O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986 for getting a relief from the opposite parties.

                   2. The case of the complainant is stated as follows:  The complainant is the owner of a mobile phone of Samsung Galaxy Grand New IMI No.352742060762755, which was purchased by 1^st opposite party on 18.08.2014 for an amount of Rs.15,000/-.  As a result of the advice of 1^st opposite party the complainant insured the mobile phone with 3^rd opposite party, i.e. National Insurance Company through 2^nd opposite party.  The complainant paid a premium of Rs.84/- for the insurance policy vide policy    No.200200/46/14/950000078, which was valid from 18.08.2014 to 17.08.2015.  On 22.03.2015 the complainant has gone for a prayer at St. Thomas Evangelical Church, Panniyali and the mobile phone was lost at the time of prayer.  Even though, the complainant has taken earnest efforts and enquiry with regard to the phone he could not raise it out.  On the next day, i.e. 23.03.2015 the complainant preferred a complaint before the C.I of Police, Pathanamthitta and on 18.04.2015 a certificate was issued by C.I of Police stating that the phone was unable to be traced.  Though the complainant approached the 2^nd opposite party with regard to the missing of the phone there approach was also not in favour of the complainant.  It is contended that the act of the opposite parties are comes under deficiency in service and unfair trade practice as per C.P. Act, 1986.  Hence this complaint.  The complainant prayed to refund the price of the phone, compensation, cost etc. etc. from the opposite parties.

                   3. This Forum entertained the complaint and issued notice to opposite parties 1 to 3 for their appearance.  Except 1^st opposite party, 2^nd and 3^rd opposite parties entered appearance and they filed separate versions.  1^st opposite party is set exparte on 04.03.2016. 

                   4.  The version of 2^nd opposite party is as follows:  According to the 2^nd opposite party as per the preliminary objections in their version they contended that the case of the complainant is misconceived, false, frivolous and not maintainable either in law or on facts.  According to them, the complainant is not a consumer as per C.P. Act and this opposite party provided services to the complainant for free of charge and as such the complaint cannot be sustainable.  It is also contended that the 2^nd opposite party is only facilitated to the settlement of the claims of customers of 1^st opposite party.  The complainant insured the mobile phone with 3^rd opposite party.  The Para   wised reply of the 2^nd opposite party is as follows:  As stated earlier, the 2^nd opposite party again repeated their contention to the effect that the complainant herein is not a consumer and 2^nd opposite party is only facilitated the settlement of claims of customers of 1^st opposite party.  It is admitted that by e.mail dated 12.08.2015 this opposite party informed the complainant about the decline of claim by insurance company based on the complainant’s complaint.  According to this opposite party, the loss of the mobile phone comes under Exclusion 5 of the insurance policy, i.e. “wilful act or wilful neglect or gross negligence of the insured”.  It is further contended that the complainant has never paid any amount of consideration to 2^nd opposite party hence 2^nd opposite party is not liable to the complainant as per the relevant provisions of the C.P. Act.  It is further contended that there is no cause of action arised against 2^nd opposite party either on 12.08.2015 or on any other day and this opposite party is not liable to the complainant.  The complainant has no right to get any kind of relief from this 2^nd opposite party as prayed.  Therefore, this 2^nd opposite party prays to dismiss the complaint with cost to them. 

                   5. The version of 3^rd opposite party is as follows:  According to them, the claim of the complainant with regard to the compensation against 3^rd opposite party is not maintainable either in law or on fact.  It is admitted that the 3^rd opposite party had issued an insurance policy in favour of the complainant with regard to the mobile phone stated earlier and its validity will expired only on 17.08.2015.  It is contended that as per the complaint it is clear that the mobile phone of the complainant was lost from St. Thomas Evangelical Church, Panniyali at the time of prayer.  It is further contended that as per the terms and condition of the insurance policy, the insurer shall not be liable in respect of any wilful act or wilful neglect or gross negligence of the insured.  In this case, the complaint has no definite case to the effect that whether the phone was stolen or the phone was lost.  According to the 3^rd opposite party, the complainant was so careless in keeping the mobile phone safely.  It is again contended that though the complainant filed a complaint before the C.I of Police with regard to this incident that complaint was highly belated, i.e. after 24 hours of the incident.  According to them, the repudiation of insurance claim by 3^rd opposite party is as per the terms and condition of prevailing insurance policy in favour of the complainant.  Therefore, 3^rd opposite party prayed to dismiss this complaint with costs to 3^rd opposite party. 

