Karnataka

Chitradurga

CC/19/2015

Mr. M.Divakar S/o. Maharudrappa - Complainant(s)

Versus

The Manager, Universal Telecommunications India Pvt. Ltd., - Opp.Party(s)

Shri.M.K.Lokesh

16 Nov 2015

ORDER

COMPLAINT FILED ON : 17/01/2015

     DISPOSED ON: 16/11/2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 19/2015 DATED:  16th November 2015

 

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

 

COMPLAINANT	M. Divakara, S/o Maharudrappa, Chandru Nilaya, Gopalapura Road, Chitradurga-577501.   (Rep by Sri. M.K. Lokesh, Advocate)
OPPOSITE PARTY	1. The Manager, Universal Telecommunications India Pvt. Ltd., B.D. Road, Chitradurga.   2,  The Branch Manager, The Oriental Insurance Co. Ltd., Branch Office, Sri Sharada Complex, Opp: KSRTC Bus Stand, B.D. Road, Chitradurga-577501.   (Rep by Sri. L. Madhusudhana,  Advocate for OP 2 OP 1 ex-parte)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OPs for a direction to the OPs to pay the cost of Mobile Handset of Rs.46,500/- with interest at 18% p.a along with damages of Rs.10,000/- for mental agony and cost of this proceedings for a sum Rs.5,000/- etc.

2.     The brief facts of the case of the complainant are that, he purchased an Apple I Phone 5 (16 GB) Handset bearing IMEI No. 013414000747558 from OP No.1 vide Tax Invoice No.P.CDU/4038 for a sum of Rs.46,500/- with one year warranty and the same has been insured with OP No.2 under policy No.451300/48/2012/Universal covering the risk for a period of one year from the date of purchase.  It is further stated that, on 30.10.2013 at about 9-00 AM, complainant along with his family members proceeded to Shimoga from Hassan in his car bearing No.KA-02/ME-6045 and again he left Shimoga and proceeding towards Chitradurga, when the said car was moving near Machenahally Dairy Circle at about 12-00 noon, a lorry bearing No.KA-22/A-8278 came from Shimoga in a rash and negligent manner endangering human life and tried to overtake the car without giving any signals dashed to his car and as a result complainant has sustained grievous injuries and inmates of the car have also sustained injuries.  After the accident, injured persons were shifted to Meggan Hospital, Shimoga and the Tunga Nagar Police have registered a case in Cr.No.453/2013 against the lorry driver.  After recovery complainant lodged a complaint with Tunga Nagar Police stating that, he met with an accident on 30.10.2013 and in the said accident he lost his Mobile as somebody has stolen his Apple Mobile Handset worth Rs.46,500/-, which was accepted by the Tunga Nagar Police and registered under Direct Application No.309/2013 and issued an endorsement dated 21.01.2014.  It is further stated that, on 14.11.2013, complainant sent a claim form to the OP No.2 requesting to settle the claim.  OP No.2 sent a letter dated 23.11.2013 to the complainant to submit final report or the non-traceable certificate in the prescribed format for further proceeding and in case if the complainant went to reopen the claim, send suitable reply with supporting documents within 15 days.  Accordingly, complainant submitted all the relevant documents to the OP No.2.  In spite of so many requests made by the complainant, OP No.2 failed to settle the claim of the complainant which shows the deficiency in service.  It is further stated that, on 27.11.2014 complainant sent a legal notice by RPAD through  his Advocate to the OPs, but the OPs neither sent a reply nor settle the claim.  Hence, there is a deficiency of service on the part of OPs so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

3. On service of notice OP No.1 nor its Advocate appeared before this Forum nor filed any version.  Hence, OP No.1 placed ex-parte.  OP No.2 appeared through Sri. L. Madhusudhana, Advocate and filed its version admitting about the purchase of Apple I Phone Handset on 14.03.2013 from OP No.1 vide Tax Invoice No.P. CDU/4038 for a sum of Rs.46,500/- and also issuance of policy bearing No.451300/48/2012 covering the risk for a period of one year from the date of purchase.  It is denied that, while he was driving his car bearing No.KA-02-ME-6045 from Hassan to Shimoga and while he driving his car towards Chitradurga, it met with an accident near Machenahally Dairy Circle due to the rash and negligent act of the driver of the lorry bearing No.KA-22/A-8278 which came from the opposite side and the inmates of the car including the complainant have sustained injuries and the complainant lost his mobile handset as somebody has stolen the same.  It is further stated that, the alleged accident has been occurred on 30.10.2013 and the complainant has lodged a complaint with the jurisdictional police on 13.11.2013 after a lapse of 14 days from the date of alleged accident and the complainant was silent with regard the non tracing of Sim card nor obtaining duplicate Sim card after the occurrence of alleged accident.  It is further stated that, complainant submitted a claim form on 14.11.2013 after a lapse of 14 days from the date of alleged accident.  Soon after receipt of the same, OP No.2 through its letter requested the complainant to submit relevant documents in a prescribed format for further proceeding of the claim, but the complainant did not furnish the same.  It is denied that, inspite of so many requests, OP No.2 failed to settle the claim of the complainant and the OP N.1 has to settle the claim.  It is further stated that, the parties are governed by the terms and conditions of the policy and the settlement of the claim if any is subject to the terms and conditions to be complied with by the complainant.  There is no cause of action for the complaint and the alleged cause of action is false and concocted and this complaint is filed on the basis of false and vexatious grounds and there is no deficiency of service on the part of OPs.  Hence, prayed for dismissal of the complaint.     

