after one week, and they promised to the complainant that the service charge could not be calculated. Thereafter complainant approached the 2^nd opposite party several times to take back to the phone. The second opposite party asked to pay the repair charge of the Mobile phone.  Then the complainant contacted the agent of the 1^st opposite party, who informed to the complainant that the repair charge will be paid at the 2^nd opposite party’s shop and then the amount will be reimbursed through complainant’s bank account. Then the complainant paid Rs.4,554/- for the repair charges of the mobile phone to the 2^nd opposite party on 29-03-2018 and the mobile phone was return to the complainant. After that the complainant contacted  the 1^st opposite party through e mail and their agent’s office at Kalpetta several times, but they did not respond and then the complainant contacted the 2^nd opposite party also. Anyway the complainant has approached the second opposite party more than ten times but all were in vain. Further complainant undergoes severe mental agonies and physical hardship due to the deficiency of service of the opposite parties. Hence this petition.

            2. Both opposite parties were served notices and entered appearance, filed separate versions and contested the case.

3. As per the version filed by the first opposite party the  petition is not maintainable but they admitted the Policy issued to the complainant for his mobile phone. It is submitted that the claim was closed for non submission of documents and non-co-operation of the complainant. The Insured was unable to comply with the shortfall of the documents despite of repetitive requests. And  he  further contended that the insured, the complainant here in has not taken reasonable care which is breach of policy terms and conditions.  The complainant failed to produce the Invoice towards the repair of insured asset. It is not correct to say that the policy cover all damages. In this case the damage was caused due to the mistake from the part of the complainant. The complainant was using the phone and suddenly someone pushed the complainant from behind and so the mobile fell  down from the complainant’s hand and got damaged. If the  complainant had taken utmost care to use the mobile the damage would not be caused. After the incident the complainant has not approached this opposite party regarding the said damage. Moreover that the complainant has not produced any concerned documents before this opposite party also. Hence no deficiency in service have been committed by these opposite parties. As per the rule, within 30 days of damage should be informed this opposite party. This opposite party has not received any information regarding the same. Hence the complainant is not entitled to get an amount of Rs.4554/- and interest and any loss, a prayer for dismissal of the complaint has been made.

4. The contention of the 2^nd opposite party is that he is an  unnecessary party in this complaint and the complainant wrongly added him as party with ulterior motive only to harass him. He admitted the purchase of the mobile phone. He stated that the complainant firstly approached to the office staff of the 1^st opposite party, the insurance company and he directly enquired the terms and conditions and after full satisfaction he had supplied all necessary documents and then purchased the phone.  The second opposite party is only a seller and he had no responsibility regarding insurance policy or service of the mobile phone. The complainant never approached this opposite party with the damaged mobile phone.

There is no manufacturing defect also.  Hence the complainant is not entitled to get any relief from the 2^nd opposite party.       

5. On perusal of complaint, versions and documents the Forum raised the following points for consideration:-

   1. Whether the complainant is entitled to get reimbursement from the 1^st

        opposite party?

  2.  Whether the 2^nd opposite party is a necessary party in this case?

  3.  Whether there is any deficiency of service happened from the part of

        opposite parties?

  4.  Whether the complainant is entitled to get any amount as compensation?

              5.  Relief and cost.

6.  Point No. 1 to 4 :-  For the sake of convenience and brevity points No.1 to 4 are considered together.

            7. To substantiate the case of the complainant he produced 4 items of documents along with the complaint.  Complainant filed chief affidavit and he was examined as PW-1 and Exts. A-1 to A4 marked and thereafter Exts.A-5 to A-7 also marked. From the side of the opposite party he adduced oral evidence before the Forum and the 1^st opposite Party  had not adduced oral or documentary evidence. 

8. On going through the available records and submissions there is no dispute regarding the purchase of Mobile phone and issuance of insurance policy to the mobile phone. The complainant produced purchase bill, insurance policy, claim form, repair tax invoice, loan repayment bills and e mail copy.  The dispute put forwarded by the 1^st opposite party, the insurer is that the complainant had not approached before the 1^st opposite party with a claim of reimbursement.  Ongoing through the available records and considering the circumstances of the case it cannot be believed that the complainant had not approached the 1^st opposite party and demanded the insurance amount.    Moreover nothing brought out by the 1^st opposite party to rebut the claim of the complainant. 1^st opposite party not adduced any oral or documentary evidence to substantiate his case.  1^st opposite party had not denied the Ext. A-3 Policy claim and the only allegation is that the complainant not produced any relevant documents for considering his claim.  Even if the complainant  had not submitted any supporting documents at the time of sending the claim form the 1^st opposite party could intimate that defect to the complainant. In this case the 1^st opposite party had not produced any documents to show whether the claim of the complainant had been properly considered and due to insufficiency of documents they denied the claim.   

9.  As the insurer, the 1^st opposite party is having an obligation to consider the complainants claim properly.  Here the 1^st opposite party failed to prove his case  and the complainant has proved his case.    From the above facts the Forum finds that a deficiency in service happened from the 1^st opposite party’s part and the 2^nd opposite party is not a necessary party in this case.  The points No.1,3 and 4 are found in favour of the complainant.   Considering the circumstance of the case the complainant is entitled to get compensation and cost of the case from the 1^st opposite party.  And the claim against the 2^nd opposite party liable to be dismissed.

In the result, the complaint is partly allowed and the 1^st opposite party is directed to pay Rs.4,554/- (Rupees Four thousand Five hundred and Fifty Four only) the claim amount and Rs.3,500/- (Rupees Three thousand Five hundred only) as compensation and Rs.2,000/- (Rupees Two thousand only) towards the cost to the complainant within one month from the receipt of the order. Otherwise  interest @9% shall be paid till making payment of the entire amount. If the 1^st opposite party failed to comply this order the complainant can execute the order through due process of law at the expenses of the 1^st opposite parties.

            Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 12^th day of March 2020.

Date of filing:19.05.2018.

                                                                                                PRESIDENT:  Sd/-

                                                                                                MEMBER   :  Sd/-

                                                                                                MEMBER  :   Sd/-

APPENDIX.

Witness for the Complainant.:-

PW1.              Sourath                                 Complainant.

Witness for the Opposite Parties:-

OPW1.          Sony.                                     Business.                              

Exhibits for the Complainant:    

A1.      Tax Invoice.                                      dt:04.11.2017.

A2.      Copy of Policy Schedule.             

A3.      All Risk Policy Claim Form.           dt:15.03.2018.

A4.      Tax Invoice.                                      dt:29.03.2018.

A5.      Prescription from the Bajaj Finance Ltd.

A6.      Receipt.                                             dt:10.04.2018.

A7.      Copy of e-mail.      

Exhibits for the Opposite Parties:-

Nil.