         6. This Forum perused the complaint, version and records before us and framed the following issues:  

1. Whether the case is maintainable before the Forum?
2. Whether the 2^nd and 3^rd opposite party committed any deficiency in service as alleged by the complainant?
3. Regarding the relief and cost?

           7.  In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of chief examination.  He is examined as PW1 and marked Ext.A1 to A6.  Ext.A1 is the original bill dated 18.08.2014.  Ext.A2 is the copy of insurance policy certificate dated 18.08.2014.  Ext.A3 is the complaint dated 23.03.2015 issued by the complainant to the C.I of Police, Pathanamthitta.  Ext.A4 is the receipt dated 23.03.2015 issued by the Police Station, Pathanamthitta to the complainant.  Ext.A5 is the certificate dated 18.04.2015 issued by the Police Station, Pathanamthitta to the complainant.  Ext.A6 is the repudiation letter dated 12.08.2015.  On the other side, opposite party has not adduced any oral evidence before the Forum.  Though 2^nd opposite party has filed a version before this Forum they did not turn up for cross-examining PW1 or for the hearing.  The 3^rd opposite party filed an argument note in favour of them and we also heard complainant’s counsel.

          8. Point No.1:- 2^nd opposite party in this case seriously contested that the complainant is not a consumer and this Forum has no jurisdiction to try this case.  Though they raised this contention before this Forum through their version 2^nd opposite party has not taken any earnest attempt to substantiate their case.  It is come out in evidence that the complainant purchased a mobile phone and the same is insured with 3^rd opposite party.   In order to avail the insurance claim the complainant has remitted an amount of Rs.84/- as the premium of the said insurance scheme to 3^rd opposite party.  In the light of this evidence, it reveals that the complainant is a consumer and opposite party 2 and 3 are the service providers.  Therefore, we find that this complaint is maintainable before this Forum and this Forum has every jurisdiction to try this case.  Hence Point No.1 found accordingly.

          9.  Point Nos.2 & 3:- For the sake of convenience, we would like to consider Point No.2 & 3 together.  When we look into the evidence available before this Forum, it is clear that the complainant’s mobile phone was lost from St. Thomas Evangelical Church, Panniyali on 22.03.2015.  Even the contesting opposite party 2 and 3 were also not denying the fact.  The fact to be ascertained is whether the incident was a theft or loss.  According to the complainant as PW1, he deposed that when he kept the mobile phone on his bible and went on the prayer in church the phone was missed.  As per his complaint and as per his deposition, it is deposed that the phone was stolen by somebody from the church.  It is also to be noted that he has taken earnest attempt to trace out the phone but it is failed.  PW1 again deposed that on the 2^nd day of this incident he filed a complaint before the C.I of Police concerned with regard to the incident and after an enquiry the police has issued a certificate in favour of the complainant.  The said certificate is marked as Ext.A5 dated 18.04.2015.  The content of the certificate is as follows:- “This is to certify that a petition has been received from Mr.Anu P. Sam, Age 34, Manatharayil Anu Bhavan, Panyali, Omalloor.P.O., Pathanamthitta Dist. Kerala, India stating that the Mobile Phone (Samsung Galaxy Grand Neo) (IMEI No.352742060762755) was lost from the possession at Omalloor on 22.03.2015.  Enquiries were conducted about the lost Mobile Phone.  But no clue could be obtained so far”.  As per Ext.A5, it reveals that the complainant has filed a petition with regard to the lost of the mobile phone on 22.12.2015.  When we peruse Ext.A3 the complaint filed before the C.I of Police, Pathanamthitta, it contains that the phone was stolen by somebody at Omalloor St. Thomas Evangelical Church, Panniyali on 22.03.2015.  It is interesting to see that the C.I of Police, Pathanamthitta issued a certificate stating that, “Enquiries were conducted about the lost mobile phone.  But no clue could be obtained so far”.  When we peruse the Ext.A3, it is so clear to find that the complainant’s mobile phone has been stolen from St. Thomas Evangelical Church, Panniyali on 22.03.2015.  The contents of the complaint in Ext.A3 was purposefully suppressed by the C.I of Police when he issued the Ext.A5 certificate.  When we peruse Ext.A5, it can be inferred that police failed to give genuine certificate with regard to the missing of the phone.  Ext.A4 is the receipt dated 23.03.2015 to show that the complainant has filed a petition to the C.I of Police on 23.03.2015.  Ext.A1 is the original bill dated 18.08.2014 in favour of the complainant with regard to the purchase of the mobile phone.  Ext.A2 is the copy of the insurance policy dated 18.08.2014 in favour of the complainant.  The evidence adduced by PW1 through Ext.A1 and A2 are admitted by the contesting opposite parties.  Ext.A6 dated 12.08.2015 proved the repudiation of the claim of the complainant by 3^rd opposite party.

