BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 27/2013.
THIS THE 14th DAY OF MARCH 2014.
P R E S E N T
1. Sri. Prakash Kumar B.A. LLB. PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- K.C. Veeresh Babu S/o. K.C. Veeranna,
Age: 38 years, Occ: Advocate, R/o. Panduranga Ratna Apartment, 1st floor Opp: Raghavendra Swamy Kalyanmantapa, now R/o. Chandra Residency, H.No. 7-5-319, Ground floor, Jawaharnagar Raichur.
//VERSUS//
RESPONDENTS :- 1. The Proprietor,
Univercell Telecommunications India Pvt. Ltd., Branch near Kubera Palace, Raichur.
2. The M.D. Oriental Insurance Co. Ltd., CB01, India Life Bldg., Trichy Road, Coimbatore- 641018 Tamilnadu.
3. The Managing Director, ALEGION Insurance Broking Ltd., Reg. Off New No. 7C Perumal Koil Street, Nerukundram, CHENNAI- 600017.
Date of institution :- 27-04-2013.
Date of disposal :- 14-03-2014.
Complainant represented by Sri. T.M. Swamy, Advocate.
Respondent No-1 represented by Sri. Shanker Patil, Advocate.
Respondent No-2 represented by Sri. Vikram Nair, Advocate.
Respondent No-3 In person.
ORDER
By Sri. Prakash Kumar, President:-
The complaint is filed by the complainant against the Respondents U/sec. 12 of Consumer Protection Act 1986.
2. The complaint in brief is that, the complainant purchased Nokia E-72 black colour mobile hand set on 05-03-2011 for Rs.15,999/- from Respondent No-1 who collected Rs.500/- towards mobile insurance and other services. On 15-05-2011 at about 11:00 AM the complainant went to market for purchasing fruits. There he intended to contact his house through his mobile phone and at that time he came to know that it was stolen by someone. He searched for the same, but of no use. Hence he lodged a complaint before Sadar Bazar PS Raichur at about 13:15 hours. He also contacted Respondent No-1 and reported the same and requested to indemnify the loss of the mobile phone, he gave claim form pertaining to Respondent No-2 intimating to contact Respondent No-3 for claim. Accordingly the complainant submitted claim form and Respondent No-3 sent requisition for submitting FIR & other documents intimating the terms and conditions of the insurance policy which were not intimated at the time of purchasing the mobile hand set. But now Respondent Nos.1 to 3 are imposing the terms and conditions of the claim. Therefore imposition of the terms and conditions at the time of claim unilaterally by Respondents is nothing but deficiency in service or unfair trade practice. The policy had been taken by Respondent No-1 on behalf of the complainant by collecting the premium from him and thereafter the Respondent Nos.1 to 3 neither issued policy copy nor intimated any terms and conditions of the policy. Therefore the complainant got issued legal notice to Respondent Nos.1 to 3 for which the Respondent No-3 gave reply repudiating the claim of the complainant. Therefore the complaint seeking reliefs as prayed for.
3. The Respondent No-1 filed the written version stating that the complaint is not maintainable and is liable to be dismissed with costs. It is true that the complainant purchased Nokia E-72 mobile hand set. The contents of Para- 2 of the complaint are not within the knowledge of Respondent No-1. However the complainant twisted the matter that on 15-05-2011 at about 11:00 AM when he was purchasing the fruits the mobile hand set was stolen by someone. On going through the complaint lodged by the complainant it is found stated that mobile hand set was lost by him on alleged date and time. The insurance coverage is only in case of theft of mobile set and as such Respondent No-1 is not responsible to compensate the complainant. In para-4 of the complaint the complainant again admitted that he lost the mobile and therefore the question of paying any compensation does not arise. There is negligence on the part of the complainant but no deficiency in service by Respondent No-1. Respondent No-1 is only the seller of mobile set and hence has no power to repudiate the claim or settle the claim. The Respondent No-1 is carrying the business on the direction of Respondent No-3. The Respondent No-1 is to facilitate servicing the customers of Univercell Telecommunication India Pvt. Ltd., in the event of any claim by collecting the documents and forwarding the same to insurer. The sole authority for approving or rejecting any claim is vested with Respondent No-2. Therefore the complaint be dismissed with heavy costs in the interest of justice.
