BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 1/12.
THIS THE 30th DAY OF MAY 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Smt. Suchitra.P. W/o. Srinivas Reddy, H.No.
12-9-38, Near Purnima Talkies, Gunj Road, Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. The Proprietor, Univercell Tele Communication
India Pvt. Ltd., Raichur- 584 101.
2. The M.D. Oriental Insurance Company
Ltd.,CBO 1 India Life Building, Trichy Road, Coimbatore- 641 018.
3. The M.D. Alegion Insurance Broking Ltd., Reg. Office, New No. 7C, Perumal Koil Street, Nerkundram, Chennai- 600 017.
CLAIM :- For to direct the opposites to pay the cost of the
mobile phone of Rs. 5,020/- and an amount of Rs. 5,000/- as a compensation with interest and cost of Rs. 1,000/-.
Date of institution :- 02-01-12.
Notice served :- 24-01-12.
Date of disposal :- 30-05-12.
Complainant represented by Sri. T.M. Swamy, Advocate.
Opposite No-1 represented by Sri. Shanker Patil, Advocate.
Opposite No-2 represented by Sri. Vikram Nair, Advocate.
Opposite No-3 Ex-parte.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
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JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant Smt. Suchitra.P. against the opposite Nos. 1 to 3 U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay the cost of the mobile phone of Rs. 5,020/- and an amount of Rs. 5,000/- as a compensation with interest and cost of litigation of Rs. 1,000/-.
2. The brief facts of the complainant’s case are that, she purchased NOKIA Mobile Model No. 5130 bearing Set No. 352678044904891 on 08-06-2010 from opposite No-1 for her personal use, for Rs. 5,020/- through Tax Invoice No. UKA 718319 dt. 08-06-2010. The said mobile set was having TATA DOCOMO Sim No. 8951356017 and same was in use at the time of loss. On 19-11-2010 at about 5:00 PM complainant went to market for shopping along with her husband by name Srinivasreddy and when complainant put the said hand set in her vanity bag, at the time of returning to house along with her husband on motor bike. The said vanity bag, along with mobile set was stolen by someone. When complaint has came to know about the theft, then, she made sincere efforts to search but was of no use and she could not get back. Hence, she lodged a complaint before PSI Sadar Bazar, on 22-11-2010 who issued acknowledgement for the same at about 18:50 hours subsequently she lodged the complaint before TATA DOCOMO office, and they issued a duplicate sim for the above number on 22-10-2010. Further, it is the case of the complainant that, subsequently she has contacted opposite No-1 in person and reported the same about incident and requested for indemnification for the loss of the mobile. Then, the Respondent No-1 issued claim form pertaining to Respondent No-1 by intimating to contact Respondent No-3 for claim accordingly, she submitted claim form to Respondent No-1. In response the Respondent No-2 has sent repudiation letter dt. 23-12-2010 by denying the claim of complainant and thereby rejecting the indemnification during the validity of insurance which is not sustainable in law, hence she has filed present complaint claiming the cost of the mobile set Rs. 5,020/-, Rs. 5,000/- as a compensation and Rs. 1,000/- as a cost of the proceedings.
3. The opposite No. 1 appeared in this case and filed his written version by contending that, the Respondent having Insurance tie up with Oriental Insurance Company Ltd., Coimbatore through Respondent No-3, which is well within in the knowledge of the complainant, prior to above complaint. The period of insurance is one year. The allegations of complainant is crystal clearly speaks about the missing of the said mobile but not theft as alleged by complainant in the complaint. In the complaint the complainant has brought concocted story so as to cover the insurance coverage for his negligence, carelessness. The Oriental Insurance Company being the responsible person to answer the claim of the complainant and if the Hon’ble Court comes to the conclusion about the liability of this Respondent, under such circumstances, the Hon’ble court be pleased to shift the liability on concerned insurer. Further, he requested to dismiss the complaint against the Respondent No-1 with exemplary cost.
