BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 24^th June 2016        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.:78/2016     

Complainant/s:

Raghavendra S/o.Veerupaksha Karam,

Age: 30 years, Occ: Private Service,

R/o.14/272 9^th Cross, Saptapur, Dharwad.

R/By his Special Power of Attorney

Holder by name

Narendra S/o.Veerupaksha Karam,

Age: 29 years, Occ: Business,

R/o.14/272 9^th Cross, Saptapur, Dharwad.

 (By Sri.A.C.Chakalabbi, Adv.)

v/s

Respondent/s:

1. The Manager, National Insurance Ltd., Division II, Sterling Bldg, I floor, 65 Murban Road, Fort, Mumbai 400001.

(By Sri.R.H.Kulkarni Adv.)

2. The Edelweiss Insurance Brokers Ltd., Unit No.102, 10^th Floor, Sakhar Bhavan, 230, Nariman Point, Mumbai 400002. (Maharashtra state)

(In person)

3. The Manager, Mobile Store Ltd., No.2956-2958 Desai Chambers, Koppikar Road, Hubballi 580020.
4. The Manager, Mobile Store Ltd., Bafna Center, 39/38 Shop No.G3, SM Road (NH4) Peenya Bangalore 560013.

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming  for a direction to respondents to  pay Rs.25,628/- covered under the policy with interest @18% PA from the date of theft till realization, to pay Rs.50,000/- towards compensation for mental agony, to order for cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that,  complainant had purchased mobile set HTC Dezire 816 IMEI No 352795062355879 on 23.08.2014 from the respondent.4 manufactured by the respondent.1, by paying Rs.25,628/-, respondent.3 is the authorized service center. At the time of purchase at the instance of respondent.4 the complainant had insured his mobile set under theft and burglary risk coverage policy with the respondent.2 and paid a premium of Rs.625/-. The risk coverage period is from 23.08.2014 to 23.08.2015. During the currency of the risk period the said mobile set was stolen on the way to CBT on 01.08.2015. The same was complained to sub urban police station Dharwad under Misc.# 635/15. Thereafter the complainant informed the same to the respondent.3 along with all documents claiming the insurance. For the claim the respondent.2 informed that grievance cannot be addressed. Thereafter the complainant got issued legal notice to the respondents on 17.11.2015 to settle the claim but the respondent.2 sent evasive cryptic reply stating that the account of the complainant was closed for violation of the policy without  mentioning the reason. The non settlement of the claim amounts to deficiency in service. Hence, complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondent.1 & 2 appeared. While the respondent 3 and 4 remained absent. Hence, they have been placed exparte.

4.     The respondent 1 and 2 admits separate written version denying and disputing the very complaint averments viz., complainant is a consumer, complaint as brought is not a consumer complaint, jurisdiction and other facts and prays for dismissal of the complaint. Both respondent 1 and 2 have taken similar contention in protesting the complaint averments in the same line. While both the parties among such other admissions and denials admits the purchase of the mobile set, value of the mobile set, insurance policy & risk coverage  to the date of incident subject to terms and conditions. The respondent 2 specifically taken contention justifying the repudiation alleging violation of terms and conditions of the policy contending as per the terms and conditions of the policy risk is only against to the theft and burglary only & denied the complaint allegations of deficiency in service by the respondents and prays for dismissal of the complaint.  

5.     On the said pleadings the following points have arisen for consideration:

1.  Whether complainant has proved that there was deficiency in service on the part of respondents ?

2.  Whether complainant is entitled to the relief as claimed ?

3.  To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit, relied on documents. The respondent 2 also relied on relevancies. Heard. Perused the records.

Finding on points is as under.

1.    Negative

2.    Negative

3.   As per order

R E A S O N S

P O I N T S 1 & 2

6.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  the mobile set in question covered under the insurance policy issued by the respondent.2.

