Karnataka

Bangalore 4th Additional

CC/14/2045

Mr. Shekarappa - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

17 Jan 2018

ORDER

Complaint filed on: 06.12.2014

                                                      Disposed on: 17.01.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.2045/2014

DATED THIS THE 17^TH JANUARY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mr.Shekarappa

S/o Lakshmanna,

Advocate,

R/at 60/A, 3^rd cross,

Anandagiri Nagar,

Police Station Road,

Hebbal, Bengaluru-32

 

By Adv.Sri.H.V.Harish     

 

V/s

Opposite party/s

Respondent/s:-

 

1. The Oriental Insurance Co., ltd., # Leo shopping complex,

3^rd floor, no.44/45,

Residency road cross,

Bengaluru-25.

Rep by its Manager

 

By Adv.Sri.H.B.Vijayakumar

 

2. Sangeetha Mobiles Pvt. ltd.,

Office # 1183, 22^nd A cross, Banashankari 2^nd stage, Bengaluru-70.

Rep by its Manager

 

S.N.Madhu

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to pay the amount of Rs.6,089/- paid towards purchase of the mobile or give new mobile of the same price. Further direct to pay legal charges of Rs.10,000 and compensation of Rs.10,000/-.

 

          2. The brief facts of the case of the Complainant are that he has purchased ‘S7262 Galaxy Star Pro Mobile’ (herein after referred as the said mobile) from Op.no.2/Sangeetha Mobiles for the valuable consideration of Rs.6,089/- including VAT and insurance. Op.no.2 having its understanding and alliance with the Oriental Insurance Co., ltd.,/Op.no.1. In this context, Op.no.1 issued the insurance policy dtd.06.04.14 for the said mobile purchased with them. From the date of purchase, the Complainant using the said mobile with the service of Airtel under mobile SIM card no.9886665164 (herein after referred as the SIM). On 28.08.14, when the Complainant travelling in BMTC bus and going from Hebbal to CBI road, in that event, he has lost the said mobile by theft. In this context, he immediately approached Hebbal Police station and lodged the complaint of theft by unknown person. Accordingly, Hebbal police have registered a case in C.Mis.No.977/2014, further they have given endorsement to that effect. Hereafter the Complainant approached the office of Airtel at R.T.Nagar and made request to block all incoming and outgoing calls for the said SIM and requested to issue duplicate SIM card. For this purpose, the Airtel informed to the Complainant to furnish better particulars in respect of proper address poof and the Complainant has furnished the same on 04.09.14. As in terms of policy condition, he requested Op.no.1 for payment of Rs.6,089/-. His claim has been repudiated on the ground that no proper care has been taken by the Complainant, further there was an inordinate delay in informing about the theft of the mobile to Op.no.1. Hence this complaint.  

 

3. On receipt of the notice, Op.no.1 & 2 did appear before this forum and filed separate version. The sum and substance of the version of the Op.no.1 is that, no deficiency of service on its part. It is also the contention of Op.no.1 that in the policy condition it is specifically mentioned that ‘if the equipment is stolen from the insured person where the thief has used violence or force against him or seriously threatened to use violence.’ In that event, Op.no.1 is liable to pay the amount so claimed by the Complainant. In the instant case, neither used any violence nor force against the Complainant or seriously threatened to use violence. It is also the contention of the Op.no.1 that ‘if the handset is stolen whilst travelling in public transport, police acknowledgement should contain the details of offence with details of handset/transport route details.’ In the instant case, the Complainant did not furnish these information, hence the complaint is lacking merits. Further contention of Op.no.1 is that the claim is not payable if the loss occurs due to condition under exclusion clause 1: ‘Loss or damage caused by incorrect storage, poor care and maintenance, careless use, incorrect installation, incorrect set-up and neglect.’ On this ground also the complaint is liable to be dismissed. The Op.no.1 further submitted that the cost of the mobile as per the invoice is Rs.6,089/- and the policy in case of a total loss under depreciation clause the amount payable is only 50% of the cost and in such an event the amount payable would be only Rs.3,048.50 only. In this context also the Complainant has to produce the bill for having purchased the mobile. But he produced only invoice. Hence this clause also not applicable to the Complainant, with reference to the decision of Hon’ble Supreme Court, reported in 2013 (2) CPR 315 (SC) in the case of R.M.Lodha.J, Vikram Greentech (I) ltd., and Anr. Vs. New India Assurance co., ltd., Hence on these grounds and other grounds prays for dismissal of the complaint.