4. Opposite No-2 Insurance Company also contended that, the mobile was lost due to the negligence and carelessness of the complainant. The police records discloses that, the mobile was lost while the complainant was traveling as a pillion in a motor cycle with her husband such loss are not covered by the policy issued by this Respondent, consequently the complainant is not entitled for any monetary benefits from this opponents. Further it is contended that, the policy conditions stipulates that, theft of the mobile has to be informed to the insurer within 48 hours. The complainant has not informed the alleged incident to the insurer within the stipulated period which is breach of policy conditions, hence complainant is not entitled for any monetary benefits. The claim of the complainant is highly exaggerated and is on the higher side. The present complaint is frivolous and vexatious hence, sought for dismissal of the same with cost.
5. Opposite No-3 is placed Ex-parte. Opposite No-3 not appeared before this Forum, but sent its objections through post by contending that, it acted as broker to facilitate the customers of Universal Telecommunication India Private Ltd., Oriental Insurance Company Ltd., is the only authority to settle the claim of complainant. It is not a necessary party to this complaint; accordingly it prayed for to dismiss the complaint among other grounds.
6. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, she purchased NOKIA Mobile Model No. 5130 bearing Set No. 352678044904891 on 08-06-2010 from opposite No-1 for her personal use, for Rs. 5,020/- through Tax Invoice No. UKA 718319 dt. 08-06-2010. The said mobile set was having TATA DOCOMO Sim No. 8951356017 and same was in use at the time of loss. On 19-11-2010 at about 5:00 PM complainant went to market for shopping along with her husband by name Srinivasreddy and when complainant put the said hand set in her vanity bag, at the time of returning to house along with her husband on motor bike, the said vanity bag and mobile was stolen by someone, thereafter she filed police complaint and filed claim petition before the opposite No-1 with necessary records opposite No-1 or opposite No-2 Insurance Company or opposite No-3 not responded to her claim petition, they shown their negligence and thereby, all the opposites found guilty under deficiency in their services.?
2. Whether complainant is entitled for the reliefs as prayed in this complaint.?
3. What order?
7. Our findings on the above points are as under:-
(1) In the negative.
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
8. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, she was noted as PW-1. The documents Ex.P-1 to Ex.P-5 are marked. On the other hand affidavit-evidence of opposite No-1 was filed, he was noted as RW-1. No documents filed. Similarly affidavit-evidence of opposite No-2 was filed; he was noted as RW-2. Two documents Ex.R-1 & Ex.R-2 are marked. Written arguments filed by the Respondent No-2. The counsel for the complainant and opposite No-1 advanced their arguments.
9. Opposite No-3 is placed Ex-parte. Opposite No-3 not appeared before this Forum and not filed any affidavit-evidence.
10. In view of the pleadings of the parties, their respective affidavit-evidences and documents, we have noticed some of the following undisputed facts in between the parties are:-
1. It is undisputed fact that, the complainant purchased NOKIA Mobile Model No. 5130 bearing Set No. 352678044904891 on 08-06-2010 from opposite No-1 for her personal use, for Rs. 5,020/- through Tax Invoice No. UKA 718319 dt. 08-06-2010.
2. It is further undisputed fact that, opposite No-1 is having tie up with opposite No-2 Oriental Insurance Company with coverage of fire, riot, strike, terrorist activity, theft by unknown person, loss or total damage arising out of road accident only.
3. It is further undisputed fact that, the complainant lodged his complaint before the PSI, Sadar Bazar, Raichur police regarding the missing of her mobile on 19-11-2010, while she was returning to her home from market by motor cycle along with her husband.
4. It is also undisputed fact that, the complainant filed claim petition for the price of the mobile set due to missing with necessary records but any one of the opposites not settled her claim.
11. With these undisputed facts between the parties. Now we have to appreciate the evidences of the parties on the following points as those are disputed points between the parties are:-
The first point that was canvassed by the learned advocate for opposite No-1 before us is that, as per the pleadings and documents filed by the complainant, her case is of missing of his mobile set, it was not subjected to theft or damage. Hence the coverage of Insurance of the said set by opposite No-3 is not covering the missing cases of mobiles, accordingly complainant is not entitled for the claim.