          10. The main question to be considered in this case is whether the phone is missed or stolen by somebody.  It is true that the learned counsel appearing for the 3^rd opposite party filed an argument note as well as he argued that the policy is only covering theft and burglary.  The case of the complainant is that his phone was lost.  It is also argued even in the complaint the complainant stated that the phone was lost.  The learned opposite parties counsels argument note he elaborately explained the meaning of loss and theft.  When we go into the details of this case and the circumstances of the incident of this case it is clear that the phone in question was in the custody or possession of the complainant at the time of the prayer in the church.  The phone was kept on the bible and he prayed for the God.  At the time of the prayer no doubt the phone was disappeared.  When we peruse the complaint and the proof affidavit of PW1, it reveals that at the end of the prayer time he recognised the absence of the phone on the bible and he enquired about the phone in the church hall forthwith.  After an enquiry he understood that his phone was stolen by somebody and the absence of the phone was a loss for ever to him.  As per the definition Clause of theft in IPC Sec. 378 it reads, “Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft”.  It is pertinent to see that if an article is disappeared from the ownership or possession of a person the after effect of that event is a theft.  Otherwise, that article has to be traced from the same spot.  In this case, it is so clear to see that the article is disappeared at the time of prayer and it is also evident to see that so many devotees are present at the time of prayer.  No doubt, we can easily inferred that somebody who present at the time of prayer may illegally taken the mobile phone from the legal possession and ownership of the complainant.  In order to substantiate this view we can rely Ext.A3 complaint which is filed by the complainant before the C.I of Police.  The said complaint was filed the next day of the incident and in that complaint complainant stated that somebody has stolen his phone from the church hall.  It is true that at the time of hearing the learned counsel appearing for the opposite party relied Ext.A5 certificate issued by the Sub Inspector of Police in reply to Ext.A3 police complaint.  When we peruse the Ext.A5, it is to see that the police authorities miserably or negligently issued the certificate stating that the phone was lost from the possession at Omalloor on 22.03.2015.  When we peruse Ext.A3 complaint anywhere in that complaint the complainant stated that the phone was lost.  It is also to be noted that the police stated that the phone was lost.  It is also to be noted that the police stated that enquiries were conducted about the lost of mobile phone but no clue could be obtained so far.  If so, what inference can be taken from that Ext.A5 police certificate?  It can be assume that even though the police conducted some enquiries they failed to trace any details with regard to this incident.  It is the duty of the police authorities to say that whether the phone was lost or stolen.  Considering all these facts we are not in a position to give any merit for Ext.A5 certificate.  At the time of cross-examination PW1 answered, “Fsâ ssIbnse bible h¨n-cp¶ bagþ Bbn-cp¶p phone. Sn bag _©n BWv h¨n-cp-¶Xv (Q) Sn phone tamjvSn-¡-s¸«p F¶p ]d-bp-¶-X-ÃmsX \jvS-s¸-Sm\pw km²y-X-bntÃ? (Question by 3^rd Opp’s counsel) (A) CÔ.  In another question he answered, “\n§-fpsS kq£va-X-¡p-d-hpw, A{i-²bpw sIm­v \n§-fpsS ssIhiw Ccp¶ phone \jvS-s¸-Sp-I-bmWv sNbvXXv F¶v O.P ]d-bp-¶Xv.  icn-bà (Q & A )”.  When we consider the way of answer of PW1, it can be inferred that the mobile phone was stolen by somebody from the prayer hall of the church room.  Even though, the police enquired the petition of the complainant they also failed to trace out the phone or failed to give details with regard to the incident.  In the light of the above discussion, we would like to find that the complainant is succeed to prove his case to the effect that his phone was stolen from the church hall at the time of prayer and also proved that the mobile phone in question was insured by the 3^rd opposite party.  If the phone was stolen as stated above the 3^rd opposite party insurance company is liable to the complainant.  It is also pertinent to see that 3^rd opposite party is admitted that the insurance cover of the said policy is only against theft and burglary.  In this case it is clear that 1^st opposite party is set exparte on 04.03.2016 and the 2^nd opposite party is only an insurance broker of 3^rd opposite party.  The complainant made 1^st and 2^nd opposite party in the party array as necessary parties for the proceedings but in the light of evidence before us they are not committed to any kind of unfair trade practice or deficiency in service against the complainant as such they are exonerated from all charges.  3^rd opposite party alone is liable to the complainant and also found that they are committed deficiency in service against the complainant by repudiating the insurance claim as stated earlier.  Therefore, we find that the complaint is allowable and Point Nos. 2 and 3 also found accordingly.

