C.C. filed on:26.05.2016
C.C. Disposed on:24.03.2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, TUMKUR
DATED THIS THE 24th DAY OF MARCH – 2017
C.C. No. 73 OF 2016
:PRESENT:
SMT. PRATHIBHA. R.K. BAL LLM. PRESIDENT,
SMT. GIRIJA, B.A. LADY MEMBER
COMPLAINANT/S:
Archana T.S. D/o Srinivasa Rao .H
Aged about 24 years, Sri. Sayeekrupa,
2nd Main Road, Gokula Badavane,
Tumakuru – 4
( By Sri/Smt. B. Soumya – Advocate)
-V/s-
OPPOSITE PARTY/IES
1. The Proprietor/Manager,
Sangeetha Mobiles Private Limited,
Branch;CSI Layout Building,
Opposite to Jayadeva Complex,
B.H.Road, Tumakuru – 01.
2. The Proprietor/Manager,
Impana Enterprises,
G-5, Annapurna Archade,
Near Doddamane Nursing Home,
B.H.Road, Tumakuru.
3. The Manager,
Edalvees Insurance Brokers Limited,
No.102, 10th Floor, Sahakara Bhavan,
No.230, Nariman Point,
Mumbai – 400 021.
4. The Manager,
National Insurance Company Limited,
Kasturi Mansion, Upon Corporation
Bank, Behind Krishna Theatre,
M.G.Road, Tumakuru.
( OP-1& 2 – Ex-parte)
(OP No.3 – Not appeared)
(OP No.4 - By Sri./Smt. K.V. Srinivasa Naidu - Advocate)
: O R D E R :
BY SMT. GIRIJA - MEMBER
The complainant has filed this complaint under section 12 of the Consumer Protection Act 1986 against the OPs alleging deficiency in service on the part of OPs and prays to direct the OPs to pay Rs.1,850-00 towards mobile repair cost and Rs.5,000-00 towards other expenses.
The brief facts of the complaint are as under:-
2. The complainant purchased LAVA IRIS – XI Grand mobile phone bearing IMEI No. 1.911424853169381, 2.9114248533217586 on 05.06.2015 from OP No.1 under bill No.SI/TYM/611 by paying Rs.6,430-00. Further, the complainant obtained insurance policy to the above said mobile phone under policy No.260200/46/14/9500000235 & 1900215810 from OP No.3 through OP No.1.
The complainant further submits that the display of the mobile phone got damaged due to fall and in this regard the complainant approached the OP No.1 and on the advice of the OP No.1 the complainant approached the OP No.2 on the same day and got repaired her mobile phone through OP No.2 on 30.01.2016 by paying Rs.1,850-00.
The complainant further submits that to claim the repair cost from OP No.3, the complainant submitted relevant documents along with insurance claim form on 01.02.2016 to OP No.3 through courier. The OP No.3 instead of paying the repair cost asked through message to send damaged mobile photos.
The complainant further submits that as because she was busy in her studies, her Father sent the relevant documents to the OP No.3 and requested the OP No.3 to settle the claim, but OP No.3 did not settle her claim. Hence, the complainant filed this complaint.
3. Upon service of notice, the OP Nos.1 & 2 remained absent in spite of receipt of notice. Hence, OP Nos. 1 & 2 placed Ex-parte. The OP No.3 sent version through post. The OP No.4 appeared through his counsel and filed version.
The OP No.3 in his version has stated that the complainant availed the insurance facilities from National Insurance Company Limited who is a proper and necessary party to the present complaint and on this ground also the complaint is liable to be dismissed. The complaint is also not maintainable as the complainant is not a consumer of this OP as defined under section 2(d) of the Consumer Protection Act 1986.
The OP No.3 further submitted that this OP is an Insurance Broker whose role is only to facilitate the settlement of claims of customers of OP No.1 and this OP provided service to the complainant free of charge, as such the complainant cannot be said to be a consumer of OP and the complaint does not fall within the ambit of “consumer.
The OP No.3 further submitted that the complainant has paid the premium to the National Insurance Company Limited through OP No.1 and not this OP and therefore this OP is not liable to pay any amount to the complainant as alleged and the National Insurance Company Limited who scrutinizes the claim and consider further as per the terms and conditions of the insurance policy, thus the present complaint is liable to be dismissed against this OP.
The OP No.3 further submitted that the complaint filed by the complainant is bad in law and also the complaint is false, frivolous, and vexatious and gross abuse of process of law and further there is no cause of action against this OP, hence the complaint is liable to be dismissed.
The OP No.3 further submitted that they have forwarded all the original documents pertaining to the claim of the complainant to the National Insurance Company Limited on 15/02/2016 and thereafter the National Insurance Company Limited has repudiated the claim of the complainant stated that the handset repair done prior to approval. Hence, there is no deficiency of service on the part of this OP and this OP is not liable to pay any amount to the complainant as claimed.
The OP No.3 further submitted that the complaint filed by the complainant is devoid of material particulars and the complaint filed by the complainant is to harass this OP and therefore prays to dismiss the complaint against this OP in the interest of justice.
The OP No.4 in his version submitted that the screen display damage occurred to the complainant’s mobile only due to the negligence of the complainant and for the same this OP is not liable. The OP No.4 further submitted that the damaged handset not initiate any repairs prior to consent by the competent authority and the complainant also go against the terms and conditions of the policy, the same is seriously prejudice the claim as per the policy conditions.
