Date of filing:17-08-2013

Date of Disposal: 15-05-2014

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: ANANTHAPURAMU

PRESENT:- Sri S.Niranjan Babu, B.A.,B.L., President (FAC).

           Smt.M.Sreelatha, B.A., B.L., Lady Member

Thursday, the 15^th day of May, 2014

C.C.NO.123/2013

Between:

            K.Sreenivasulu

           S/o K.Kondanna

           D.No.18-774, Old Town

           Ananthapuramu.                                                                       ….   Complainant

Vs.

1. The Manager,

National Insurance Company Limited

DO III, 323 Chenoy Trade Centre,

Secunderabad – 500 003.

1. The Branch Manager,

National Insurance Company Limited

Saptagiri Circle, Subash Road

1. The Customer Care Officer,

Micromax Informatics Limited

21/14A, Phase-II, Narainaya

Industrial Area,

1.  The Store Manager,

LOT Mobile Private Limited

D.No.10/440-1, Subash Road

Near Town Co-operative Bank,

            This case coming on this day for final hearing before us in the presence of    Sri N.P.Sreenivasulu and Sri K.Jagadeeswar Reddy, Advocates for the complainant and Sri B.Rajasekhar Gowd, Advocate for the opposite parties 1 & 2 and opposite parties 3 & 4 are called absent and set-exparte and after perusing the material papers on record and after hearing the arguments on both sides, the Forum delivered the following:

O R D E R

Sri S.Niranjan Babu, President (FAC):- This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties                     1 to 4 claiming a sum of Rs.9,600/- towards the cost of Cellphone with interest @ 18% p.a., Rs.5,000/- towards deficiency of service and Rs.5,000/- towards mental agony, Rs.1,000/- towards costs of the complaint, Rs.500/- towards legal notice charges  and grant such other relief or reliefs.

2.  The brief facts of the complaint are that :- The complainant has purchased a Cellphone A110 Micromax on 15-01-2013 for a sum of Rs.9,600/- + and also paid Rs.100/- towards Insurance policy from the 4^th opposite party.  The said mobile was covered under the policy bearing No.551800/46/12/7500000068 and the said policy covers for theft, damage, fire, road accident, riot and strike within one year from the date of purchase of the mobile.

3.    On 29-04-2013 the complainant was at Kirana Shop in Neeruganti Street, Ananthapuramu and some unknown person stolen his cellphone.  Immediately the complainant searched in and around but could not trace out the Cellphone then the complainant made a complaint before I-Town Police Station, Ananthapuramu .  No case was registered but the police gave certificate that cellphone was not traceable.  Subsequently the complainant informed the 4^th opposite party about the theft of the cellphone and requested the 4^th opposite party to recommend to the Insurance Company i.e. the opposite parties 1 & 2 for payment of the Cellphone, which is covered under the policy, but the opposite parties 1 & 2 have not taken any action and no amount was paid towards the loss of Cellphone. Then the complainant got issued a legal notice on                        20-07-2013 to the opposite parties 1 to 4, which was served.  As there was no reply from the opposite parties, the complainant has preferred this complaint claiming a sum of Rs.9,600/- towards the cost of cellphone with interest @ 18% p.a. from the date of theft till the date of realization, Rs.5,000/- towards deficiency of service and Rs.5,000/- towards mental agony and other reliefs.

4.         The opposite parties 3 & 4 are called absent and set-exparte.  Counter filed on behalf of the 2^nd opposite party and adoption memo filed on behalf of the 1^st opposite party.

5.         The 2^nd opposite party filed counter stating that the mobile was covered under the policy for theft, damage to mobile due to perils, fire, riot, strike and road accidents only.  The opposite party submitted that the complainant has not approached the opposite party for settlement of his claim towards loss of his mobile. Hence the question of deficiency of service does not arise.   Further the opposite party submitted that the complainant never informed about the missing of his Cellphone.  If the complainant has informed the opposite party about the missing of his cellphone immediately, the opposite party will appoint an investigator and will proceed according to the policy terms and conditions and settle the claim.  The opposite party submitted that as per the policy terms & conditions 25% depreciation will be deducted on the cost of the mobile in case of theft.

6.     Further the opposite party submitted that the complainant has not informed the matter immediately to the opposite party to take necessary action and deactivate IMEI No. of the mobile.   The opposite party further submitted that in the police certificate filed by the complainant, which was mentioned that the complainant has lost his mobile while the complainant was moving in Neeruganti Street, Ananthapuramu.  The said certificate did not disclose modus operandi in tune with the definition of theft as defined in I.P.C. and police did not register F.I.R. as specified crime does not come under I.P.C.  loss of mobile cannot be defined as theft.  Hence the policy did not cover the cost of mobile as per the terms and conditions of the policy.

7.         Basing on the above pleadings, the points that arise for consideration are:-

          1. Whether there is deficiency of service on the part of the opposite party?

          2. To what relief?

8.         In order to prove the case of the complainant, the complaint has filed evidence on affidavit on his behalf and marked Ex.A1 to A5 documents. On behalf of opposite parties 1 & 2, the 2^nd opposite party has filed evidence on affidavit on its behalf and marked Ex.B1 document.