        4. Complainant himself examined as PW-1 by filing affidavit evidence and documents are marked at Ex.A-1 to Ex.A-8. 

5.     On behalf of OP No.2 one Sri. Shivakumar, the Manager of OP No.2 examined as DW-1 by filing affidavit evidence and no documents have been produced.   

 

        6. Arguments heard.

 

7. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complaint proves that, he is entitled for compensation as stated in his complaint?

 

Point No.2:- What order?

 

        8. Our findings on the above points are as follows:

 

        Point No.1:- Affirmative.

        Point No.2:- As per the final order.

 

                                        ::REASONS::

 

9. Point No. 1:- It is not in dispute that, complainant has purchased an Apple I Phone 5 (16 GB) Handset bearing IMEI No.013414000747558 from OP No.1 under Tax Invoice No.P.CDU/4038 for a sum of Rs.46,500/- with one year warranty and the same has been insured with OP No.2 under policy No.451300/48/2012/Universal covering the risk for a period of one year from the date of purchase.  It is not in dispute that, on 30.10.2013 the complainant along with his family members travelling towards Chitradurga in his car bearing No.KA-02/ME-6045, when the said car was moving near Machenahally Dairy Circle at about 12-00 noon, a lorry bearing No.KA-22/A-8278 came from Shimoga in a rash and negligent manner and dashed to his car and as a result complainant and inmates of the car have also sustained injuries.  It is not in dispute that, after the accident, injured persons were shifted to Meggan Hospital, Shimoga and the Tunga Nagar Police have registered a case in Cr.No.453/2013 against the lorry driver.  After recovery complainant lodged a complaint with Tunga Nagar Police stating that, in the said accident somebody has stolen his Apple Mobile Handset worth Rs.46,500/- and the said Police registered the same under Direct Application No.309/2013.  It is not in dispute that, on 14.11.2013, complainant sent a claim form to the OP No.2 and OP No.2 informed the complainant to submit final report or non-traceable certificate in the prescribed format for settlement of the claim with supporting documents within 15 days.  Accordingly, complainant submitted all the relevant documents to the OP No.2.  But, the OP No.2 failed to settle the claim of the complainant which shows the deficiency in service on the part of OP No.2.  On 27.11.2014 complainant sent a legal notice through RPAD to the OPs, but the OPs neither sent any reply nor settled the claim.   Hence, there is a deficiency of service on the part of OPs so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

10.  So, as on the date of accident, insurance policy was in force.  It is the main contention of the complainant that he made a claim to the OP No.2 by producing all the relevant documents and in spite of policy was in force, OP No.2 has not settled the claim on the ground that,  complainant informed the fact of accident to the jurisdictional police on 13.11.2013 after a lapse of 14 days and was silent with regard to non tracing of Sim card nor obtaining of duplicate Sim card and thereby he sustained financial loss and mental agony and OPs have committed deficiency of service so, this complaint has been filed. 

 

       11.  In support of his contentions,  complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also relied on documents like copy of Tax Invoice dated 14.03.2013 which shows that, the complainant has purchased Mobile Handset for Rs.46,500/- marked as Ex.A-1, Copy of Insurance policy/Universal Mobile Theft Insurance Claim which is marked as Ex.A-2, Copy of letter written by OP 2 to the complainant requesting the complainant to submit final report or non-traceable certificate which is marked as Ex.A-3, Copy of legal notice dated 27.11.2014 which is marked as Ex.A-4, Postal receipts and postal acknowledgement are marked as Ex.A-5, Copy of letter dated 23.12.2014 written to the Advocate for complainant by the Postal Authorities marked as Ex.A-6, Copy of endorsement dated 21.01.2014 issued by the Tunga Nagar Police, Shimoga, stating that inspite of their best efforts, they could not trace out the mobile handset and further gave an instructions to the complainant to approach the OPs for further action which is marked as Ex.A-7 and Ex.A-8 is the counterfoil of Vodafone company and they are not in dispute. 