7.     Now the question to be determined is, whether the claim is within the ambit of insurance risk coverage and non settlement of the claim by the respondent 2 amounts to a deficiency in service , if so, for what relief the complainant is entitled.

8.     Since the facts have been revealed in detail which requires no repetition.

9.     On looking into the pleadings and evidence of the complaint the case of the complainant is that the mobile set in question was stolen on 01.08.2015 from the respondent while on his way to CBT Dharwad from his house. In support of this contention the complainant produced and relied Ex.C4, C8,C9,C14. It is further case of the complainant that immediately after it was stole lodged complaint before sub urban police station as per Ex.C9 endorsement. Further it is the case of the complainant that while registering the complaint Ex.C9 the complainant has given affidavit Ex.C14 to the police. At this juncture reference could be made to the contents of legal notice Ex.C10. It is the definite and specific case of the Respondent No.2 that the risk only against theft & burglary only as per Ex.C2 insurance certificate. In support of this specific contention of respondent 2, relied on relevancy sec.379 of IPC, Theft- whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves the property in order to such taking, is said to commit theft.

10.   On looking into assertions by the complainant and desertions by the respondent,  if we take note and glance on the documents relied by the complainant except in the complaint as well as in the legal notice Ex.C10 in nowhere the complainant did not speak with regard to stole of the mobile set. Wherein all in Ex.C4,C8,C9& C14 the complainant has stated that he lost the mobile set negligently“£ÀdgÀZÀÄQ¬ÄAzÀ” while on the way from his house to CBT. Based on these own admissions of the complainant the respondent.2 strongly oppose and contended the claim of the complainant do not fell within the ambit of risk coverage under the policy & justified the repudiation made by the respondent.2. In support of this the respondent 2 relied on the relevancy of section 379 of IPC recited supra & prays for dismissal of the complaint. Based on the oppose & protest by the respondent of the claim & the claim of the complainant is taken into consideration it is not the case of stolen, but it is lost of the mobile set due to negligence by the complainant. Despite of these facts the complainant strongly insist for allow the complaint. Pro contra the respondent strongly opposed the claim. Based on both sides argument & consideration of the facts this Forum inclined to rely on the citations 2013 (3) CPJ 261 NC-Morian Chemicals Ltd., vs. UCO Bank-wherein it is held, insurance- non coverage under policy- insurance company not liable to indemnify loss for a peril which was not covered under the policy. Under those circumstances this Forum having limited jurisdiction cannot rewrite the terms and conditions of the policy & allow the claim. Accordingly complainant failed to establish his case of deficiency in service against the respondent. On the other side the respondent -2 justified its repudiation of the claim. Hence, complainant is not entitled for any reliefs.

11.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in negative.

12.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is dismissed. No order as to costs.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 24^th day of June 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR 

ANNEXURE

1. Witness examined on behalf of complainant:

i.Narendra – PW1

2. Documents marked on behalf of complainant

i.Retail Invoice xerox – Ex.C1

ii.Insurance certificate-xerox – Ex.C2

iii.Sim replacement form – Xerox – Ex.C3

iv.Insurance claim form  – Xerox – Ex.C4

v.General communication  – Xerox – Ex.C5

vi.General communication  – Xerox – Ex.C6

vii.General communication  – Xerox – Ex.C7

viii.Declaration form– Xerox – Ex.C8

ix.Police complaint endorsement– Xerox – Ex.C9

x.Office copy of legal notice – Xerox – Ex.C10

xi.Postal RPAD receipt card– Xerox – Ex.C10(a)

xii.RPAD receipt acknowledgement card– Xerox – Ex.C10(b)

xiii.Reply notice by respondent – Ex.C11

xiv.Reply notice by respondent – Ex.C12

xv.Original GPA– Ex.C13

xvi.Xerox affidavit copy– Ex.C14

3. Witness examined on behalf of respondent:

1. J.K.Pawar – R.W.1

4. Documents marked on behalf of complainant

-NIL-

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)