12. In pursuance of this submissions we have gone through the documentary evidences, affidavit-evidences and written arguments filed by the complainant and opposite No-1 and 2, we are agree with this submission of the learned advocate for opposite No-2, for the simple reason that, no doubt the complainant has filed her complaint before the Sadar Bazar PS, well within time stipulated under the Insurance Act but the contents of the complaint are not very much clear about whether the mobile set and vanity bag was missed or stolen by any other person as contended by the complainant in her complaint. Further the said complaint is also discloses that, herself and her husband were traveling in a motor cycle and the complainant was pillion rider and her husband was riding the vehicle. Under such circumstances we do not find any reasons to believe that, the said mobile has been stolen by any other persons and her complaint before the police is as theft of her mobile because the contents of the complaint and her complaint or showing that, they were on motor cycle while returning theft has been committed this version of the complainant is totally under confusion. It is not the case of the complainant that, her mobile was stolen from her vanity bag and that was stolen in the middle of the heavy mob or at particular place where they were under un-control mob. Further it is not the case of the complainant that, along with them some other un-persons were there with them and they might be stolen it from her vanity bag. In the complaint and complaint before the police she has clearly stated that, while she was returning to home on husband vehicle the mobile and vanity bag were stolen. This version cannot be believed as it is not near to the true fact regarding theft. On the contrary it is also clearly goes to show that, she has lost it by her own negligence as contended by the opposite in their version. Hence, we have come to the conclusion that, the theft against the mobile and vanity bag was not happened as contended by her complaint.
13. After close perusal of the policy submitted by the opposite No-2 under Ex.R-2 it is very clear that, the policy in question is covering only for fire, riot, strike, terrorist activity, theft by un-known person and loss or total damage arising out of road accident only. But not loss or damage arising out of negligence, carelessness, poor care and maintenance, intentional and willful act etc., These are the conditions are very much are available on the insurance policy produced by opposite No-2. In the present case, no such theft has been occurred as contended by the complainant as discussed supra. Under such circumstances, neither opposite No-1 nor 2 have committed any breach of policy conditions. On the other hand, the complainant herself has claimed against the policy terms and conditions. Therefore the opposite have rightly repudiated the claim of the complainant. Hence we do not find any reasons to believe that, opposites have committed any deficiency in service in not settling the claim of the complainant.
14. The complainant in order to prove he rcase, she has referred the judgment of our own Forum case No. 78/2010 but the said decision of this Forum is having different facts than the facts of the case in hand. In the said judgment the complainant was traveling in the Bus and accompanied by number of passengers and he noticed loss of his mobile after some time but here in this case the complainant her husband were traveling in their two wheeler vehicle and they have lost their mobile along with her vanity bag. Further it is also not the perfect case of the complainant that whether that has been missed or stolen by some other persons. Her complaint before this police is not sure regarding theft or missing. Mere stating in the complaint (filed before this forum) cannot suffice the case of theft without any proper evidence. Therefore we have not accepted the same. Further, the complainant has also filed another five rulings namely: (1) II 2010 CPJ 9 (SC), (2) II 2011 CPJ 272 (NC), (3) II 2011 CPJ 170 (TSCDFC), (4) II 2011 CPJ 132 (NC) and (5) IV 2009 CPJ 96 (Orissa State Commission) we have gone through the above cited rulings and dictum laid down under the said rulings. The facts involved in the said rulings are quite different from the facts in hand case. Hence, with great respect we have not accepted the rulings submitted by the complainant. On the other hand, the counsel for opposite No-2 has filed two rulings. One of is of our Hon’ble National Commission and the judgment of Bijapur District Consumer Forum, the dictum of judgment of National Commission is that, on time t make a complaint. No doubt the said judgment clearly held that, complaint is to be filed within a stipulated time, but in this case no doubt the theft has been occurred on 19-11-2010 at about 5:00 PM and the complaint has been filed on 20-11-2010 there was a delay of near about one day of course for this also no explanation from the complainant in her complaint before this forum. Under such circumstances, delay in filing the complaint about the theft is also against the insurance act on that ground also the complaint of the complainant is not according to the insurance act. Hence the contention of the opposite in this regard holds good as per the dictum laid down under the ruling of National Commission.
No doubt the another judgment filed by the Bijapur District Consumer Forum may be related to the case of the opposite but we have not considered as it is the judgment of District Forum which cannot binding on this Forum. Under the above circumstances, we do not find any deficiency in service on the part of the opposites and on the other hand, the complainant has absolutely failed to prove her case, hence we have answered Point No-1 in negative.
POINT NO.2:-
15. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is dismissed as devoid of merits.
Both the parties have bear their own cost.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-05-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
