DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.191/16
Rohit Kumar
S/O Shri Prem Singh
R/o F-7, Katwaria Sarai
New Delhi-110017. ….Complainant
Versus
1. New India Assurance Company Ltd.
Delhi Reginal Office-I
2nd Floor, R.G. City Centre
LSC, Block-B, Lawrence Road
Delhi-110035.
2. APPSDAILY SOLUTIONS Pvt. Ltd.
D/3136-39, Oberoi Garden Estates
Chandivali Farm Road
Andheri (E) Mumbai
Maharashtra-400072.
3. Aditya ESOLUTIONS Pvt. Ltd.
(Authorised Collection Agency of
APPSDAILY SOLUTIONS Pvt. Ltd.
C-2/9, Pragati Market
Ashok Vihar, Phase-2
Delhi-110052.
4. SPICE RETAIL Ltd.
21/4, Yusuf Sarai Main Market
Delhi-110049. ….Opposite Parties
Date of Institution : 17.6.2016
Date of Order : 13.06.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
Complainant has requested to pass an award to direct the OPs 1 to 3 jointly and severally to refund the sum of Rs. 34,500/-(handset cost) or give new handset of the same cost; (b) to award a sum of Rs.1 Lac as compensation against OP-1 to OP-3 towards mental harassment/agony and loss of business; (c) to award a sum of Rs.20,000/- as litigation charges against all the OPs. The New India Assurance Company Ltd., AppsDaily Solutions Pvt. Ltd. & Aditya Esolutions Pvt. Ltd. may be referred to herein after as OP-1, OP-2 and OP-3 respectively.
The brief facts of the complainant are as under:-
The complainant purchased a HTC mobile handset model No. HTC-One-Mo-Eye Silver from M/s Spice Retail Ltd. (hereinafter referred to as OP-4)for a sum of Rs.34,500/-. The complainant also got his mobile handset insured from OP-1 & 2 through OP-4 vide invoice No.104425539 dated 18.3.2015. It was averred by the complainant that the OP-4 had assured him in case of any damage to the mobile set, the complainant would be entitled either refund of said amount or new handset. On 25.11.2015, the display and one corner of the said handset got damaged. The complainant immediately contacted OP-2’s Customer Care and intimated about the damage of his handset. It was assured that the handset shall be got picked up from the complainant. One copy of the email sent by OP-2 is annexed herewith as Annexure-3 (Colly). The claim form sent by OP-2 is also exhibited as Annexure P-4 (Colly). On 13.12.2015, after two weeks, the agent of the OP-2 picked up the said handset and charged Rs.500/- on 25.11.2015, the complainant received a text message from OP-2 as under:-
Dear Customer, your handset is now approved for repair please get in touch with Service Centre to find out when the handset will be repaired. The date is 18.1.2016………….The same is exhibited as Annexure P-6.
The complainant continued to visit the OP-3, the authorized Service Centre of OP-2 and got his handset back after 86 days. The handset was returned in the damaged condition. They refused either to repair or pay the cost of said handset. He continued to contact either repair it or give new handset. No satisfactory reply was received from OP-2. Hence this complaint.
The OP-1, on the other hand, stated that the pre-approval to the claim was given on repair basis on 28.12.2005 for Rs.6,730/-. Later on, OP-1 received a revised estimate of Rs.26,893/- dated 8.1.2016 which would have inordinarily increased the liability of the insurance company which is improbable. It was also asserted by OP-1 that the cause of loss in form IC and 2C submitted by the complainant in this court are contradictory to each other. The cause of damage in the form submitted here is ascribed “fell from the table” whereas duly certified form submitted to OP-1 states that “while I was talking on the phone someone pushed me from behind I was fell down and phone also got fall down from my hand, did got damaged”. The same is exhibited as Ex OP-1/3. This clearly shows the mis-representation of facts. And misrepresentation of facts is an exclusion under terms & conditions of the policy. Hence the claim was repudiated.
It is admitted that Insurance Policy No.670302/46/14/24/ 00000008 valid from 1.2.2015 to 10.11.2016 in the name of insured i.e. Apps Daily Solutions Private Ltd. The liability of the company, if any, is subject to terms & conditions of the policy. It is also stated that rest of the allegations are denied for want of knowledge. It was also averred by OP-1 that pre-approval to the claim was given by technical engineers at Apps Daily and was only provisional and acceptability of claim was to be decided only after verifying of all the requisite claim documents in original. These documents are received through APPSDaily, as maintained by OP-1. It is also stated further asserting that the contractual obligation of the policy is between M/s Apps Daily Solutions Pvt. Ltd. and The New India Assurance Co. Ltd. alone.
OP-1 and complainant have filed written submission and evidence in affidavit. Written Statement is on record so is the rejoinder. OP-2 & 3 have filed neither reply nor submissions. Oral arguments were heard and concluded.
This Commission has gone into the material placed on record. The complainant has denied any contradiction as pointed out by OP-1 in form 1C & 2C. Therefore, the complainant had denied any mis-representation as the actual cause of damage of handset is as per document 1C attached with complaint. The other form was filled in by OP-2as maintained by complainant in its rejoinder. This Commission further minutely examined, the complaint along with C from which is exhibited as Annexure P-4 (colly) and the other 1C from is exhibited as Ex OP1/2 by OP-1. This 1C form as shown as ExOP-1/2is found signed by the insured person whereas the other one which is attached with complaint is unsigned. The complainant denied that the signatures shown by OP-1 are forged one. However, signature at this IC form seems tallied with signatures made on complaint. OP-1 has vividly placed reliance while deciding the case on mis-representation. It is a fact that the insurance companies are governed by the principle of Uber-rima. No clarity about the fact is coming out whether damage to the handset is caused by falling from the table, or falling down from his hand while it was being used by the complainant. The OP-1 has not clarified this aspect clearly. The statement of OP-1 in its reply or elsewhere, that “the revised estimate of Rs.26,983/- which would have inordinately increased liability of the company which is improbable”. Once the goods were insured how the increased amount make the company improbable. Insurance is done only to cover the risk to the extent of insured amount. These facts are not explained either by Insurance company or complainant in their replies.
This Commission also examined this issue of contractual obligation as maintained by OP-1 that the same is between M/s APPs Daily Solutions Pvt. Ltd. and The New India Assurance Co. Ltd. alone whereas the payment is found made by the complainant. No doubt, the name of insured in the policy is that of M/s APPS Daily but in the claim form, the name of complainant is also found filled in. Neither of the parties pressed for the replies of OP-2 & OP-3. OP-3 presence in this Commission is hardly noted. Both OP-2 & 3 conveniently considered it appropriate not to file their responses at any stage here in this Commission. This Commission take adverse note of the same. Many opportunities were given but they tried to shrug off their liabilities.
In view of facts and circumstances of the case, this Commission is of the considered view that OPs are found deficient in service collectively. Hence, it is directed that all the OPs (OP-1, OP-2 & OP-3) are severally and jointly responsible for the deficiency in service and accordingly, they shall pay Rs.20,000/- as compensation towards the mobile set and Rs.5000/- as compensation towards mental harassment/agony etc. The said amount shall be paid severally & jointly by OPs within 2 months from the receipt of this order failing which rate of interest shall be levied 9% p.a. till its realization.
File be consigned to the record room after giving copy of the order to the parties as per rules.