9.    Heard both sides.

10.      POINT NO.1:-  The counsel for the complainant submitted that the complainant has purchased mobile from the 4^th opposite party for a sum of Rs.9,600/- and paid a sum of Rs.100/- towards National Theft Insurance Policy on 15-01-2013. The counsel for the complainant submitted that while the complainant was at Kirana Shop in Neeruganti Street, Ananthapuramu on 29-04-2013 some unknown person has stolen his Cellphone.  Then the complainant searched in and around the place but could not trace out the Cellphone. Then the complainant immediately gave a complaint in I-Town Police Station, Ananthapuramu.  Subsequently on the same day the police gave certificate stating that the complainant has lost his mobile while he was moving in Neeruganti Street, Ananthapuramu, inspite of their best efforts they could not trace out the cellphone. The counsel for the complainant submitted that the complainant informed the same to the                     4^th opposite party and requested to recommend to the Insurance Company for making payment towards loss of Cellphone, which is covered under the policy.  Further the counsel for the complainant submitted that as there was no response from the opposite parties, the complainant got issued a legal notice on 20-07-2013 to the opposite parties 1 to 4 which was served, but there was no reply for the same.  The counsel for the complainant argued that as there was no reply from the opposite parties, the complainant has to suffer mentally as the opposite parties failed to compensate loss of cellphone cost shows their negligence and opposite parties have committed deficiency of service for which they are liable.   The counsel for the complainant argued that the opposite parties 1 to 4 are jointly and severally liable to pay the cost of cellphone with interest from               29-04-2013 till the date of realization and also to pay a sum of Rs.5,000/- towards mental agony and Rs.5,000/- towards deficiency of service and also to pay costs of the complaint and legal notice charges as prayed in the complaint.

11.       The counsel for the 2^nd opposite party submitted that there is no dispute with regard to policy taken by the complainant.  The counsel for the opposite party submitted that the policy covers for theft, fire and allied perils.  The counsel for the opposite party submitted that the complainant has never informed regarding the loss of mobile and the complainant never claimed for the same.  The counsel for the opposite party submitted that for the first time the complainant has issued a legal notice on 20-07-2013 and then only the opposite parties came to know that the complainant has lost his mobile.  The counsel for the opposite party argued that the insurance policy covers only for theft and damage to the mobile due to fire, riot, strike and road accidents only.  The counsel for the opposite party argued that the complainant has never informed the opposite party immediately after the loss of his mobile.  If the complainant has informed the opposite party, then the opposite party might have appointed an investigator and take necessary action to trace out the mobile, but the complainant has not informed the opposite party about the loss of mobile.

12.       The counsel for the opposite party argued that the police certificate filed by the complainant shows that the complainant has lost his mobile while he was moving in Neeruganti Street, Ananthapuram and the said cellphone could not be traced out inspite of best efforts of the police and the said certificate is issued on the same day of theft.    The said certificate clearly shows that the complainant himself has lost his mobile and the complainant’s mobile was not stolen as per the certificate.  The counsel for the opposite party argued that there is lot of difference between loss of mobile and theft as per I.P.C.  As the complainant lost his mobile but not stolen by someone, the Insurance Policy does not cover the loss as per the terms and conditions.  Hence, the opposite parties are not liable to pay the cost of mobile and there is no deficiency of service on the part of the opposite parties as the complainant has never made a claim for the same.

13.       After hearing the arguments and perusing the documents, the arguments of the complainant that the mobile was stolen and he made a claim to the opposite parties 1 & 2 through 4^th opposite party is not proved by the complainant.  Further the document Ex.A3 certificate issued by the police clearly shows that the complainant himself has lost his mobile while he was moving in Neeruganti Street, Ananthapuramu but not stolen by someone, which clearly establishes that the complainant himself has lost his mobile.  In the above circumstances, the arguments of the opposite party is considered and as per the terms and conditions of the policy, the opposite parties are only liable when the mobile is stolen or got damaged in fire, riot, strike or accident.  Further considering the arguments of the opposite party that the complainant has never informed the opposite party immediately after the incident and even never made a claim for the same.  In the above circumstances the complainant’s version cannot be considered and the opposite parties have not committed any deficiency of service to the complainant.  Hence, we are of the view that there is no deficiency of service on the part of the opposite parties and as per the terms and conditions of the policy the complainant can claim compensation only when the mobile is stolen or got damaged in fire, riot, strike or accident.  As the mobile is lost by the complainant himself, he cannot claim for compensation.  Hence there is no deficiency of service on the part of the opposite parties.

14.  POINT NO.2  - In the result the complaint is dismissed without costs.

Dictated to Steno, transcribed by him, corrected and pronounced by us in open Forum this the 15^th day of May, 2014.

                       Sd/-                                                                         Sd/-

               LADY MEMBER,                                                  PRESIDENT(FAC),

DISTRICT CONSUMER FORUM,                         DISTRICT CONSUMER FORUM,

             ANANTHAPURAMU                                              ANANTHAPURAM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF THE COMPLAINANT:              ON BEHALF OF THE OPPOSITE PARTY

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

Ex.A1 -   Cash Bill dt.15-01-2013 for Rs.9,700/- issued by the 4^th opposite party in favour of the

              complainant.

Ex.A2  -  Photo copy of Insurance Policy No.551800/46/12/7500000068 dt.15-01-2013 issued

               by National Insurance Co. Ltd., in favour of the complainant.

Ex.A3  -    Photo copy of Certificate dt.29-04-0213 issued by the Sub Inspector of Police,

                Anantapur I Town P.S.              

Ex.A4  -  Office copy of legal notice dt.20-07-2013 got issued by the complainant to the

               Opposite parties 1 to 4.

Ex.A5  -  Postal acknowledgements signed by the opposite parties 1, 2 & 4.

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES 1 & 2

Ex.B1 – Insurance Policy No.551800/46/12/9500000068 issued by the 1^st opposite party.

                          Sd/-                                                                        Sd/-

               LADY MEMBER,                                                   PRESIDENT(FAC),

DISTRICT CONSUMER FORUM,                         DISTRICT CONSUMER FORUM,

             ANANTHAPURAMU                                              ANANTHAPURAM

Typed JPNN