 

4. Op.no.2 filed version denying the contents of the complaint stating that it is nowhere concerned with regard to the theft of the said mobile. It is only Op.no.1 who is liable to pay any of the amount covered under the invoice. It is also the contention of the Op.no.2 that, theft of the said mobile was not informed to it.  Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          5. The Complainant to substantiate his case filed affidavit evidence by reiterating the facts as stated in the complaint. Though produced 5 documents did not mark. Deputy Manager of Op.no.1 and Authorized Representative of Op.no.2 filed their respective affidavit evidences and none of the documents are produced. The Complainant and Op.no.2 filed written arguments. We place reliance on the available materials on record.  

  

6. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Ops, if so, whether the Complainant entitled for the relief sought for ?  
2. Whether Op.no.1 proves that the claim does not fall within the insured peril as per policy and therefore the claim is not admissible as per policy  ?
3. What order ?

                   

           

 

7.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: In the Affirmative.

Point no.3: As per the final order for the following

 

REASONS

 

          8. Point no.1 & 2:  Since these points are interconnected, hence we have taken these 2 points together for our discussion just to avoid the repetition of the facts.

 

          9. It is not in dispute that the Complainant has purchased the said mobile from Op.no.2 and got it insured with Op.no.1. It is also not in dispute that, when the Complainant travelling in BMTC bus and going from Hebbal to CBI road, in that event, he has lost the said mobile by theft. It is also not in dispute that he has reported the theft of the said mobile to the Hebbal Police station. In this context, they have registered the case.  It is also not in dispute that the Complainant has applied for seeking the amount of Rs.6,089/- covered under the invoice, as the said mobile was insured with Op.no.1. It is also not in dispute that Op.no.1 repudiated the claim of the Complainant on the ground that, theft of the said mobile and also in respect of violation of terms & conditions of the insurance policy. Ongoing through the available materials on record, the Complainant did not immediately informed to Op.no.1. If the Complainant would have informed Op.no.1 at the earliest, it would assist to the concerned police to trace the said mobile. It is also not in dispute that as per the terms & conditions of the policy, the Complainant ought to have produce police acknowledgment which contains the details of offence with details of handset/transport route details, but he did not produced. Further there is no evidence to show that in the event of theft of the mobile from the Complainant using violence or force against him by thief. Further the Complainant ought to have taken proper care in respect of the said mobile as stated in para 10 of the version of Op.no.1.  If these terms & conditions are taken in to consideration, we find there was negligence on the part of the Complainant. Further it appears that the Complainant has not taken proper care of the mobile while travelling in bus and made delay in furnishing better particulars to Op.no.1, in this context, we find complaint filed by the Complainant is lacking merits and liable to be dismissed. Accordingly we answered the point no.1 in the negative and point no.2 in the affirmative.

  

10. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed devoid of any merits.

 

          2. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer and pronounced in the Open Forum on 17^th January of 2018).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Shekarappa, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Doc.no.1	Endorsement dtd.19.09.14
Doc.no.2	Bill dtd.06.04.14
Doc.no.3	Legal notice dtd.06.11.14
Doc.no.4	Reply notice dtd.25.11.14
Doc.no.5	Original Postal receipts and postal acknowledgements

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.R.S.Arasu, who being the Deputy Manager of Op.no.1 was examined.

Sri.Vijay Singh, who being the Authorized representative of Op.no.2 was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

-NIL-

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT