DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 24th day of September   2021

Present   : Sri.Vinay Menon.V  President

                : Smt.Vidya.A, Member                                                                           Date of Filing: 28/11/2018

CC/158/2018

Mukundan Unni

S/o.Late Midhila,

“Midhila” By Pass Junction

Chandranagar PO

Palakkad  - 678 007                                                                                          -                       Complainant

(By Adv.K.N.Sreelatha)

                                                                                                                Vs

1.The Senior Divisional Manager

    United India Insurance Co.Ltd.

    Divisional Office,  3^rd Floor

    Malabar Fort, Palakkad – 678 001

2.The Mangaer

    United India Insurance Company Ltd.

    Soorya Complex,

    Palakkad – 678 014                                                       -                       Opposite parties  

 (By Adv.Sreenivasan)

O R D E R 

By  Smt.Vidya.A. Member  

Brief  facts of the complaint.

1. The complainant took a house hold insurance policy bearing No.1012012616P11022019 from the opposite party company for the period from October 2016 to October 2017 (27/10/2016 to 26/10/2017) which was renewed for a further period of one year upto October 2018. The TV set -  Samsung LED was also insured for a sum of Rs.56,000/- On 3/10/2017, the TV set had some audio problem and a complaint was lodged to M/s.Samsung and it was set right on 15/10/2017 and the amount spent was reimbursed by the Insurance company.

On 16/10/2017 or 17/10/2017, the TV set developed some problems again and it was reported to Samsung and the service engineer visited his house to inspect the TV. The engineer reported that the mother board is to be replaced and took the TV for repair and returned without repairing  as the spare part is not available. A letter dated 19/10/2017 is also issued by Samsung Service Centre informing that the spare parts is not available in Samsung stores to settle the claim.

On 20/10/2017, the Surveyor of United India Insurance Company visited the complainant’s house. Eventhough he was convinced that the TV set will not work without replacement of spare parts, he told that  the service centre in its letter states that “spare part is not available at present only” and so when it becomes available, the complainant  should  repair and claim compensation.

On the request made by the complainant, the Samsung service centre on 21/10/2017 issued another letter stating that “spare parts are not available in the stores and he submitted this letter along with  a request to settle the claim to the Insurance Company on 23/10/2017. The complainant  attended a conciliation meeting with the Manager and supervisor of the 2^nd opposite party and they did not give any satisfactory reply regarding the claim  logdged by the complainant.

By this time  since the policy was expiring, the complainant  was asked to renew the policy for another  one year and even at that time the TV set was insured for a sum of Rs.56,000/-.

The complainant received a letter from the 2^nd opposite party on 7/11/2017 stating that he has to submit the claim along with bills for the reimbursement of repair charges.    On 19/1/2018 the complainant sent a letter to the 1^st opposite party that the case is pending in their office from 9/11/2017.The complainant wrote letter to the Regional Office of the opposite party at Kochi on 19/1/2018, but there was no reply. Then he received a letter on 6^th or 7^th October 2018 from the 1^st opposite party to submit the claim after repair as they have already informed on 6/11/2017.

On 26/4/2018, the complainant approached the Samsung dealer  in Palakkad  and requested to place order for the spare part if available. The dealer informed him that  the part arrived was defective and it could not be used. Again he wrote a letter on 5/5/2018 to the service centre for which they informed that “spare is not available at present.” This shows that the spare is not available for a period of 7 months from October 2017 to May 2018. The complainant was convinced that the TV cannot be repaired without the spare part and the service centre is not sure about its availability in future.

The TV set is insured as an “Apparatus” and now it cannot perform the activity without repair which means it is condemned or beyond repair. Being convinced of this fact, the complainant  bought another Samsung TV set costing more than Rs.56,000/-.

Lawyer notice  was sent to the opposite parties on 11/6/2018 claiming for a total loss settlement for the sum of Rs.56,000/- and he is not prepared to settle the claim on the basis of partial settlement suggested by the opposite parties for Rs.8048/-. The opposite parties sent reply opposing the claim . In the reply notice the opposite parties had put up a totally new false case of “short circuiting and erratic power supply” for the first time  and they had not raised such a contention earlier. This is clear deficiency in service and unfair trade practice by the opposite parties, especially when the policy was prompted  to be renewed by the opposite parties and accordingly it was renewed and that too for the same amount.  Due to the act of opposite parties in denying the legitimate claim of the complainant without sufficient reasons, the complainant suffered mental agony, harassment and deprived of using the TV set which is considered as an essential service of every  day life.