 

12.  On the other hand, it is argued by the Advocate for OP No.2 that, complainant has purchased one Apple I Phone Handset on 14.03.2013 from OP No.1 under Tax Invoice No.CDU/4038 for a sum of Rs.46,500/- and the same was insured with the OP No.2 under policy No.451300/48/2012 covering the risk for a period of one year from the date of purchase.  It is denied that, while the complainant was driving his car bearing No.KA-02-ME-6045 it met with an accident near Machenahally Dairy Circle and the complainant lost his mobile handset as somebody has stolen the same.  It is further stated that, the alleged accident has been occurred on 30.10.2013 and the complainant has lodged a complaint with the jurisdictional police on 13.11.2013 after a lapse of 14 days and the complainant was silent with regard the non tracing of Sim card nor obtaining duplicate Sim card after the occurrence of alleged accident and also complainant submitted a claim form on 14.11.2013 after a lapse of 14 days from the date of alleged accident.  Soon after the receipt of the claim form, OP No.2 requested to submit the relevant documents in a prescribed format, for which the complainant did not furnish the same.  It is denied that, inspite of so many requests, OP No.2 failed to settle the claim of the complainant and the OP No.1 has to settle the claim.  It is further stated that, settlement of the claim if any is subject to the terms and conditions to be complied with by the complainant.  Therefore, there is no deficiency of service on the part of OPs.  Hence, prayed for dismissal of the complaint.     

 14. We have carefully gone through the records submitted by complainant it is seen that, the OP No.2 herein has accepted the policy bearing No.451300/48/2012/Universal for a sum of Rs.46,500/- with one year warranty and the said policy was a Universal Mobile Theft Insurance Policy from the complainant.  In the version it is admitted by the OP No.2 that, the complainant has purchased Apple I Phone Mobile Handset from the OP No.1 for a sum of Rs.46,500/- under Invoice No.P.CDU/4038.  The claim made by the complainant was denied by the OP No.2 on the ground that, complainant lodged a complaint to the jurisdictional Police on 13.11.2013 and there is a delay of 14 days in lodging the complaint.   More over  after the accident complainant admitted to the Hospital as an inpatient and after recovery, complainant lodged a complaint to the Tunga Nagar Police, Shimoga stating that, he lost his Mobile in the accident occurred on 30.10.2013. The Ex.A-7 the endorsement given by the Tunga Nagar Police Shimoga clearly shows that, in spite of their best efforts, they could not trace out the Mobile Handset which was lost by the complainant in an accident.  Whenever the insurance company accepted the insurance policy and the policy was in force at the time of incident, its duty is to settle the claim.  Herein, the OP/insurance company failed to do so.  After issuing the insurance policy in the name of the complainant, the repudiation of the claim made by the complainant herein cannot be reasonable and justifiable.   Therefore, we cannot accept the contention taken by the OP No.2 that the complainant has filed a complaint after a lapse of 14 days from the date of accident.  After the accident, the complainant was admitted to the Hospital for a period of 13 days as an inpatient that's why the complainant could not able to file a complaint before the concerned police well in time.  After discharge from the Hospital, the complainant lodged a complaint before the jurisdictional Police regarding with the theft of the mobile handset.  So, question of delay in lodging a complaint does not arise.   Therefore, we come to the conclusion that, there is a deficiency of service on the part of OP No.2/insurance company in settling the claim of the complainant.  Hence, the complainant is entitled for compensation as claimed.  Accordingly, this Point No.1 is held as Affirmative to the complainant.

 

15.  Point No.2:- For the foregoing reasons, we pass the following.

ORDER

        It is ordered that the complaint filed by the complainant U/s 12 of CP Act 1986 is hereby allowed.

 

The OP No.2 is directed to pay a sum of Rs.46,500/-, the cost of Mobile Handset to the complainant along with interest at the rate of 6% p.a from the date of complaint till realization. 

 

It is further ordered that, the OP No.2 is directed to pay a sum of  Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of the proceedings. 

 

It is further ordered that, the OP No.2 is directed to pay the above amount to the complainant within 60 days from the date of this order. 

 

 

        (This order is made with the consent of Members after the correction of the draft on 16/11/2015 and it is pronounced in the open Court after our signatures.)

 

 

 

MEMBER                   MEMBER                      PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

Witness examined on behalf of Complainant:

                                                -Nil-

On behalf of OP No.2 one Shivakumar, Manager OP No.2 by filing affidavit evidence taken as DW-1

 

Witnesses examined on behalf of OPs:

 -Nil-

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Copy of Tax Invoice dated 14.03.2013
02	Ex-A-2:-	Copy of Insurance policy/Universal Mobile Thet Insurance Claim
03	Ex-A-3:-	Copy of letter written by OP 2 to the complainant
04	Ex-A-4:-	Copy of legal notice dated 27.11.2014
05	Ex-A-5:-	Postal receipts and postal acknowledgement
06	Ex-A-6:-	Copy of letter dated 23.12.2014 written to the Advocate for complainant by the Postal Authorities
07	Ex-A-7:-	Copy of endorsement dated 21.01.2014 issued by the Tunga Nagar Police, Shimoga
08	Ex-A-8:-	Counterfoil of Vodafone company

 

Documents marked on behalf of Opponent:

-Nil-

 

 

 

MEMBER                   MEMBER                      PRESIDENT

Rhr.