The OP No.4 further submitted that the complainant failed to supply all such documents and bills to the office of this OP and for the same this OP has served the copy to the office of Sangeetha Mobiles under reference No.SMCL3041-ARCHANA T.S. and also to the complainant and also to the office of 1st OP on 08.04.2016 by mail and by courier service regd. A/D, but till date the complainant not produced or not supplied such documents to the office of this OP. Hence, there is a defect on the side of complainant and the complainant also violated the policy conditions i.e. hand set repair prior to approval. Apart from that, the this OP has denied the allegations made by the complainant and thereby prays to dismiss the above complaint against this OP in the interest of justice and equity.
4. The complainant and OP No.4 filed affidavit evidence. The complainant has not marked any documents though produced copies of documents. The OP No.4 marked the documents as Ex.R1 to R5. Heard the arguments on both side. Based on the above materials the following issues will arise for our consideration.
- Whether there was deficiency in service on the part of the OPs as alleged by the complainant?
- What Order?
5. Our answer to the above issues are as under:-
Issue No (1) : In the Affirmative
Issue No (2) : As per final order below
: REASONS:
Issue No. (1):-
6. On perusal of the pleadings, evidence and documents it is an admitted fact that the complainant had purchased the LAVA IRIS – XI Grand mobile phone bearing IMEI No. 1.911424853169381, 2.9114248533217586 on 05.06.2015 from OP No.1 under bill No.SI/TYM/611 by paying Rs.6,430-00. Further, it is also an admitted fact that the complainant obtained insurance policy to the above said mobile phone under policy No.260200/46/14/9500000235 & 1900215810 from OP No.3 through OP No.1.
7. The contention of the complainant is that due to sudden fall, her mobile phone display got damaged and in that regard she approached the OP No.1 and on the advice of OP No.1 she approached OP No.2 who is authorized service center of the mobile phone and got repaired her mobile by paying Rs.1,850/-. But the insurance company has repudiated her claim stating that approval not obtained before repair.
8. On the other, the OP No.3 contended that the OP No.3 is an Insurance Broker whose role is only to facilitate the settlement of claims of customers of OP No.1 and the OP No.3 provided service to the complainant free of charge. The OP No.3 further submitted that the complainant has paid the premium to the National Insurance Company Limited through OP No.1 and not to the OP No.3 and therefore the OP No.3 is not liable to pay any amount to the complainant as alleged. The OP No.3 further contended that they have forwarded all the original documents pertaining to the claim of the complainant to the National Insurance Company Limited on 15/02/2016 and thereafter the National Insurance Company Limited has repudiated the claim of the complainant stating that the hand set repair done prior to approval.
9. The OP No.4 contended that the screen display damage occurred to the complainant’s mobile only due to the negligence of the complainant and for the same the OP No.4 is not liable to pay any amount. The OP No.4 further contended that the damaged handset not initiated any repairs prior to consent by the competent authority and the complainant also go against the terms and conditions of the policy and the same is seriously prejudice the claim as per the policy conditions. The OP No.4 further contended that the complainant failed to supply all such documents and bills to the office of this OP and for the same the OP No.4 has served the copy to the office of OP No.1 and also to the complainant, but till date the complainant not produced or not supplied such documents.
10. On perusal of the service job sheet issued by OP No.2 it is seen that the complainant has handed over her mobile handset for repair. Further, on perusal of cash bill issued by OP No.2, it is seen that the complainant has paid Rs.1,850/- to OP No.2 to get her mobile repaired.
11. The complainant in her affidavit has stated that due to fall of her mobile phone, the display of her mobile got damaged and in that regard she approached OP No.1 and on the advice of OP No.1, she approached OP No.2 and get her mobile repaired and she does not know anything about taking approval from insurance company before repair of the mobile phone.
12. It is not in dispute that the OP No.1 has collected premium towards insurance and it is the duty of the OP No.1 to take approval from the insurance company before repair of the mobile phone, but the OP No.1 has not done so. Further, it is seen that the OP No.2 though there is an insurance covered for the mobile of the complainant, has collected Rs.1,850/- for repair and the OP No.2 being the authorized service center must know about taking approval from the insurance company before repairing the mobile handset. But, OP No.2 not doing so, has collected Rs.1,850/- towards repair of the mobile phone. Further, the insurance company has repudiated the claim of the complainant only on the ground that the complainant has not taken approval from the competent authority before repair of the mobile handset. When such being the case, the OP No.1 being the seller of the mobile phone and has collected premium towards insurance and the OP No.2 is the authorized service center of the OP No.1 has to take approval from the insurance company. Hence, on the above it is clear that there is a deficiency of service on the part of OP Nos. 1 & 2. Since deficiency of service not proved against OP Nos. 3 & 4, the complaint against OP Nos. 3 & 4 is to be dismissed. .Accordingly, we answer the above points and proceed to pass the following:-
:O R D E R:
The complaint filed by the complainant is hereby Allowed in part.
The OP Nos. 1 & 2 are directed to pay Rs.1,850/- to the complainant along with Rs.3,000/- towards cost and compensation.
The OP Nos. 1 & 2 are directed to comply the above order within one month from the date of this order, failing which the award amount carries 12% interest from the date of complaint to till realization.
The complaint against OP Nos. 3 & 4 is dismissed.
Communicate the orders to the parties.
(Dictated to the stenographer, transcribed and typed by him, then corrected and pronounced in the open Forum on this the 24th Day of MARCH 2017).
LADY MEMBER PRESIDENT