4. The Respondent No-2 filed the written version stating that the complaint is an abuse of process of this forum and same is liable to be dismissed against the Respondent No-2 as it is based on false and frivolous allegations. There is no privity of contract between the complainant and Respondent No-2. Consequently the complainant is not entitled for any monetary benefits from Respondent No-2. The complaint is bad for mis-joinder of parties. Respondent No-2 is not at all the necessary party. The policy issued does not cover the risk for loss of mobile due to negligence and carelessness. The complaint to the police reveals that the mobile set was lost due to carelessness and negligence of the complainant and not due to theft. Therefore the complainant is not entitled for any monetary benefits from Respondent No-2. The loss of mobile was not due to theft or by violent means or threat to use violence. It was not stolen from locked building or car to which the thief had gained access by force. The loss of mobile was due to carelessness and negligence of the complainant. The loss of mobile is hit under the exclusion clause. The complainant to make illegal monetary gains had lodged a false complaint. The complaint on the face of it is devoid of any material substance and the same is liable to be dismissed against the Respondent No-2. No deficiency in service or unfair trade practice be attributed on the part of Respondent No-2. This forum lacks jurisdiction to entertain the complaint. The compensation claimed is highly exaggerated and is on the higher side. The mobile is very old set of more than 180 days. As such 50% has to be deducted towards depreciation. The complainant is an Advocate and terms and conditions which are annexed to the policy and bill has been read and understood by him. It is denied that the terms and conditions of the policy were not intimated to the complainant. The same is urged to make illegal monetary gains. The complaint is barred by limitation. The complaint is frivolous and vexatious and deserves to be dismissed against the Respondent No-2 with exemplary costs. All the allegations which are not specifically traversed are denied as false. Therefore the complaint be dismissed with costs.
5. The Respondent No-3 sent the written version by post stating that the mobile purchased by the complainant was insured with the Oriental Insurance Company Ltd., They are only the intermediaries/(Insurance Brokers) for United Telecommunication India Pvt. Ltd., As per IRDA regulations every insurance broker has the word “Broker/Broking” incorporated in their name, so as to ensure that the insuring public are not confused in identification. As Insurance Brokers they only facilitate servicing the customers of Univercell Telecommunication India Pvt. Ltd., in the event of a claim by collecting the documents and forwarding the same to the insurer. They are not authorized to settle/ repudiate any insurance claim. The sole authority for approving or rejecting any claim is with insurance company. Hence the complaint be closed.
6. Complainant to prove his case filed his affidavit which is marked as PW-1 and relied on six documents which are marked as Ex.P-1 to Ex.P-6. The Respondent Nos.1 & 2 to prove their case filed their affidavit evidence which is marked as RW-1. No documents are produced.
7. Arguments heard on complainant’s side and on 2nd Respondent side.
8. The points that arise for our consideration are:
1. Whether the complainant proved deficiency in service on the part of the Respondents against him.?
2. Whether the complainant is entitled for the reliefs prayed for.?
3. What order?
9. Our answer on the above points are as under:
(1) In the affirmative as against the Respondent No-2.
(2) Partly in the affirmative as against the Respondent No-2.
(3) As per final order:
REASONS
POINT NO.1 :-
10. The purchase of Nokia E-72 mobile hand set by the complainant from Respondent No-1 is admitted by Respondent No-1. The insurance coverage by Respondent No-2 for the said set purchased by the complainant is also admitted by the Respondent No-1 as well as Respondent Nos. 2 & 3. The said mobile set purchased by the complainant being lost by the complainant, is not disputed by the Respondents. However the Respondents contended that the complainant is not entitled for any compensation towards mobile hand set lost by him. In this regard the Respondent No-1 contended that the insurance coverage is only in case of theft of mobile hand set and as the complainant admitted that he lost the mobile hand set, as per the complaint lodged before the police and the loss being due to negligence on the part of the complainant the question of paying any compensation does not arise. The Respondent No-2 contended that there is no privity of contract between the complainant and themselves and the policy issued does not cover the risk for loss of mobile due to negligence or carelessness and as the complaint to the police reveals that the mobile set was lost due to carelessness and negligence of the complainant and not due to theft, the complainant is not entitled for any monetary benefits from Respondent No-2 as per exclusion clause incorporated in the policy.