So this complaint is filed for directing the opposite parties to pay a sum of Rs.56,000/- being the value of TV set insured with the opposite party with interest thereon at the rate of 9% per annum from 17/10/2017 and to pay Rs.10,000/- as compensation for the inconvenience, hardship and damage caused to the complainant by the act of the opposite party.

2. Complaint admitted and notice issued to the opposite parties. The opposite parties entered appearance and filed their version.
3. The main contention in the version of the opposite parties

The opposite parties had paid the amount spent by the complainant for repairing the TV on 15/10/2017. Then the TV again became defective  on 16^th or 17^th October and the service engineer of Samsung Company inspected and informed that they cannot repair  it now as the spare part is not available at present and asked the complainant to wait for some time to cure the defective part. On 21/10/17 the authorized engineer of Samsung issued a letter stating that the spare part is not available at present. The opposite parties are only liable to indemnify the petitioner for the amount spent for the spare parts and labour charges. The Samsung company,  the manufacturer of the TV is not yet reported that the mother board is not available. Since the TV is an old model, it will take some time to get the spare parts and the complainant has to wait. It is the duty of the manufacturer to provide spare parts in time. The non availability of the spare part is not a deficiency on the part of the opposite parties.

The approved surveyor of the opposite parties inspected the TV and prepared report. As per the report, the cost of the defective part (PCB) and labour charges amount to Rs.8048/- and they are only liable to pay the said amount. Even though the TV is insured with the opposite parties for an amount of Rs.56,000/-, the opposite parties are not liable to pay that amount.  The non availability of the spare parts perhaps may constitute deficiency of service on the part of the manufacturer or dealer alone. As far as the insurance company is concerned the indemnification is possible only to the extent and limit of producing the actual price of the change of spare parts within the limits of the policy. So there is no deficiency in service or unfair trade practice on the part of the opposite parties. The contention in the complaint that the TV set is beyond repair and the complainant had to buy another Samsung TV set costing more than Rs.56,000/- is incorrect and denied. In this case, only the mother board of the TV is to be replaced and the opposite parties are liable only to pay the amounts spent for spare parts and labour charge. If there is any delay caused for making available the spare parts of the TV, it is the duty of the manufacturer to make it available in time. The spare part is not available at present only, it doesn’t mean that it is not at all  available. If there is any deficiency, that is only on the side of the manufacturer  and the service centre of the TV for which the opposite parties are not liable to compensate.

As per the terms and conditions of the policy, the insurer is liable to compensate the amount incurred  for repairing the damaged TV and they always insist the bill for settling the claim. In this case no bill showing the repair charges or the amount spent for purchasing the damaged part is produced by the complainant. Hence the opposite parties appointed a surveyor and as per his report the opposite parties are liable to pay an amount of Rs.8048/- only. Hence the complainant is not entitled to claim any reliefs prayed in the complaint and it has to be dismissed with cost to the opposite parties.

4. Complainant filed chief affidavit and Ext.A1 to A5 were marked.  Opposite parties  also filed chief affidavit  and Ext.B1 marked.
5. In the light of the above pleadings and the evidence on record the points arising for consideration are

1. Whether there is any deficiency in service/unfair trade practice on the part of the opposite parties?
2. If so, what is the relief as to cost and compensation ?

Both parties filed notes of argument. Heard both parties.

Point Nos.1&2

6. It is admitted fact that the complainant took householder’s Insurance policy from the opposite parties for the period from 27/10/2016 to 26/10/2017. As per the policy, complainant’s Television set was insured for an amount of Rs.56,000/-. It was a SAMSUNG SMART LED TV manufactured in the year 2012.

As per the complaint, on 3/10/2017, the TV set had some audio problems and it was set right by ‘Samsung’ and the amount  spent was reimbursed by the opposite party company. Again the TV had some problem on 16/10/2017 or 17/10/2017 and the Engineer from Samsung visited the complainant’s  house and reported that the mother board  is to be replaced and he took it but returned it without repairing as the spare part was not available. The service centre  of Samsung “UNIQUARE” sent a letter to the complainant which is produced and marked as Ext.A4. As per Ext.A4, the main board of the TV is to be replaced and being an old model (more than 5 years)  at present board is not available at Samsung stores.