          11. In the result, we pass the following orders:

1. 3^rd opposite party is directed to pay an amount of Rs.15,000/- (Rupees Fifteen Thousand only) as the price of the mobile phone with 10% interest from the date of order onwards.

2. A compensation of Rs.5,000/- (Rupees Five Thousand only) along with a cost of Rs.2,000/- (Rupees Two Thousand only) is also allowed to the complainant against the 3^rd opposite party with 10% interest from the date of receipt of this order onwards.                              

          Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st day of December, 2016.

                                                                                       (Sd/-)

                                                       P. Satheesh Chandran Nair,

                                                                       (President)

Smt. K.P. Padmasree (Member – I)             :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Anu P. Sam

Exhibits marked on the side of the complainant:

A1 :  Original bill dated 18.08.2014. 

A2 :  Copy of insurance policy certificate dated 18.08.2014. 

A3 :  Complaint dated 23.03.2015 issued by the complainant to the C.I of 

        Police, Pathanamthitta. 

A4 :  Receipt dated 23.03.2015 issued by the Police Station, Pathanamthitta

        to the complainant. 

A5 :  Certificate dated 18.04.2015 issued by the Police Station, Pathanamthitta 

        to the complainant. 

A6 :  Repudiation letter dated 12.08.2015.

Witness examined on the side of the opposite party:  Nil

Exhibits marked on the side of the opposite party:  Nil

                                                                                                                      (By Order)

Copy to:- (1) Anu. P. Sam, Manatharayil House Anu Bhavan,

                   Panniyali, Omalloor. P.O.       

     (2) The Proprietor, Mobile Store, Kuzhiyil Building,

          Pathanamthitta.

     (3) Edelweiss Insurance Brokers Ltd., Unit No.102, 10^th Floor,

          Sakhar Bhavan, 230, Nariman Point, Mumbai.

     (4) The Branch Manager, National Insurance Co.,

                   Pathanamthitta.

              (5) The Stock File.