11. In the light of the above contention raised by the Respondents we take recourse to the contention raised by the complainant which is that the policy had been taken by Respondent No-1 by collecting the premium from him and thereafter the Respondent Nos.1 to 3 neither issued the policy copy nor intimated any terms and conditions of the policy and when he made claim with them they intimated about the terms and conditions of the policy which were not intimated at the time of the purchase of the mobile hand set and imposing and taking recourse to the terms and conditions at the time of claim is nothing but deficiency in service or unfair trade practice on the part of the Respondents. On the basis of this contention raised by the complainant his counsel vehemently argued that the insurance company is required to state the scope of benefits, the extent of insurance cover and in an explicit manner explain the warranties, exceptions and conditions of the insurance cover while issuing the policy cover and if this procedure is not followed then the unexplained exclusion clauses are required to be ignored. In support of this contention the learned counsel for the complainant relied on decisions of Hon’ble National Commission reported in III (2007) CPJ 34 and (2010) CJ 190 and 2012 CJ 832. In the decision reported:
‘Exclusion Clauses’ are required to be ignored if the insurance company or its agent or intermediary does not adhere to the mandatory requirement of explaining the ‘Exclusion Clauses’ before issuance of insurance cover.
The procedure prescribed under Regulation 3, is required to be followed. In case the said procedure is not followed, apart from aforesaid consequences, the Regulatory Authority can take action under Regulation 11(4) against the Insurance Company
In the decision reported in III (2010) CJ 190 it is held
Being aware of the existence of the policy is one thing and being aware of the contents and meaning of the clauses of the policy is another. It is not the case of the insurance company that the contents and the meaning of the policy were made known to the complainant (SMS). It is also nowhere on record that the insurance company had explained the meaning of all the exclusion clauses to the bank and requested them in turn to bring them to the notice of the complainant.
An insurer or its agent or other intermediary shall provide all material information in respect of a proposed cover to the prospect to enable the prospect to decide on the best cover that would be in his or her interest.
In our view, the unexplained or unnoticed exclusion clauses would not be binding to the insured. The reason being the Regulations are of mandatory in nature so as to protect the consumers’ interests.
‘Exclusion Clauses’ are required to be ignored if the insurance company or its agent or intermediary does not adhere to the mandatory requirement of explaining the ‘Exclusion Clauses’ before issuance of insurance cover.
12. Here in this case also nowhere it is stated by the Respondents that the terms and conditions of the policy including exclusion clauses were explained to the complainant. Under the circumstances explained by the complainant there was no chance for him either to receive the copy of the policy with terms and conditions etc., and to go through the same and under stand its implications. Because as per complainant the policy copy was not furnished to him and terms and conditions were not made known to him. As per the Respondents themselves the insured is the Respondent No-1 and the policy Ex.R-1 reveals that it was a group mobile insurance under which 3378 mobiles were covered for Rs.1,35,35,565/- by receiving total premiums of Rs.1,08,284/-. Therefore the insurer informing terms and conditions of the policy to each and every mobile holder/insured was highly impossible and improbable. Besides this the mobile set was purchased on 05-03-2011 and the insurance policy is dt. 09-03-2011. This shows that the mobile set of the complainant was not insured when he purchased it. The insurance policy came into existence subsequently. Therefore it is highly probable that there was no chance and no occasion for the complainant to get insurance policy. All these makes out a clear cut case in favour of the complainant that the policy papers were not supplied to him and he was not informed about the terms and conditions as well as exclusion clauses by the Respondents with regard to the policy of insurance which covered the mobile hand set purchased by him. Therefore any terms and conditions and exclusion clauses incorporated in the said policy are liable to be ignored and cannot be made applicable to the complainant. Therefore the Respondent No-2 being the insurance company is liable to pay compensation to the complainant towards loss of his mobile hand set which Rs.16,000/- as per Ex.P-1 issued by Respondent No-1. The Respondent No-1 being the insured and the Respondent No-3 being the intermediary to Respondent No.2 are not liable to pay compensation to the complainant. Therefore the complaint is liable to be dismissed against the Respondent Nos.1 & 3.
For the reasons discussed above, the non payment of the compensation towards loss of mobile hand set by Respondent No-2 to the complainant amounts to deficiency in service on their part. Accordingly this point is answered in the affirmative.
POINT NO.2:-
13. As the complainant has proved deficiency in service on the part of Respondent No-2, he is entitled for compensation for the loss of mobile hand set along with cost of the proceedings which shall be as per final order. Accordingly, we answer this point partly in affirmative.
POINT NO.3:-
12. As per order below:
ORDER
The complaint filed by the complainant is partly allowed with cost against Respondent No-2.
The complainant is entitled to recover sum of Rs.16,000/- towards compensation from the Respondent No-2.
The complainant is also entitled to recover sum of Rs.1,000/- towards cost of the proceedings from the Respondent No-2.
The complaint filed by the complainant as against the Respondent No-1 & 3 is dismissed.
Respondent No-2 is given one month time from the date of this order for making payment of the above said amount.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 14-03-2014)
Smt.Pratibha Rani Hiremath Sri. Gururaj Sri. Prakash Kumar
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