7. As per Ext.B1 survey report, the damaged PCB Assy has to be replaced for reinstating the TV set into the former state of serviceability . The surveyor has assessed Rs.8,048/- as the expenses of spare parts and labour charges and the opposite party has agreed to pay that amount.
8. According to the  complaint, when he  approached the Samsung dealer in Palakkad, after 6 months they informed that the part arrived was defective and hence it cannot be used.   So as per the complainant’s contention, he waited more than 7 months for the spare parts.   
9. The TV was purchased in the year 2012 and it became defective after 5 years. It is for the manufacturing company to maintain necessary spare parts for the purposes of carrying out any repairs that may be required for a reasonable period. The manufacturer has to supply the parts of the product.  Normally, the manufacturer,  as per their policy, in case of any unforeseen circumstances and the required part not being available, provides commercial solution to the customers in lieu of repairs as per company’s prevailing depreciation rules. So even in the case where the warranty period is over, the manufacturer is liable to supply the parts of the product for a reasonable period even if it is outdated. Here the manufacturer has not expressed his inability to supply the product. As the technology continues to change from time to time and any product that is purchased today is likely to be outdated with the change of technology and particular part may not be available in case of change of technology or even in the case of upgradation of goods. So it is clear that the manufacturer is liable to supply the parts for a reasonable period, even if  the warranty period is over. For that the insurer cannot be held liable.  
10. But one unfair trade practice is  glaring  on the face of the conduct of the  opposite parties.  The opposite party had insured the TV set for an amount of Rs.56,000/- and premium was also paid based on that amount. The TV set was 2012 model and when they insured it after 4 years, it was insured for this amount. Moreover, when the policy period expired on 26/10/2017, it was renewed again for the same amount without any depreciation and the premium was also received. 

Hence the Insurance company had renewed the policy for another one year for the same amount without applying the depreciation rules. The opposite party is well aware that the product is getting out dated each year and as the technology changes, new model TV’s are manufactured every year and it is very difficult to get the spare parts of  the old model in case of repair / replacement.

The opposite party who has a fiduciary relationship cannot hide behind the usual slogan of  uberrimae fidei  and that the valuation was made by the insured. They had a duty to look into the contents of the proposal. Once having  accepted the proposal  the conduct of the opposite parties to cry foul once a claim raise is deplorable.  By this silence when a premium is paid, the company stands to gain immensely which is nothing but unjust  enrichment.  From one customer this amount is meager, but when collected like this from thousands of customers this meager amount escalates  into a huge amount. 

11. Another instance of deceit played by the opposite party is clear when one goes to analysis the contents of Ext.A5 policy.  In Section VI-Television, the opposite  party undertakes to indemnify the insured in respect of “Loss of or damage to the Television Apparatus described in the Schedule whilst contained or fixed in the insured premises.”  But in Ext.A3, in the second paragraph, they qualify the aforesaid undertakings as follows: “As per the terms and conditions of the Policy, we are liable to compensate the amount incurred  for repairing the damaged TV set.”  This is nothing but unilateral variation of the terms and conditions. The change is slight, but impact much harder.

For the aforesaid two unfair trade practices resorted to by the opposite parties, we are of the opinion that the opposite parties  are liable to compensate the complainant.

12. In the result the complaint is partly allowed.  In addition to the agreed amount of Rs.8,048/- for claim settlement, we direct the opposite party to pay  Rs.15,000/- (Rupees Fifteen thousand only) as compensation and Rs.7,000/- (Rupees Seven thousand only)  as cost of the proceedings. 

 The order shall be executed within 45 days from the date of receipt of this order; otherwise complainant is also entitled to get interest @ 9% per annum on the total amount due to them from the date of this order till realization.

   Pronounced in the open court on this the 24^th   day of September   2021.

                                                                                         Sd/-

                                                                               Vinay Menon V

                                                 President

    Sd/-

Vidya.A

                    Member     

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 –  Registered lawyer notice date 11/6/2018 with AD card

Ext.A2 –Reply notice dated 2/7/2018   

Ext.A3 –  Notice of United India Insurance Co. dated 7/5/2018

Ext.A4 – Notice of Uniquare exclusive Samsung Service Center dated 5/5/2018

Ext.A5 – Insurance Policy issued issued by United India Insurance Co. dated 27/10/2016

Exhibits marked on the side of the opposite party

Ext.B1 – Copy of the Survey Report dated 3/11/2017 alongwith estimation

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

NB : Parties are directed to take back all extra set of  documents submitted in the

         proceedings in accordance with Consumer Protection (Consumer Commission

         procedure) Regulations, 2020.