Delhi

North East

CC/226/2017

VISHAL - Complainant(s)

Versus

THE MOBILE GALLERY - Opp.Party(s)

06 Jan 2020

ORDER

 

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  226/17

 

In the matter of:

	Shri  Vishal S/o Shri Ram Gopal R/o A-623, Part 2, Gali No. 11 Sonia Vihar, Delhi-110094	Complainant
	Versus
1         2         3	The Mobile Galliry C-670, Shop No. 1 Main Wazirabad Road Bhajanpura Delhi-110031   Amtrust Mobile Solution India Pvt. Ltd. Equinox Business Park, Tower 2, 1st floor Off Bandra Kurla Complex Mumbai-400070   The Oriental Insurance Company Ltd. F-14, Connaught Place New Delhi-110001	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

13.07.2017 06.01.2020 06.01.2020.

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Shorn of unnecessary details, the present complaint pertains to the fact that the complainant had purchased a Gionee F103 Pro mobile having IMEI no. 862861035701145 from OP1 on 18.05.2017 vide invoice no. 561 on down payment of Rs. 3,500/- and the rest of the amount i.e. Rs. 9,327/- was financed from Home Credit India Finance Pvt. Ltd. vide Contract no. 3707329520 on six monthly installments of Rs 1,555/- each payable from 18.06.2017 to 18.11.2017 between 12^th and 18^th of every month. The OP1 apprising the complainant of a mobile insurance scheme provided by OP2 by the name of Mobile Device Protection Membership Programme which insures the mobile from theft, accidental and liquid damage and provides pickup and delivery and three months warranty after repair with Worldwide coverage up to 60 calendar days per each travel period. The complainant purchased the Mobile Device Membership Program-Protect Plus vide certificate no. 3707329520 from OP2 on payment of Rs. 1,429/- with start date 18.05.2017 and end date 17.05.2018. However, the subject mobile got stolen on 25.05.2017 near Shahabad Dairy, Sector 36 Rohini, Delhi by some unidentified person for which complainant immediately lodged FIR no. OD-SD-000571 dated 26.05.2017 with Shahabad Dairy Outer District PS and informed OP2 on its Hotline no. 18001023748 the same day. Thereafter, complainant provided the requisite documents viz declaration form-theft claim, declaration of blocking of IMEI number, Police complaint format and subrogation cum undertaking duly signed by him to OP2. The complainant was asked to file claim form under gadget insurance policy which was issued by OP3. However despite fulfillment of all formalities, OP2 vide email dated 01.06.2017 to the complainant decline his claim “due to delay in claim intimation”. Therefore feeling aggrieved at wrongful repudiation by OPs despite having protection plan which caused immense mental tension and harassment to the complainant, the complainant alleging deficiency of service on the part of the OPs filed the present complaint praying for issuance of direction against OPs to refund the sum of Rs. 12,830/- (cost of mobile + insurance premium) to the complainant alongwith interest @ 24% from date of purchase and compensation of Rs. 50,000/- towards mental harassment and agony and Rs. 25,000/- towards of cost of litigation.
2. Complainant has attached copy of mobile purchase invoice, copy of Mobile Device Membership Program copy of loan summary with repayment guide, copy of FIR dated 26.05.2017, copy of discharge voucher, copy of declaration form-theft claim, copy of declaration for blocking IMEI and copy of email dated 01.06.2017 from OP2 to complainant rejecting the theft claim on grounds of delay in claim intimation.
3. Notice was issued to all OPs on 17.07.2017. OP1 was served on 28.08.2017 however none appeared on its behalf and was therefore proceeded against ex-parte vide order dated 30.01.2018. OP2 entered appearance through its City Manager on 07.03.2018 when it was handed over complete set of complaint with annexures to file its written statement. However, OP2 failed to file the same within the statutory mandatory period of 45 days as per the Act and therefore its defence was closed vide order dated 01.05.2018 after which OP2 never appeared and was therefore proceeded against ex-parte vide order dated 13.02.2019. OP3 entered appearance and filed written statement on 10.04.2018 in which it took the preliminary objection of repudiation of theft claim of the complainant on ground of late intimation i.e. after 48 hours of theft in contravention to policy terms and conditions and failure on the part of the complainant to furnish the requisite documents within stipulated time despite several reminders. OP3 denied any deficiency of service or unfair business practice on its part and prayed for dismissal of complaint.
4. Rejoinder in rebuttal to the defence taken by the OP3 was filed by the complainant reiterating his grievance in the complaint and submitted that OP3 never provided any policy terms and conditions and could not prove violation of terms and conditions by complainant as alleged.
5. Evidence by way of affidavit was filed by the complainant and OP3. OP3 exhibited copy of Mobile Insurance Policy Portable Equipment (Mobile Phone Handset) with OP2 being the insured and complainant being the beneficiary under the said policy by virtue of end customer of insured i.e. OP2.
6. Written arguments were filed by the complainant as well as OP3 in reassertion of their respective grievance / defence. On directions issued by this Forum vide order dated 28.05.2019 to the complainant as well as OP3 to place on record proof / date of intimation of theft of mobile phone since this was the cardinal issue involved in the present case, complainant placed on record copy of emails written by him in June 2017 to OP2 post repudiation of his theft claim by OP2 for consideration of his theft claim alongwith certification u/s 65B of Indian Evidence Act 1872. OP3 also filed series of emails correspondence exchanged between OP2 and OP3 during the period of January 2019 to December 2019 alongwith certificate u/s 65B of Indian Evidence Act 1872 vide which OP3 sought information from OP2 regarding exact date on which theft intimation was received by OP2 from complainant regarding theft of his mobile. However the response from OP2 pertained to some other claim and merely showed status claim case of the complainant as closed and not settled.
7. We have heard the arguments addressed by both sides and have perused the documentary evidence placed on record. Undisputedly, the mobile phone in question had got insured by the complainant from OP2 for the period 18.05.2017 to 17.05.2018 on payment of Rs. 1,429/-. OP2 had a business relationship / professional tie up with OP3 vide policy no. 131100/48/2017/13253

with respect to the mobile handset manufactured / legally imported in India between 09.09.2016 to 08.09.2017 with Risk Insured - Theft and Burglary + Accidental Damage + Water / Liquid Damage, Accidental Damage + Water / Liquid damage and theft and burglary as Plan 1, Plan 2 and Plan 3 respectively. The master Policy was to be issued by OP3 against which an insurance certificate acts as proof of insurance valid a period of 12 months from risk commencement date. The factum of the theft of mobile and lodging of FIR as well as theft claim intimation is also not disputed. The dispute is solely and squarely limited to the time period of intimation of theft. Neither complainant nor OP3 has been able to place on record cogent and conclusive piece of evidence pertaining to the exact date of intimation of theft and / or proof of submission of documents. However, the onus was on the complainant to prove that he had submitted / lodged theft intimation and all requisite documents with OP2 /OP3 within the mandatory period of 48 hours of theft as per the policy terms and conditions, the non receipt of which was never agitated by the complainant in his complaint. However, notwithstanding the peculiar circumstances in the present case, it is settled law by the Hon’ble Supreme Court in the latest land mark judgment of Om Prakash v. Reliance General Insurance IV (2017) CPJ 10 SC in which it observed that in cases of theft, the concerned / affected person may not go straight away to the insurance company to claim compensation and condition of immediate intimation should not bar settlements of genuine claims particularly when delay in intimation or submission of documents is due to unavoidable circumstances. The condition regarding the delay shall not be shelter to repudiate insurance claim which have been otherwise prove to be genuine. It needs no emphasis the Consumer Protection Act aims at providing better protection of the interest of the consumer and is a beneficial legislation deserving liberal construction. The Hon’ble Supreme Court thus held in the said case that the Hon’ble National Commission was not justified in rejecting the claim of appellant and set aside orders passed by Hon’ble NCDRC, SCDRC Haryana and District Forum Hisar. The said judgment has been consistently followed by the Hon’ble National Commission in subsequent judgment of Jagjit Singh v. Cholamandalam MS General Insurance Co. Ltd. IV (2017)  CPJ 446 (NC), Jaswinder Kaur v. ICICI Lombard General Insurance Co Ltd. III(2018) CPJ 346 (NC), Ved Prakash Kajla v. New India Assurance Co. Ltd. III (2018) CPJ 567 (NC), Cholamandalam MS General Insurance Co Ltd v. Tanusree Mondal IV (2018) CPJ 260 (NC) and Shri Ram General Insurance Co Ltd v. Kuldeep IV (2018) CPJ 579 (NC) in which the Hon’ble National Commission relying upon, the judgment of Om Prakash passed by Hon’ble Apex Court held that mere delay in intimation of theft cannot be the “sole” ground for repudiation. Further, the Hon'ble National Commission in Murali Agro Product Ltd. Vs Oriental Insurance Co. Ltd. 2005 (1) CPJ 1 (NC) held that in case of ambiguity in policy / vague clause, the insurance company cannot escape liability since in such cases, benefit of doubt should be given to the insured.

8. The OP2 vide email dated 31.05.2017 to the complainant had acknowledged the theft claim registration and had filled the claim form requesting complainant to check, print, sign and send back the same and requested complainant to submit the requisite documents within next 15 days. However, the very next day it rejected the theft claim on grounds of delay in theft claim intimation which was objected to by the complainant in view already having lodged theft claim on 26.05.2017 but not processed by OP2. This in our view is deficiency of service and unfair trade practice on the part of OP2. The Hon'ble National Commission in National Insurance Co. Ltd. Vs D.P. Jain (2007) III CPJ 34 (NC) held in similar case of repudiation of mobile theft claim that if exclusion clauses are not explained, the same are not binding on insured and such clauses are to be ignored while considering claim of insured and intermediary which issued insurance cover as an agent of insurance company was bound to reimburse complainant. Regulation 3 (Point of Sale) of Insurance Regulatory and Development Authority (Protection of Policy Holders Interests) Regulation 2002 requires to be followed by insurance companies so that the terms of Insurance Policy do not operate harshly against the insured and in favour of the insurer. Therefore, it is amply clear that the rule making Authority has taken much care to protect the interest of the consumer, the regulation being mandatory in nature so as to protect consumer interests.  Even otherwise in view of the settled proposition of law which is in favour of the insured in event of genuine theft, we allow the present complaint and direct OP2 & OP3 jointly and severally as the insurance agent / insurer to pay the theft claim to the tune of Rs. 10,999/- to the complainant alongwith interest @ 6% p.a. from the date of filing of the complaint till realization. We further direct OP2 & OP3 jointly and severally a sum of Rs. 5,000/- towards mental harassment inclusive of litigation charges. No order is passed against OP1 in view of it being a seller and the dispute pertaining to insurance for which only OP2 & OP3 are liable / accountable. Let the order be complied by OP2 & OP3 within the 30 days from the date of receipt of copy of this order.
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  06.01.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member